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FINDINGS OF FACT AND DECISION
Case Number: 167438
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: May 23, 2018
June 1, 2018
Actual Record Closed Date: July 23, 2018
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2018
Attorney — Student
Parents
Impartial Hearing Representative — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 1, 2018
Attorney — Student
Parents
- — Student
Neuropsychologist (via telephone) — Student
- — Student
Principal, School (via telephone) — Student
Director, Coaching (via telephone) — Student
Impartial Hearing Representative — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parent in a due process complaint notice dated July 10, 2017. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) during the 2016/17 and 2017/18 school years (Exs. P-A, P-B, P-C).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).
New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on July 21, 2017 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(i). The parent filed amended due process complaints on July 26, 2017 and February 6, 2018 (Exs. P-B, P-C). See 8 NYCRR § 200.5(i)(7). Pre-hearing conferences were held with the parties on August 31, 2017 and April 11, 2018 to clarify the hearing issues and set dates for the impartial hearing (R. 1, 14). See 8 NYCRR § 200.5(j)(3)(xi). In an Interim Order dated September 19, 2017, I directed the DOE to fund several independent educational evaluations (“IEEs”) of the student (Ex. P-D). See 8 NYCRR § 200.5(j)(3)(viii). Hearings on the merits of the matter were thereafter held on May 23, 2018 and June 1, 2018.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the July 10, 2017 due process complaint, the student was (
- years old and has been diagnosed with an autism spectrum disorder (“ASD”), an attention deficit hyperactivity disorder (“ADHD”), a speech sound disorder, a developmental coordination disorder, obesity, and microcephaly (Exs. P-A at 2, P-J at 1, 15, P-N at 1). During the 2017/18 school year, the student attended the fourth grade at ) in the Bronx (Exs. P-C at 1, P-J at 3, P-K at 1). The student's eligibility for special education and related services as a student with autism is not in dispute in this hearing (Exs. P-A, P-B, P-C, P-E at 1, P-F at 1, P-G at 1, P-H at 1, P-L at 1). See 34
C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]
The student attended early intervention (“EI”) beginning around two years of age. At this time, the student was diagnosed with pervasive developmental disorder (“PDD”). Through
• the student received occupational therapy, speech and language therapy, and
- physical therapy. When the student aged into preschool, he continued to receive physical therapy, occupational therapy, and speech/language therapy through an
-- program (Ex. P-C at 3).
After the student graduated from he was enrolled in .
··- for and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 9-10, 16-17, 31-32, 157-158; Exs. IHO-I - IHO-IX). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
kindergarten. Initially he was placed in a general education kindergarten class. Due to displays of impulsive and self-directed behavior, the student was transferred to an integrated co-taught (“ICT”) classroom during his kindergarten year.[4] The CSE continued to place the student in an ICT class during the 2014/15 and 2015/16 school years, with related services. The student, however, continued to display delayed social and behavioral skills (Exs. P-C at 3, P-H at 6, P-I at 6-7, P-J at 2, P-P at 1).
The CSE convened on June 1, 2016 to develop an IEP for the student for the 2016/17 school year. The CSE recommended that the student receive the majority of his instruction in an ICT class in a community school on a ten (10) month basis. The CSE also recommended that the student receive related services of group (3:1) counseling, one time per week for thirty (30) minutes per session, and group (2:1) occupational therapy, one time per week for thirty (30) minutes per session (Ex. P-G at 5-6, 9-10).
In January 2017, the student was reevaluated by the CSE at the parent’s request. The student was administered the Wechsler Intelligence Scale for Children - Fifth Edition (“WISC-V”) as part of a psychoeducational evaluation. Tests results were as follows: Full Scale IQ - 95 (Average); Verbal Comprehension - 89 (Low Average); Fluid Reasoning - 97 (Average); Processing Speed -114 (High Average). The student’s educational functioning was measured using the Woodcock-Johnson IV Tests of Achievement. Skills areas assessed were Broad Reading (89 - 19th percentile), Mathematics (96 - 45th percentile), Spelling (103 - 59th percentile) and Sentence Writing Fluency (90 - 26th percentile) (Ex. P-L at 8-9).
The CSE reconvened on February 2, 2017 to develop an IEP for the student for the 2017/18 school year. The CSE recommended that the student receive the majority of his instruction in an ICT class in a community school on a ten (10) month basis. The CSE also recommended that the student receive related services of: specialized transportation; group (5:1) counseling, one time per week for thirty (30) minutes per session; group (2:1) occupational therapy, one time per week for thirty (30) minutes per session; and group (3:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-F at 8-9, 12-13).
