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FINDINGS OF FACT & DECISION
Case Number: 168813
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: September 9, 2019
Actual Record Close Date: March 16, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 9, 2019
ESQ., Attorney — Student
Parents
Aunt — Student
Director, (via telephone) — Student
Regional Clinical Director, (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 September 7, 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”) for the 2017/18, 2018/19 and 2019/20 school years (Exs. P-A, P-W).[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 the undersigned to serve as the hearing officer in this matter on September 14, 2017. See 8 NYCRR § 200.5(j)(3)(i). A prehearing conference was held with the parties on July 9, 2019 to clarify the hearing issues and set dates for the hearing. See 8 NYCRR § 200.5(j)(3)(xi). The parent filed an amended due process complaint on July 15, 2019. See 8 NYCRR § 200.5(i)(7). A hearing on the merits of the matter was thereafter held on September 9, 2019.[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 15, 2019 amended due process complaint, the student was years old and has been diagnosed with a (high functioning) Autistic Spectrum Disorder and a Language Based Developmental Disorder of Scholastic Skills (Exs. P-B at 4, P-J at 1, P-W at 2). During the current academic year (2019/20), the student attends
(Ex. P-W at 1). The student's eligibility for special education and related services as a student autism is not in dispute in this hearing (Exs. P-G at 1, P-P at 1, P-U at 1, P-W at 1, SD-
2 at 1, SD-3 at 1, SD-6 at 1). See 34 C.F.R. § 300.8(c)(1);[8] NYCRR § 200.1(zz)(1).[3]
The student began receiving early intervention (“EI”) services when he was two (2) years old, including occupational therapy, physical therapy, speech and language therapy, and a therapeutic preschool (Exs. P-B at 1, P-W at 1).
The DOE’s Committee on Preschool Special Education (the “CPSE”) first classified the student as a preschool student with a disability on June 26, 2012. The CPSE recommended that the student receive integrated co-teaching (“ICT”) services and related services of: occupational therapy, physical therapy, and speech and language therapy (Ex. P-B at 1, P-W at 1).[4]
On April 8, 2013, the CSE first convened to develop an IEP for the student for the 2013/14 school year. The CSE found the student functioning at a pre-kindergarten level in reading and math and educationally classified him as having a learning disability (“LD”). The
CSE recommended that the student receive ICT services in math, ELA, social studies and science and related services of occupational therapy, physical therapy and speech and language therapy (Ex. P-W at 2).
The CSE conducted a reevaluation of the student on November 3, 2014. During the evaluation, the school psychologist administered the Woodcock-Johnson III – Test of Achievement (“WJ-III”) and the Wechsler Preschool and Primary Scales of Intelligence – Fourth Edition (“WPPSI-IV”). The student earned a full scale IQ of 87 on the WPPSI-IV, placing in the low average range. On the WJ-III, the student earned the following grade equivalent scores:
letter-word identification (GE - K.3); calculation (GE - 1.1); spelling (GE - K.4), passage comprehension (GE - < K); applied problems (GE – 1.1); word attack (GE – 1.3), picture vocabulary (GE – K.6); and oral comprehension (GE – K.5) (Exs. P-E at 3, P-W at 2).
On December 21, 2014, the CSE reconvened, determined that the student was functioning at a kindergarten level in reading and at a first grade level in math, and reclassified the student as having an other health impairment (“OHI”). The CSE continued to recommend that the student receive ICT services in math and ELA with related services of: occupational therapy, physical therapy and speech and language therapy. The CSE also mandated that the student receive a full-time one-to-one health paraprofessional (Ex. P-W at 2).
The CSE reconvened on December 8, 2015 and found the student to be functioning at a first grade level in reading and math. The CSE continued to recommend that the student receive ICT services in math and ELA with related services of: occupational therapy, physical therapy, speech and language therapy, and a health paraprofessional (Ex. P-W at 2).
