NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT & DECISION
Case Number: 168212
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: September 15, 2017
January 22, 2018
September 13, 2019
October 18, 2019
Actual Record Close Date: April 3, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 15, 2017
For the Student:
Attorney
For the Department of Education:
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 22, 2018
For the Student:
Attorney
parent
For the Department of Education:
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 13, 2019
For the Student:
Attorney
For the Department of Education:
Impartial Hearing Representative (via telephone)
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 18, 2019
For the Student:
Attorney
parent
Neuropsychologist (via telephone)
(via telephone)
For the Department of Education:
Impartial Hearing Representative
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 August 29, 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 2015/16, 2016/17, 2017/18 and 2018/19 school years (Exs. P-A, P-I, P-J, P-K, P-ZZ).'[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“JEP”), 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 8§ 200.5(h)-(1).
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 as “Ex.” student.” See 8 NYCRR § 200.5(1)(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(G)(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 § 200.5q)(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(4)(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).
Il. PROCEDURAL HISTORY
On August 29, 2017, the DOE appointed me to serve as the hearing officer in this matter following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)@). At a hearing held on September 15, 2017, the parent moved for an interim order on pendency (R. 8-10; Ex. PA at 13). The DOE opposed the parent’s motion (R. 10-11). In an Interim Order on Pendency dated October 5, 2017, the undersigned directed that the DOE provide the student with home instruction pending a search for a State-approved nonpublic school (“NPS’’) placement for the student (Ex. IHO-I at 8).[2] See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law
§ 4404(4); 8 NYCRR § 200.5(m). On January 24, 2018, September 28, 2018, and July 18, 2019, the parent filed an amended due process complaint (Exs. P-I, P-J, P-K). See 8 NYCRR § 200.5(1)(7). Hearings on the merits of the matter were held on: January 22, 2018; September 13, 2019; and October 18, 2019.7 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).
Hil. FACTUAL BACKGROUND
The student is now and has been diagnosed with an attention deficit hyperactivity disorder — combined presentation (“ADHD”), a specific learning disorder in reading, written expression and mathematics, a developmental coordination disorder, and an acute stress disorder (Ex. P-QQ). The student currently attends the at in , on an interim basis (R. 243-244, Exs. IHO-II, IHO-II). The student's eligibility for special education and related services as a student a disability is not in dispute in this hearing (Exs. P-A, P-I, P-J, P-K, P-D, P-E, P-F, P-R, P-S, SD-1, SD-2, SD-3, SD-11, SD16). See 8 NYCRR § 200.1(zz).[4]
C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
2015/16 SY
The student attending at in (R. 244-245). The student began attending the at in September 2015 (R. 215). The parent made an initial referral for evaluation to the CSE at the beginning of the student’s school year (R. 246).
On December 22, 2015, the CSE convened to review student’s eligibility for special education programs and services. The CSE educationally classified the student as having a learning disability.[5] The CSE recommended that the student’s general education instruction be supplemented with integrated co-teacher (“ICT”) services and special education teacher support services (“SETSS”) in a community school.[6] 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; group (2:1) occupational therapy, two (2) times per week for thirty (30) minutes per session; and a full-time, one-to-one crisis management paraprofessional daily (Ex. SD-3 at 11).
Law, who has not attained the age of 21 prior to September 1“ and who is entitled to attend public schools pursuant to section 3202 of the Education Law and who, because of mental, physical or emotional reasons, has been identified as having a disability and who requires special services and programs approved by the department. 8 NYCRR§ 200.1(zz).
8 NYCRR § 200.1(zz)(6).
In the spring of 2016, the student participated in a private neuropsychological evaluation with at . The student’s Full Scale IQ was determined to be 107, falling in the Average range. The student’s performance on measures of attention and executive functioning were variable. The student’s reading abilities were inconsistently developed, with strengths in verbal comprehension and weaknesses in reading fluency. The student also demonstrated significant emotional distress within the classroom, which attributed to ADHD rather than oppositional or defiant behaviors (Ex. P-NN at 5-7, 11-14).