-
In October 2017, the student participated in an independent neuropsychological evaluation conducted by Psy.D. The student’s cognitive functioning was measured using the Differential Abilities Scale, Second Edition (“DAS-II”). The student’s General Conceptual Ability (“GCA”) score on that test was 89, which was in the Low Average range and at the 23rd percentile. The majority of the student’s scores on the DAS-II fell within the Average range. Weaknesses in patter recognition and working memory impacted his overall score (Ex. P-J at 14).
evaluated the student’s academic achievement using the Wechsler Individual Achievement Test, Third Edition (“WIAT-III”), the Gray Oral Reading Test, Fifth Edition (“GORT-5"), and the Comprehensive Test of Phonological Processing, Second Edition (“CTOPP-2"). Academically, the student demonstrated variable performance. Overall, his writing and math skills were within age-level expectations. The student experienced greater struggles on reading tasks, which appeared related to weak phonemic awareness. In addition to his learning struggles, the student presented with significant executive functioning and problem-solving weaknesses and poor attention and focus (Ex. P-J at 14-15).
-
On October 18, 2017, the student participated in an independent speech and language evaluation conducted by conducted a number of standardized language assessments including: the Oral and Written Language Scales Second Edition (“OWLS-II”), the Clinical Evaluation of Language Fundamentals - 5th Edition (“CELF-5"), and the Word Identification and Spelling Test (“WIST”). The OWLS-II data revealed that the student was performing in the average range in listening comprehension and oral expression. His scores correlated with a below average range for reading comprehension and written expression. The student’s Overall Language Composite score of 80 indicated that his overall language ability was in the below average range. On the WIST, another measure of fundamental literacy skills, the student’s decoding and selling abilities measured below his chronological age and grade. Lastly on the Pragmatics Profile of the CELF-5, the student struggled to adhere to social parameters (Ex. P-K at 9).
The CSE reconvened on January 26, 2018 to review the results of ordered evaluations. The CSE recommended that the student receive the majority of his instruction in an ICT class, with daily special education teacher support services (“SETSS”), in a community school on a ten (10) month basis. The CSE also recommended that the student receive related services of: group counseling, two (2) times per week for thirty (30) minutes per session; group (2:1) occupational therapy, one time per week for thirty (30) minutes per session; group parent counseling and training, four
(4) times per year for ninety (90) minutes per session; and group speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-E at 16).[5]
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE declined to make a presentation at the hearing other than to request that any compensatory services ordered be provided by licensed and certified professionals and that decisions about placement be left to the CSE (R. 30).
B. The Parent
The DOE denied the student a FAPE for the 2016/17 and 2017/18 school years. The student’s IEPs for those school years were deficient on both procedural and substantive grounds. The student should be placed in a nonpublic school (“NPS”) and be awarded compensatory additional services to remedy the denial of FAPE (R. 39-44; Exs. P-A, P-B, P-C).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards 8 NYCRR § 200.1(kk).
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176,
206-07 (1982).[6]
A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142
1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192. The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).
An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R. § 300.320(a)(1);[8] NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A);
From the evidence contained in the hearing record, I find that the student was denied a FAPE for the 2016/17 and 2017/18 school years. The student has issues with his executive functioning; he struggles with inattention and distractibility among other delays. The student can be aggressive and disobedient. The student exhibits expressive and receptive language delays. He attempts to dominate conversations, but his narratives and be disorganized and he had difficulty telling a connected story. The student is selfdirected and impulsive. The student also experiences anxiety around transitions.
The June 2016 IEP did not include an appropriate functional behavioral assessment (“FBA”), or an appropriate behavior intervention plan (“BIP”), or services to address the student’s social skills and interfering behaviors (Ex. P-G).[7] Despite delays evidenced in a June 7, 2016 speech and language evaluation, the CSE failed to provide the student with necessary speech and language therapy services (Exs. P-G, P-Q). Similarly, the February 2017 IEP did not include an FBA, a BIP or SETSS (either during or after-school) to address the student’s academic delays, social skills and interfering behaviors (Ex. P-F).
B. Referral for Nonpublic School Placement
The parent seeks an Order directing the CSE to recommend a non-public school setting for the student (Ex. P-C at 11).
A school district is not obligated to consider removal from the public school to a nonpublic placement if it is able to provide the student with an appropriate educational program within the public education system. See T.G. v. New York City Dep't of Educ., 2013 WL 5178300, at *19 (S.D.N.Y. Sept. 16, 2013); A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *7-*8 (S.D.N.Y. Mar. 19, 2013); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 148 (S.D.N.Y. 2006) ("IDEA views private school as a last resort"); see also R.H. v. Plano Indep. Sch. Dist., 607 F.3d 1003, 1014-15 (5th Cir. 2010) (noting that under the IDEA, "removal to a private school placement [is] the exception, not the default . . . [t]he statute was designed primarily to bring disabled students into the public educational system and ensure them a free appropriate public education"); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 363 (S.D.N.Y. 2009); Patskin, 583 F. Supp. 2d at 430-31; see also 8 NYCRR § 200.6(j)(1)(iii) (State funding for private schools is only available if the CSE determines that the student cannot be appropriately educated in a public facility). "'[I]f the district can supply the needed services, then the public school is the preferred venue for educating the child'" T.G., 2013 WL 5178300 at *19, quoting W.S., 454 F. Supp. 2d at 138.