On May 24, 2016, the CSE reconvened to develop an IEP for the student through May 23, 2017. The CSE recommended that the student receive ICT services for ELA and math in a community school on a ten (10) month basis, along with a full-time, one-to-one health paraprofessional. The CSE also recommended that the student receive related services of:
specialized transportation; group (3:1) occupational therapy, two (2) times per week for thirty
(30) minutes per session; group (3:1) physical therapy, one time per week for thirty (30) minutes per session; and group (2:1) speech and language therapy, two (2) times per week for thirty (30)
minutes per session (Exs. P-A at 13-14, 17-18, P-W at 2).
The parent obtained a private neurology evaluation of the student on March 20, 2017.
The neurologist strongly recommended that the student’s special education program be extended to a twelve month program in a small, structured self-contained class for children with high functioning autism. The neurologist also recommended a highly individualized, multisensory, structured, sequential, cumulative, repetitive, linguistic, phonic approach to reading, such as the Orton-Gillingham or Wilson methods (Exs. P-B at 5, P-W at 2-3).
On May 5, 2017, the CSE conducted a psychoeducational evaluation of the student. The
Wechsler Intelligence Scale for Children – Fifth Edition (“WISC-V”) was used to measure the student’s general thinking and reasoning skills. The student’s FSIQ score (98), a measure of overall intellectual ability, was in the Average range. The student’s processing speed was an area of personal weakness when compared to his verbal reasoning, visual spatial and working memory skills. The student was administered the Woodcock-Johnson Tests of Achievement – Fourth Edition (“WJ-IV”) to assess reading, writing and math skills. The student’s overall performance in reading was in the Very Low range. His overall performance in math and written expression were both in the Low range. The school psychologist who conducted the May 2017 psychoeducational evaluation recommended that special education teacher support services (“SETSS”) be added to the student’s IEP (Exs. P-E at 7-8; P-W at 3).
On May 30, 2017, the CSE reconvened to develop an IEP for the student through May 2018. The CSE determined that the student continued to function on a first grade level in reading and math. The CSE changed the student’s educational classification to autism. The parent requested a specialized reading remediation program for the student and his placement in a New York State-approved nonpublic school. The CSE denied both requests. Instead, the CSE recommended that the student receive ICT services in math, ELA, social studies and science in a community school on a twelve (12) month basis. The CSE also recommended that the student received related services of: specialized transportation; group (3:1) occupational therapy, two (2)
times per week for thirty (30) minutes per session; group speech/language therapy, two (2) times per week for thirty (30) minutes per session; and a full-time, one-to-one health paraprofessional.
Physical therapy was discontinued (Exs. P-G at 7-11, P-W at 10. SD-2).
In an October 25, 2017 neurology follow-up, the student’s neurologist continued to recommend a specialized environment for children with high functioning autism and a highly individualized, multisensory, structured, sequential, cumulative, repetitive, linguistic, phonic approach to reading like the Orton-Gillingham or Wilson method (Exs. P-J, P-W at 4).
In a February 26, 2018 progress report, the student’s teacher documented that the student struggled with reading comprehension and continued to read at a beginning first grade level. The student’s teacher recommended his placement in a 12:1+1 special class or smaller setting because he functioned better in small groups than in her full class of thirty-four (34) students
(Exs. P-O, P-W at 4).
On March 1, 2018, the CSE reconvened to develop an IEP for the student through March 2019. The CSE continued to recommend that the student receive ICT services in math and ELA in a community school on a twelve (12) month basis. The CSE also recommended that the student receive SETSS in math and ELA and related services of: group (3:1) counseling, one time per week for thirty (30) minutes per session; group (3:1) occupational therapy, two (2) times per week for thirty (30) minutes per session; group speech/language therapy, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy, one time per week for thirty (30) minutes per session; group parent counseling and training, and a full-time, one-to-one health paraprofessional. Specialized transportation was discontinued. The parent again requested that the CSE defer the student’s case to the DOE’s Central Based Support Team (“CBST”) for placement in a New York State-approved nonpublic school. The CSE again denied the parent’s request, but recommended that he apply for enrollment in a DOE program (Exs. P-P at 11-13, 15-18, P-W at 4).