The student completed the school year with several “1s” on his report card, in areas such as reading, writing, and academic and personal behaviors (Ex. P-BB).
2016/17 SY
During his second grade, the student’s class assignment was reportedly switched approximately five (5) times. The parent testified that one of the student’s teachers went out on leave (R. 249) and that another (substitute) teacher was unaware that the student had an IEP (R.
253-254). The student had a physical altercation with another student (which prompted a class change) and was accused of hitting a teacher in the head with an apple. The parent also reported that one of the student’s teachers was physically aggressive towards him, which necessitated another class reassignment (R. 254-257).
On January 3, 2017, the CSE reconvened to develop an IEP for the student through January 2018. The CSE changed the student’s educational classification to other health impairment (“OHI”) (Ex. SD-2 at 1).[7] The CSE also changed its recommended program for the ’Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environment stimuli, that results in limited alertness with respect to the educational environment, that is student to a 12:1+1 special class in a community school on a ten (10) month basis. The CSE also recommended that the student receive related services of: group (2:1) occupational therapy, two (2) times per week for thirty (30) minutes per session; individual counseling with a school social work, once a week for thirty (30) minutes per session; and a full-time, one-to-one crisis management paraprofessional (Ex. SD-2 at 7-8).
On May 5, 2017, the CSE reconvened to develop an IEP for the student through May 2018. The CSE changed the student’s educational classification (again); this time to emotional disturbance (“ED”) (Ex. SD-1 at 1).2 The CSE also changed its recommended program for the student (again); this time to a 12:1+1 special class in a specialized (District 75) school on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual counseling, two (2) times per week for thirty (30) minutes per session; group (2:1) occupational therapy, two (2) times per week for thirty (30)
minutes per session; and a full-time, one-to-one crisis management paraprofessional (Ex. SD-1 at 8-9, 11).
2017/18 SY
The parent declined to send the student back to for because she felt he was traumatized by his experience there (R. 260, 263). Per the October 5, 2017 Pendency due to chronic or acute health problems, including but not limited to a heart condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, diabetes, attention deficit disorder or attention deficit hyperactivity disorder or Tourette syndrome, which adversely affects a student’s educational performance.[8] NYCRR § 200.1(10). Order, the student began receiving two (2) hours of home instruction per day until March or April 2018, when he was enrolled at on an interim basis (R. 263-265; Exs. IHO-I, IHOII). The student also received speech and occupational therapy services while on home instruction (R. 265).
On September 25, 2017, the CSE reconvened to develop an JEP for the student through September 2018. The CSE changed the student’s educational classification back to OHI. The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a State-approved NPS on a twelve (12) month basis. The CSE also recommended that the student receive related services of: specialized transportation; individual counseling, two (2) times per week for thirty (30) minutes per session; group (2:1) occupational therapy, two (2) times per week for thirty (30) minutes per session; group (3:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session; and a full-time, one-to-one crisis management paraprofessional (Ex. P-F at 12-13, 15).
The DOE, however, was unable to secure a State-approved NPS for the student, so in a February 2018 Order, the undersigned directed that the student be placed in a DOE-operated community school on an interim basis (Ex. IHO-II). The student began attending shortly thereafter (R. 265). The undersigned also directed the DOE to provide the student with three (3) hours per week of one-to-one after-school tutoring (Ex. IHO-II). The student received
121 hours of after-school tutoring through June 2019 (R. 144).
As directed by the undersigned in the February 2018 Order, the student participated in an independent neuropsychological evaluation at public expense (Ex. IHO-II). See 8 NYCRR § 200.5q)(3)(viil).. The student achieved a Full Scale IQ score of 102 (Average). In contrast, the student’s academic fluency, math and writing skills measured at a Very Low level, and his reading skills were measured to be at the Low Average level. The neuropsychologist recommended that the student be placed in a 6:1 or 8:1 special class in a State-approved NPS (Ex. P-QQ at 26-27).