An order directing a school district to place the student in a NPS must also consider the IDEA's requirement that a student's recommended program be provided in the LRE. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); Newington, 546 F.3d at 111; Gagliardo, 489 F.3d at 105; Walczak, 142 F.3d at 132; Patskin, 583 F. Supp. 2d at 428. The Second Circuit applies a two-pronged test for determining whether an IEP places a student in the LRE, considering: (1) whether education in the general classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given student, and, if not, (2) whether the school has mainstreamed the student to the maximum extent appropriate. See Newington, 546 F.3d at 119-20; see also J.S v. N. Colonie, 586 F. Supp. 2d 74, 82
-- (N.D.N.Y. 2008); Patskin, 583 F. Supp. 2d at 430.
Consistent with the October 2017 recommendation of I find that the student requires placement in an NPS in order to learn (R. 106; Ex. P-J at 15). A
-- review of the hearing record reflects that the student was unable to be educated satisfactorily in a general education classroom at during the 2016/17 and 2017/18 school years with supplemental aids and services of ICT services and SETSS.
The CSE has mainstreamed the student to the maximum extent appropriate, but “given his learning weaknesses and his considerable weaknesses in executive function and impulse control, the student requires placement in a small, intensive, full-day multisensory learning environment in a small, specialized school that will provide him with the structured supports that he requires in order to perform within the scope of his
- cognitive abilities” (Ex. P-J at 15).
- Principal of the School, credibly testified that the student would benefit from daily academic instruction at her school. stated that the is small (approximately fifteen students) and provides instruction to its students in a 2:1 staff-to-student ratio. The student would be placed with other verbal students who function academically in a second-to-fifth grade range, and display sensory processing and behavioral issues including impulsivity. The School also offers its students speech, occupational, art and music therapies and counseling, when needed (R. 67-75).
-
The DOE will therefore be directed to fund the student’s private placement at the for the 2018/19 school year and to provide the student with specialized transportation to and from that placement.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hourfor-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at
526.
Having previously determined that the DOE failed to offer the student a FAPE for the 2016/17 and 207/18 school years, I find that the student is entitled to compensatory
--- additional services to remedy the denial of FAPE. Using the credible testimony offered by ., Director of and the recommendations of in her October 2017 independent speech/language evaluation, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.
1. One-on-One Tutoring
The DOE shall be directed to authorize the student’s receipt of 600 hours of oneto-one tutoring to be provided by a licensed special education teacher of the parent’s selection at the provider’s prevailing market rate.
-- testified that in February 2018 she conducted assessments of the student’s reading, spelling, mathematics and written expression skills using the Wide Range Achievement Test (“WRAT”), the Test of Written Language (“TOWL”) and the Qualitative Reading Inventory. On these assessments, the student tested at a low fourth grade level for mathematics, he tested at a mid-second grade level for spelling, and a mid-third grade level for decoding. He also
-- tested at a mid-third grade level for written language and a second grade level for reading comprehension. Based on her evaluation of the student, recommended that he receive specific, multi-sensory, one-on-one instruction in reading and spelling to improve his reading comprehension and written language skills (R. 47-58; Ex. P-R). The award of 600 hours of compensatory one-to-one tutoring is derived from a recommendation for eight (8) hours per week of instruction over a two (2) year period (R. 55).
2. Speech/Language Therapy
The DOE shall be directed to fund speech and language therapy services to be provided by a licensed speech and language therapist selected by the parent, at prevailing market rate to be calculated at 4x60 (1:1) for the days that school was in session beginning September 8, 2016 through June 30, 2018, less the amount of speech services actually provided by the DOE to the student during that time period.
In her October 18, 2017 independent evaluation, determined that the -- student exhibited notable delays in several areas of speech and language, as well as literacy. stated that those delays will have negative secondary effects on the student’s ability to participate in his grade-appropriate curriculum. recommended that the student receive individual speech and language therapy, four (4) times per week for sixty (60) minutes per session, to develop his speech and language and literacy skills (Ex. P-K at 9).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education for the 2016/17 and 2017/18 school years is SUSTAINED;
2. The DOE shall promptly fund all independent educational evaluations listed in the September 19, 2017 Interim Order if it has not already done so;
3. The DOE shall fund an Independent Assistive Technology Evaluation at the prevailing market rate;
-
4. The DOE is directed to fund the cost of the Student’s 2018/19 school year placement at the School by issuing a payment directly to the school within thirty
(30) days of the date of this Order;
-
5. The DOE shall provide the student with special education transportation to and from the School;
-
6. The DOE is directed to implement the provision of the following related services at the School during the 2018/19 school year:
a. 4x60 (1:1) SLT;
b. 2x30 counseling;
c. 1x30 (2:1) OT;
d. parent counseling and training, four (4) times per year, ninety (90)
minutes per session; and
e. special transportation.