On March 2, 2018, the student’s educational consultant completed and submitted an application for the DOE’s program on the student’s behalf, as recommended by the CSE.
The student’s application was declined, however, due to his low academic performance (Exs. P-
Q, P-W at 4).
The CSE reconvened on February 13, 2019 to develop an IEP for the student through February 2020. The CSE determined that the student continued to function at first grade level in reading and a second grade level in math. The CSE recommended that the student receive ICT services in math and ELA in a community school on a ten (10) month basis. Twelve month (or extended school year) services were discontinued. The CSE also recommended that the student receive SETSS in math and ELA and related services of: specialized transportation; group counseling, one time per week for thirty (30) minutes per session; group (3:1) 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; individual speech/language therapy, one time per week for thirty (30) minutes per session; group parent counseling and training, and a full-time, one-to-one health paraprofessional (Exs. P-U at 7-8, 10-11, P-W at 5).
The parent asserts that the student has regressed in inappropriate programs and placements offered by the DOE during the 2017/18, 2018/19 and 2019/20 school years (Ex. P-W at 5). This hearing ensued.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE did not submit a due process response, did not offer an opening or closing statement, and did not present testimony of any witnesses at the hearing. The DOE acknowledged that the student “require[d] additional services than what was recommended on the individual education[al] programs” (R. 29).
B. The Parents
The DOE denied the student a FAPE during the 2017/18, 2018/19, and 2019/20 school years. The student is entitled to independent educational evaluations and compensatory additional services to remedy the DOE’s denial of a FAPE over multiple school years (Exs. P-A,
P-W, P-X).
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).[5]
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 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); 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).
B. Recommended Public Programs
I find that the DOE denied the student a FAPE during the 2017/18, 2018/19 and 2019/20 school years. The DOE acknowledged at the hearing that the student “require[d] additional services than what was recommended on the individual education[al] programs” (R. 29). The evidence contained in the hearing record demonstrates that the student failed to make meaningful progress toward his annual goals (Exs. P-H, P-I, P-O, P-R, SD-5). A final academic report, dated June 25, 2019, reflects the student’s lack of progress after several years of ICT services; in reading, writing, listening, speaking and mathematics he earned a “1” (the lowest score) and in social studies and science he earned a “2” (Ex. P-W at 5).
C. Independent Educational Evaluations (“IEEs”)
The parent asserts that the student is entitled to independent evaluations at public expense (Exs. P-A, P-W, P-X).
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 responsible for the education of the child in question." See 34 C.F.R. §§ 300.502(a)(1), (3)(i).
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). "If the 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)-(ii); 8 NYCRR § 200.5(g)(1)(iv). If a 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 (5th 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). The DOE did not offer testimony of any witnesses to demonstrate the appropriateness of its evaluations of the student over the last three school years.
The student is presently due for a reevaluation, as his last psychoeducational evaluation occurred in May 2017 (Ex. P-E). The DOE will be directed to conduct an updated FBA and authorize the student’s receipt of the following independent educational evaluations at public expense: neuropsychological; occupational therapy; speech/language therapy; physical therapy; and assistive technology. The CSE will be directed to reconvene within thirty (30) days of the completion of all ordered evaluations to review the results of said evaluations.
D. 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 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. Id. at 526.
As noted above, the CSE failed to develop appropriate IEPs for the student for the 2017/18, 2018/19, and 2019/2020 school years and the absence of appropriate IEPs denied the student a FAPE. Therefore, I find that the student is entitled to compensatory additional services to remedy the denial of FAPE. Using the credible testimony offered by , Ms. , and the student’s parent, I shall apply a qualitative approach in fashioning a remedy of additional services for the student.