On April 23, 2018, the CSE reconvened to develop an IEP for the student through April 2019. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class in a State-approved NPS on a ten (10) month basis. The CSE also recommended that the student receive related services of: specialized transportation; group (3:1) counseling, one time per week for thirty (30) minutes per session; individual counseling, one time per week for thirty (30) minutes per session; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; and individual speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-R at 10-11, 13). The DOE, however, remained unable to secure a State-approved NPS for the student, so he remained at on an interim basis through the end of the 2017/18 school year (R. 267-268).
2018/19 SY
The student began the 2018/19 school year (his ) at , as the DOE was unable to secure an NPS placement for the student (R. 267-268).
On October 12, 2018, the CSE reconvened to develop an IEP for the student through October 2019. The CSE changed the student’s educational classification back to learning disability (which had been his original educational classification). The CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class in a State-approved NPS setting on a twelve (12) month basis. The CSE also recommended related services of: specialized transportation; group (3:1) counseling, one time per week for thirty (30) minutes per session; individual counseling, one time per week for thirty (30) minutes per session; individual occupational therapy, two (2) times per week for thirty (30) minutes per session; and individual speech/language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-S at 9-10, 12). The DOE, however, was unable to secure an NPS placement for the student and he remained at through the end of the 2018/19 school year (Ex. P-ZZ at 8).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE does not contest the allegations in this case and agrees that the student is entitled to a reasonable amount of compensatory education. The DOE asserts that 600 hours of tutoring (less those hours provided to the student pursuant to the undersigned’s interim orders) would constitute a reasonable amount of compensatory education for the student. The DOE objects to any award of after-school SETSS as unnecessary (R. 124-126; Ex. SD-20).
B. The Parent
The DOE denied the student a FAPE for the 2015/16, 2016/17, 2017/18 and 2018/19 school years. The DOE should be directed to provide the student with compensatory additional services to remedy the denial of FAPE over multiple school years, including: one-to-one SETSS in school; one-to-one compensatory tutoring after-school; speech/language therapy; occupational therapy; counseling; and transportation (R.126-131; Ex. P-ZZ).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
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).[9]
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).
"TA |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; 4.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)(i); 34 C.F.R.
§ 300.513(a)(2); 8 NYCRR § 200.5G)(4)@i); 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)(G). 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 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)Q), 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 JEP 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)(); 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)(), (2)()(A); 8 NYCRR § 200.4(d)(2)(i11), 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).
B. Recommended Public Programs
There is no dispute that the DOE denied the student a FAPE over multiple school years (R. 124). The IEPs which were entered into the hearing record reflect frequent reclassifications of the student (e.g., LD, OHI, ED) and program recommendations which ran the gamut of the authorized continuum of special education programs (e.g., ICT, 12:1+1 in a community school, 12:1+1 in a specialized (D75) school, 12:1+1 in an NPS, and an 8:1+1 in an NPS) (Exs. P-D, PE, P-F, P-R, P-S, SD-1, SD-2, SD-3, SD-11, SD-16). While the CSE’s recommendations appear haphazard, rather than data-driven, some of that apparent indecision may be reflective an intent to find a program which would have accepted the student. The student would have been better served, however, if the CSE developed a program to meet the student’s unique educational needs, rather than try to shape his IEP to fit then-available programs. According to the final IEP entered into the hearing record, by the fall of his , the student was reading on a second grade level and his math functioning measured on a level (Ex. P-S at 12).
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., MC. v. Central Reg’ 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 hour-for-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. Jd. at 526.
Having concluded that the student was denied a FAPE over multiple school years, I find that his is now entitled to compensatory additional services to remedy that denial of FAPE and shall apply a qualitative approach in fashioning a remedy for the student.
1. One-to-One SETSS In-School evaluated the student in March 2018 and July 2019 (Ex. P-QQ, PRR). As of March 2018, the student exhibited deficits in all academic areas with all skills measuring in the very low to low average range (R. 203). testified at the hearing, however, that given appropriate intervention, the student had the capacity to perform on grade level academically (R. 213). recommended that the student receive ten (10) hours per week of one-to-one SETSS in-school, given his attention and orthographic processing difficulties (R. 207, 209-210). The DOE does not oppose this recommendation (Ex. SD-20 at 3).