7. The DOE shall fund 600 hours of compensatory one-to-one tutoring to be provided by a licensed special education teacher selected by the parent, at the prevailing market rate; and
8. The DOE shall to fund speech/language therapy services to be provided by a licensed speech/language therapist selected by the parent, at prevailing market rate to be calculated at 4x60 (1:1) for the days that school was in session beginning September 8, 2016 through June 30, 2018, less the amount of speech services actually provided by the DOE to the student during that time period Dated: August 8, 2018
/s/ Jeffrey J. Schiro mv
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer JS:mv
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
A. Due Process Complaint Notice/Impartial Hearing Request, 7/10/17, 10 pgs.
B. 1st Amended Due Process Complaint Notice/Impartial Hearing Request, 7/26/17,
10 pgs.
C. 2nd Amended Due Process Complaint Notice/Impartial Hearing Request, 2/6/18,
13 pgs.
D. Interim Order ( ) IHO , 9/19/17, 2 pgs.
E. Individualized Education Program (IEP), 1/26/18, 25 pgs.
F. Individualized Education Program (IEP), 2/7/17, 16 pgs.
G. Individualized Education Program (IEP), 6/1/16, 10 pgs.
H. Individualized Education Program (IEP), 6/16/15, 13 pgs.
I. Individualized Education Program (IEP), 5/9/14, 12 pgs.
J. Neuropsychological Evaluation, 10/2017, 25 pgs.
K. Speech/Language Evaluation, 10/18/17, 11 pgs.
L. Psychoeducational Evaluation, 1/2017, 9 pgs.
M. Classroom Observation, 1/5/17, 2 pgs.
N. Psychosocial Evaluation, 10/7/16, 5 pgs.
O. Team Conference Summary, 10/17/16, 4 pgs.
P. Neurodevelopmental Evaluation, 6/1/16, 7 pgs.
-
Q. Speech/Language Evaluation, 6/7/16, 13 pgs.
R. Letter, 2/7/18, 1 pg.
S. GARS-3 Summary/Response Form, undated, 4 pgs.
-
T. USDOE OSERS Policy Guidance on FAPE, 11/16/15, 7 pgs.
U. School Web Page & Flyers, 2017, 21 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 9/25/17, 1 pg.
II. Confirmation of Extension, 10/25/17, 1 pg.
III. Confirmation of Extension, 11/14/17, 1 pg.
IV. Confirmation of Extension, 12/22/17, 1 pg.
V. Confirmation of Extension, 1/22/18, 1 pg.
VI. Confirmation of Extension, 4/23/18, 1 pg.
VII. Confirmation of Extension, 5/21/18, 1 pg.
VIII. Confirmation of Extension, 6/19/18, 1 pg.
IX. Confirmation of Extension, 7/22/18, 1 pg.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors
[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).
[4] State regulations define ICT services as "the provision of specially designed instruction and academic instruction provided to a group of students with disabilities and nondisabled students." 8 NYCRR § 200.6(g). The number of students with disabilities receiving ICT services within a class may not exceed 12. See 8 NYCRR § 200.6(g)(1). In addition, State regulations require that an ICT class must be staffed, at a minimum, with a special education teacher and a regular education teacher. See 8 NYCRR § 200.6(g)(2).
[5] Parent counseling and training means assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child’s individualized education program.
[6] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section
[8] NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v). The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). A. Denial of FAPE - 2016/17 & 2017/18 School Years
[7] Functional behavioral assessment means the process of determining why a student engages in behaviors that impede learning and how the student’s behavior relates to the environment. The functional behavioral assessment shall be developed consistent with the requirements in section 200.22(a) of this Part and shall include, but is not limited to, the identification of the contextual factors that contribute to the behavior (including cognitive and affective factors) and the formulation of a hypothesis regarding the general conditions under which a behavior usually occurs and probable consequences that serve to maintain it. 8 NYCRR § 200.1(r). Behavioral intervention plan means a plan that is based on the results of a functional behavioral assessment and, at a minimum, includes a description of the problem behavior, global and specific hypotheses as to why the problem behavior occurs and intervention strategies that include positive behavioral supports and services to address the behavior. 8 NYCRR § 200.1(mmm).