1. Tutoring
of the (the “ ”) evaluated the student on
January 24, 2019 (Exs. P-S at 1, P-T at 1. Prior to conducting the evaluation, reviewed the student’s March 1, 2018 IEP (Ex. P-T at 1). administered the following assessments to the student: Slosson Visual Motor Performance Test, Wold Sentence
Copying Test; Rosner’s Test of Auditory Perception; Chall Phonetic Analysis; Iota Sight World
Test; Slosson Oral Reading Test, Informal Reading Inventory, California Achievement Test
(CAT), Math Placement Exam (HMPE), and a Writing Sample (R. 42; Exs. P-T at 4-
5). The student’s scores on those evaluations evidenced grossly deficient reading, writing and math skills (Ex. P-T at 4-6).
The student’s performance on the evaluation was consistent with his performance on the WJ-IV, where he was functioning at a K.7 grade level in Letter Word Identification; 1.3 grade level in Applied Problems; K.7 grade level in Spelling; K.9 grade level in Passage Comprehension; 1.7 level in Calculation; and 1.7 grade level in Writing Samples (Ex. P-E at 4-
5). Notably, as highlighted in the DOE’s psychoeducational evaluation, the student continued to struggle with identifying words in print on the evaluation (R. 49; Ex. P-E at 5). Similar to the student’s struggles with phonetic skills on the Chall Phonetic Analysis (R. 45-47), the CSE found that the student had "not acquire[d] the fundamental decoding skills and need[ed]
instruction in phonics [and] vocabulary was another concern" (Ex. P-P at 3). The CSE also highlighted that the student had gaps in grade level word knowledge that also needed to be addressed. Furthermore, the CSE noted that the student also lacked decoding skills especially words with initial two or three blends (Ex. P-P at 3). The student’s poor performance on the Writing Sample, where he did "not know how to spell the words, [did] not know how to take the thoughts that he had in his head and [was not] able to put them down on paper" (R. 53), was also consistent with the CSE's observations that "what he has written was often unintelligible, mostly due to poor spelling (Ex. P-G at 2). Furthermore, the student struggled with all of the foundational skills in math including addition, subtraction, multiplication and division during the evaluation, which was consistent with his performance on the DOE psychoeducational evaluation, where he struggled to subtract two digit numbers; and could not multiply (Ex. P-E at 5).
Adopting Program Map recommendation, the DOE will be directed to authorize the student’s receipt of 717 hours of compensatory tutoring at an enhanced rate (Exs. P- S, P-T at 2).
2. ABA Therapy
testified at the hearing that she is a board certified behavior analyst (“BCBA”) and a licensed behavior analyst (“LBA”) in the State of New York (R. 67).
explained that ABA is a therapy that's based on the science of learning and behavior, which evaluates how behavior works, how behavior is affected by the environment, and how learning takes place. The goal of ABA is to increase the behavior that is functional and appropriate for the individual and also decrease any behavior that is harmful or a barrier to learning for the individual (R. 71). observed the student to demonstrate the core deficits of autism during the evaluation, including social deficits, communication deficits, restrictive and repetitive behavior, problem behavior and resistance (R. 75, 83). The student struggled on the PEAK assessment, indicating deficiencies in essential skills that a learner needs in order to learn more appropriately (R. 76-78). The student also demonstrated gaps in skills on the Socially Savvy assessment, including joint attention, social play, self-regulation, social-emotional, nonverbal and social language (R. 78-80). The student also demonstrated low scores on the Vineland Adaptive Behavior Scales (Ex. P-V at 7-8). also conducted a Functional Behavior Assessment (“FBA”) which found the student to demonstrate behaviors of body stiffening, yelling and bolting (Ex. P-V at 15).