The DOE will be directed to provide the student with ten (10) hours per week of one-to-one SETSS in school, until such time as a State-approved NPS is secured for the student. As the service will be provided in-school, the DOE shall designate the student’s SETSS provider and ensure that the provider has the necessary education, background, training and certification to perform that function.
2. One-to-One Tutoring After-School testified under oath at the hearing that she is founder of ; which specializes in providing one-to-one tutorial support to special education students using a combination of research-based multisensory methodology tailored to each individual student (R.
137-138). works with students with all types of special education needs, and learning disabilities, including student who are nonverbal, students who have ADHD, student with speech and language challenges and student on the autism spectrum (R. 139).
assessed the student’s in August 2017 (R. 140; Ex. P-YY). As of that date (while the student was in ), his skills in reading comprehension, decoding, spelling and math were also measured at the first grade level; his writing skills measured at the kindergarten level (R. 141; Ex. P-YY). provided the student with 121 hours of tutoring (approximately three hours per week) from two special education certified tutors from August 2018 through June 2019 (R. 143-144). stated that the student responded well to the multi-sensory instruction he received, which was reflected in *s 2019 neuropsychological update (R. 146, 162; Ex. P-RR). recommended that, going forward, the student be awarded 1,200 hours of compensatory tutoring hours, calculated by multiplying ten (10) hours per week of instruction over a three (3) year period of time (R. 167-168).
Alternatively, while the DOE has suggested that the student be awarded 600 hours of tutoring (Ex. SD-20 at 2), it has not explained how it arrived at that award calculation. The DOE also insists that the 121 hours of tutoring provided the student pursuant to the interim orders issued in this matter (Exs. [HO-I, IHO-II, IHO-III]) be deducted from any award of compensatory tutoring hours.
The DOE will be directed to authorize the student’s receipt of 1,200 hours of compensatory one-to-one tutoring, by a provider of the parent’s choosing at an enhanced rate, less the 121 tutoring hours already provided to the student pursuant to the interim orders issued in this matter.
3. Related Services (SLT, OT, Counseling)
Based on the evidence contained in the hearing record, I find that the student entitled to, but failed to receive, appropriate and necessary related services for the seventeen (17) week period from September 9, 2015 through January 11, 2016 (the implementation date of the student’s first IEP (Ex. SD-3 at 1).
The December 2015 IEP recommended that the student receive counseling, one time per week for thirty (30) minutes per session (Ex. SD-3 at 11). The DOE will be directed to authorize the student’s receipt of seventeen (17) half-hour counseling sessions (1:1) at public expense, from a provider of the parent’s choosing at an enhanced rate.
The December 2015 IEP recommended that the student receive occupational therapy, two (2) times per week for thirty (30) minutes per session (Ex. SD-3 at 11). The DOE will be directed to authorize the student’s receipt of seventeen (17) hours of 1:1 occupational therapy at public expense, from a provider of the parent’s choosing at an enhanced rate.
On September 25, 2017, the CSE recommended, for the first time, that the student receive speech and language therapy, two (2) times per week for thirty (30) minutes per session (Ex. P-F at 12). Based on the analysis contained in ’s neuropsychological evaluations, I find that the student should have received speech and language therapy during the 2015/16 and 2016/27 school years (R. 265; Exs. PQQ, P-RR). The DOE will be directed to authorize the student’s receipt of seventy-two (72) hours of 1:1 speech and language therapy at public expense, from a provider of the parent’s choosing at an enhanced rate.!°
4. Transportation
As the student would be unable to access the additional services without transportation, the DOE will be ordered to provide the student and the parent with MetroCards so that the student can safely attend the after-school tutoring and related services. See generally, R.B. v. New York City Dep’t of Educ., 713 F. Supp. 2d 235, 242 (S.D.N.Y. 2010) (discussing how the DOE distributes 700,000 MetroCards twice a year to transport students).