The DOE will be directed to authorize the student’s receipt of 705 hours of compensatory ABA services at an enhanced rate. This award has been calculated by first multiplying
’ recommendation of fifteen (15) hours per week of direct ABA therapy by a forty-seven (47) week school year. While I have considered the parent’s request for as much as 1,500 hours of compensatory ABA therapy services (Ex. P-X at 13), I have ordered a lesser amount in light of the pediatric neurologist’s description of the student’s autism as “high functioning” (Exs.
P-B, P-J).
3. Related Services
a) Speech/Language Therapy
During the March 2017 neuropsychological evaluation, the student spoke in a mechanical monotone voice with significant word finding problems (Ex. P-B at 3). The May 2017 CSE noted that the student struggled with phonemic awareness skills, particularly blending, segmenting, adding or substituting phonemes (sounds) to create new words and read fluently
(Ex. P-G at 2). In February 2018, the student’s teacher also noted that he needed to work on expressing himself verbally (Ex. P-O at 1). The March 2018 CSE highlighted that that student presented with word finding difficulty during conversations and continued to struggle with decoding words and his skills in blending, segmenting, adding or substituting phonemes to create new words and read fluently (Ex. P-P at 3). In February 2019, the CSE noted that the student demonstrated difficulty choosing appropriate words to describe his reasoning when asked and needed to increase his phonemic awareness and on decoding mono- to multisyllabic words (Ex. P-U at 2).
The DOE will be directed to authorize the student’s receipt of eighty (80) hours of compensatory speech/language therapy at an enhanced rate.
b) Physical Therapy
The neuropsychologist described the student as a "socially immature, inattentive, clumsy boy with variable, frequently fleeting eye contact, monotone voice, low normal tone and hyperlaxity of the joints (Ex. P-B at 4). Notably, the CSE removed the student’s physical therapy mandate on from his 2017 IEP without an evaluation. When the parent sought to reinstate physical therapy, the CSE dismissed her concerns. The parent credibly testified, however, that the student continues to struggle with balance and coordination as he tends to hit the banister when walking upstairs (R. 120). He also falls frequently and demonstrates upper body muscle weakness (Ex. P-G at 3).
The DOE will be directed to authorize the student’s receipt of eighty (80) hours of compensatory physical therapy at an enhanced rate.
c) Occupational Therapy
The May 2017 CSE noted that the student presented with upper body and hand weakness which affected his writing performance (Ex. P-G at 3). The student also demonstrated an inferior grasp of writing utensils which affected his letter formation and resulted in poor writing endurance (Ex. P-G at 3). The May 2017 CSE also noted the student’s inconsistent letter size, word spacing, line alignment and letter reversals (Ex. P-G at 3). The March 2018 CSE noted that the student struggled to produce written tasks and continued to have difficulty with letter formation and sizing (Ex. P-P at 5). The February 2019 CSE noted that the student continued to struggle to complete written tasks and needed reminders to slow down when writing to produce legible work (Ex. P-U at 3). The parent also credibly testified that the student’s writing continued to contain inconsistent sizing, alignment and formation (R. 110).
The DOE will be directed to authorize the student’s receipt of eighty (80) hours of compensatory occupational therapy at an enhanced rate.
d) Counseling
As early as May 2017, the DOE’s own psychoeducational evaluation recommended that the student receive counseling "to address difficulties in adjusting to changing demands in the environment that lead to tendencies to avoid, withdraw, and feel anxious" (Ex. P-E at 8).
However, the CSE failed to recommend any counseling on the student’s May 2017 IEP. As a result, the student failed to receive counseling from September 2017 to March 2018.
Significantly, the student’s teacher reported that when he got upset, he would shut down, make grunting noises or scream. The teacher noted that the student did not know how to adequately express his frustrations (Ex. P-O at 1). The March 2018 CSE noted that the student had a tendency to internalize and take things to heart (Ex. P-P at 5). The February 2019 CSE noted that the student had become withdrawn (Ex. P-U at 2). The parent credibly testified that the student often become overwhelmed and frustrated while doing homework (R. 105, 109).
also noted the student's social emotional deficits during her August 2019 evaluation
(Ex. P-V).