D. Independent Educational Evaluations (“IEEs’’)
The parent asserts that the student is entitled to several independent evaluations at public expense (Exs. P-A, P-J, P-K, P-ZZ).
The IDEA provides parents with a number of procedural safeguards. Among them is the "right ... to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency '0This award has been calculated by multiplying one hour per week of service by a thirty-six (36) week school year. That total was then multiplied by two school years. responsible for the education of the child in question." See 34 C.F.R. §§ 300.502(a)(1), (3)().
Parents who express a disagreement with an evaluation conducted by the school district also have the right to seek an IEE conducted at public expense in some circumstances. See 34 C.F.R.
§ 300.502(b); 8 NYCRR § 200.5(g)(1); K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012). "Ifthe parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child."
34 C.F.R. § 300.502(c).
If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. §§ 300.502(b)(2)(i)-(11); 8 NYCRR § 200.5(g)(1)(iv). Ifa school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although the district will not be required to provide it at public expense. See 34 C.F.R. § 300.502(b)(3); 8 NYCRR § 200.5(g)(1)(v).
Additionally, both federal and State regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." See 34 C.F.R. § 300.502(b)(5); 8 NYCRR § 200.5(g)(1). An IEE must use the same criteria as the public agency's criteria. See Seth B. v. Orleans Par. Sch. Bd., 810 F.3d 961, 973-79 (Sth Cir. 2016). Informal guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area, see Letter to Baus, 65 IDELR 81 (OSEP 2015), however recent caselaw clarifies that parents may not demand a comprehensive IEE at public expense while at the same time refusing to consent to the school district's offer to conduct the same assessments, see D.S. v. Trumbull Bd. of Educ., 357 F. Supp. 3d 166, 178 (D. Conn. 2019), citing N.D.S. v. Acad. For Sci. & Agric. Charter Sch., 2018 WL 6201725, at *5—*7 (D. Minn.
2018).
The school district bears the burden of showing that its evaluation of the student was appropriate in order to prevail in its challenge to the parent's requests for IEEs at public expense.
See, e.g., Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No.
19-101 at 10 (SRO Dec. 6, 2019).
In a letter dated August 14, 2017, the parent expressed her disagreement with the CSE’s evaluations of the student and requested several IEEs at public expense (Ex. P-H). The DOE failed to ensure that the IEEs were provides at public expense or initiate a due process hearing to defend its evaluations of the student. Cf 34 C.F.R. §§ 300.502(b)(2)(4)-(i1); 8 NYCRR § 200.5(g)(1)(iv). At the hearing, the DOE did not offer testimony of any witnesses to demonstrate the appropriateness of its evaluations of the student over the last four school years.
Consequently, the DOE will be directed to authorize the student’s receipt of the following IEEs at public expense: speech/language therapy, occupational therapy, physical therapy, assistive technology, psychiatric, and an FBA/BIP.'' The CSE will also be directed to reconvene within thirty (30) days of the completion of all ordered evaluations to review the results of said evaluations.
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 (FAPE) for the 2015/16, 2016/17, 2017/18 and 2018/19 school years is SUSTAINED;
2. Within thirty (30) days of the date of this Order, the DOE shall provide the student with ten (10) hours per week of one-to-one SETSS in school, until such time as a State-approved NPS is secured for the student. As the service will be provided in-school, the DOE shall designate the student’s SETSS provider and ensure that the provider has the necessary education, background, training and certification to perform that function;
3. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of 1,200 hours of compensatory one-to-one tutoring, by a provider of the parent’s choosing at an enhanced rate, less the 121 tutoring hours already provided to the student pursuant to the interim orders issued in this matter;
4. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of seventeen (17) half-hour counseling sessions (1:1) at public expense, from a provider of the parent’s choosing at an enhanced rate;
5. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of seventeen (17) hours of 1:1 occupational therapy at public expense, from a provider of the parent’s choosing at an enhanced rate; report was entered as an exhibit into the hearing record (Ex. P-QQ).
6. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of seventy-two (72) hours of 1:1 speech and language therapy at public expense, from a provider of the parent’s choosing at an enhanced rate;
7. The DOE shall provide the student and the parent with MetroCards so that the student can safely attend the after-school tutoring and related services; and
8. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following IEEs at public expense: speech/language therapy, occupational therapy, physical therapy, assistive technology, psychiatric, and an FBA/BIP.
Dated: April 16, 2020
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
Within 40 days of the date of this decision, the parent and/or the public school district has a right to appeal the decision to the State Review Officer ("SRO") of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If the either party plans to appeal the decision, a notice of intention to seek review Shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
Due Process Complaint Notice/Impartial Hearing Request, 8/29/17, 17 pgs.
CATYMANPOVEDMOZXEAZSEMVAK
[Reserved] [Reserved]
Individualized Education Program (IEP), 5/5/17, 15 pgs.
Individualized Education Program (IEP), 8/7/17, 11 pgs.
Individualized Education Program (IEP), 9/25/17, 17 pgs. [Reserved]
Letter to CSE from parent (requesting IEEs), 8/14/17, 2 pgs.
Amended Due Process Complaint Notice, 1/24/18, 22 pgs.
Second Amended Due Process Complaint Notice, 9/28/18, 25 pgs.
Third Amended Due Process Complaint Notice, 7/18/19, 27 pgs. [Reserved]
Prior Written Notice (Notice of Recommendation), 12/22/15, 4 pgs.
Prior Written Notice (Notice of Recommendation), 3/3/17, 4 pgs.
Prior Written Notice (Notice of Recommendation), 10/16/18, 2 pgs. [Reserved] [Reserved]
Individualized Education Program (IEP), 4/23/18, 16 pgs.
Individualized Education Program (IEP), 10/12/18, 13 pgs.
Functional Behavioral Assessment (FBA), 12/22/15, 5 pgs.
Functional Behavioral Assessment (FBA), 11/28/16, 5 pgs. [Reserved]
Functional Behavioral Assessment (FBA) Parent Interview, 1/3/17, 2 pgs.
Behavior Intervention Plan (BIP), 12/22/15, 5 pgs.
Behavior Intervention Plan (BIP), 1/27/17, 7 pgs.
Behavior Intervention Plan (BIP), 10/9/18, 6 pgs.
Report Card, 2014/15, 2 pgs.
Report Card, 2015/16, 3 pgs.
Report Card, 2016/17, 2 pgs.
Final Grades, 2017, 6 pgs.
Progress Report — , spring 2015, 1 pg.
Classroom Observation, 11/11/16, 4 pgs.
Mid-Year Progress Report — , 6/2716, | pg.
Committee on Special Education (CSE) Meeting Notice, 12/5/16, 2 pgs.
Letter to Principal from parent, 5/5/17, 2 pgs.
Student Information, 5/9/17, 2 pgs.
New School Letter, 3/20/18, 3 pgs. ces - Teacher Questionnaire, 2/14/18, 3 pgs.
Teacher Report, 6/29/19, 3 pgs.
- Neuropsychological Evaluation, spring 2016, 15 pgs. [Reserved] PP. [Reserved] QQ. ces — Neuropsychological Evaluation, 3/29/18, 39 pgs.
RR. ces - Neuropsychological Update, 7/19/19, 11 pgs. SS. | Occupational Therapy Evaluation, 11/18/15, 12 pgs. TT. | Psychoeducational Evaluation Report, 11/24/15, 6 pgs.
UU. Physical Therapy Evaluation, 12/9/15, 5 pgs.
VV. Speech/Language Evaluation, 6/14/17, 6 pgs.
WW. Assessment Planning, various dates, 3 pgs.
XX. Assistive Technology Trial Period Plan, 2/28/17, 1 pg.
YY. Letter, 8/17/17, 1 pg.