The DOE will be directed to authorize the student’s receipt of eighty (80) hours of compensatory counseling at an enhanced rate.
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 2017/18, 2018/19, and 2019/20 school years is SUSTAINED;
2. Within thirty (30) days of its receipt of this Order, the DOE will request informed written consent of the student’s parent for an updated functional behavioral assessment (FBA) of the student;
3. Within thirty (30) days of its receipt of this Order, the DOE will authorize the student’s receipt of the following independent educational evaluations (IEEs) at public expense: (a) neuropsychological;
(b) occupational therapy; (c) speech/language therapy; (d) physical therapy; and (e) assistive technology;
4. Within thirty (30) days of the completion of all ordered evaluations, the CSE shall reconvene to review the results of the ordered evaluations; and
5. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services to remedy the denial of FAPE over the 2017/18, 2018/19 and 2019/20 school years:
a. 717 hours of compensatory tutoring at an enhanced rate;
b. 705 hours of compensatory ABA services at an enhanced rate;
c. 80 hours of compensatory occupational therapy at an enhanced rate;
d. 80 hours of compensatory physical therapy at an enhanced rate;
e. 80 hours of compensatory speech/language therapy at an enhanced rate; and
f. 80 hours of compensatory counseling at an enhanced rate.
Dated: March 23, 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
A. Individualized Education Program (IEP), 5/24/16, 19 pgs.
B. Child Neurology Evaluation, 3/20/17, 5 pgs.
C. Letter to District from parent, 4/3/17, 1 pg.
D. Classroom Observation 5/5/17, 1 pg.
E. Psychoeducational Evaluation, 5/5/17, 8 pgs.
F. Letter to parent from ( ), 5/12/17, 1 pg.
G. Individualized Education Program (IEP), 5/30/17, 11 pgs.
H. Teacher Update Report, 5/31/17, 1 pg.
I. Progress Report, 9/18/17, 1 pg.
J. Letter from , M.D., 10/25/17, 1 pg.
K. Letter to IEP Team from parent, 1/3/18, 1 pg.
L. Social History Update, 1/30/18, 2 pgs.
M. Classroom Observation, 2/5/18, 1 pg.
N. Occupational Therapy Clinical Guide, 2/8/18, 1 pg.
O. Progress Report, 2/26/18, 1 pg.
P. Individualized Education Program (IEP), 3/1/18, 19 pgs.
Q. Application for Program, 3/2/18, 2 pgs.
R. First Marking Period Report Card, 11/15/18, 2 pgs.
S. Student Test Administration, 1/24/19, 12 pgs.
T. Evaluation, 2/4/19, 8 pgs.
U. Individualized Education Program (IEP), 2/13/19, 12 pgs.
V. Initial ABA Assessment Report & Treatment Recommendations, 8/21/19, 44 pgs.
W. Amended Due Process Complaint Notice/Impartial Hearing Request, 7/15/19, 8 pgs.
X. Petitioner’s Closing Brief, 9/30/19, 16 pgs.
DEPARTMENT OF EDUCATION
1. Due Process Complaint Notice/Impartial Hearing Request, 9/7/17, 1 pg.
2. Prior Written Notice (Notice of Recommendation), 6/2/17, 4 pgs.
3. Prior Written Notice (Notice of Recommendation), 3/12/18, 5 pgs.
4. Speech/Language Progress Report, undated, 2 pgs.
5. Student Progress Report, undated, 1 pg.
6. Prior Written Notice (Notice of Recommendation), 3/8/19, 4 pgs.
7. Occupational Therapy Clinical Guide, 1/23/19, 1 pg.
IMPARTIAL HEARING OFFICER
None
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhi bits 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 all ow for adequate time for my review of the hearing record taken on the extensive issues raised in the parents’ 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. 133-134). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[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 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).
[5] 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) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.