ZZ. Parent’s Closing Statement & Memorandum of Law, 12/16/19, 26 pgs.
DEPARTMENT OF EDUCATION
Individualized Education Program (IEP), 5/5/17, 13 pgs.
PANAMBWNS
Individualized Education Program (IEP), 1/3/17, 13 pgs.
Individualized Education Program (IEP), 12/22/15, 16 pgs.
Deferral to Central Based Support Team (CBST), 9/25/17, 2 pgs.
— Neuropsychological Evaluation, 6/2017 — 7/2017, 30 pgs.
Speech/Language Evaluation, 6/14/17, 5 pgs.
Consent for Evaluations, 5/15/17, 1 pg.
Assistive Technology Evaluation Referral, 1/17/17, 6 pgs.
9. [Reserved|
10. Functional Behavioral Assessment (FBA), 1/23/17, 13 pgs.
11. Individualized Education Program (IEP), 12/9/16, 12 pgs.
12. Behavior Intervention Plan (BIP), 11/28/16, 6 pgs.
13. [Reserved|
14. Incident Report - , 12/8/16, 3 pgs.
15. Teacher Report, 12/11/15, 4 pgs.
16. Individualized Education Program (IEP), 1/11/16, 15 pgs.
17. Prior Written Notice (Notice of Recommendation), 12/13/16, 4 pgs.
18. School Location Letter, 12/13/16, 2 pgs.
19. Consent for Initial Provision of Services, 12/22/15, 2 pgs.
20. DOE’s Closing Brief, 12/16/19, 4 pgs.
IMPARTIAL HEARING OFFICER
I. Interim Order on Pendency, 10/5/17, 9 pgs.
I. Order
for Emergency Interim Relief, 2/12/18, 1 pg.
II. Amended Order for Emergency Interim Relief, 10/29/19, 1 pg.
it is determined that they have an emotional disturbance. 8 NYCRR § 200.1(zz)(4).
Footnotes
[1] ‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[2] ?When the NPS search proved unsuccessful, subsequent Orders were issued, on February 12, 2018 and October 29, 2019, respectively, which directed the DOE to place the student in a community school and provide the student with after-school tutoring pending the completion of the due process hearing (Exs. IHO-II, IHO-III).
[3] 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 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. 36-37, 110-111, 280-281). See 34
[4] Student with a disability means a student with a disability as defined in section 4401(1) of the Education
[5] Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write spell or to do mathematical calculations, as determined in accordance with section 200.4()) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minima brain dysfunction, dyslexia, and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.
[6] State regulation defines 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). In addition, State regulation requires that personnel assigned to each class providing such services "shall minimally include a special education teacher and a general education teacher," and "the number of students with disabilities in such classes shall not exceed 12 students” 8 NYCRR §§ 200.6(g)(1)-(2). SETSS, however, is not defined in the State’s continuum of special education services. Cf 8 NYCRR § 200.6; see also Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 17-103 at 18-20 (SRO Mar. 15, 2018); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 16-056 at 12-18 (SRO Nov. 2, 2016).
[7] Other health impairment means having limited strength, vitality or alertness, including a heightened alertness to environment stimuli, that results in limited alertness with respect to the educational environment, that is
[8] Emotional disturbance means a condition exhibiting one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a student’s educational performance: (1) an inability to learn that cannot be explained by intellectual, sensory, or health factors; (11) an inability to build or maintain satisfactory interpersonal relationships with peers and teachers; (111) in appropriate types of behavior or feelings under normal circumstances; (iv) a generally pervasive mood of unhappiness or depression; or (v) a tendency to develop physical symptoms or fears associated with personal or school problems. The term includes schizophrenia. The term does not apply to students who are socially maladjusted, unless
[9] 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 1414(d) ofthis title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.
[10] This award has been calculated by multiplying one hour per week of service by a thirty-six (36) week school year. That total was then multiplied by two school years.
[11] "1h the February 12, 2018 Interim Order, the DOE was directed to fund an independent neuropsychological evaluation (Ex. IHO-II). That evaluation was conducted by and his completed