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FINDINGS OF FACT AND DECISION
Case Number: 169316
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 30, 2017
July 12, 2018
Actual Record Closed Date: April 9, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 30, 2017
For the Student:
Attorney
For the Department of Education:
Impartial Hearing Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 12, 2018
For the Student:
Attorney
Director, (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 requested by the attorneys for the student and the guardian in a due process complaint notice dated September 11, 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 for the 2014/15, 2015/16, 2016/17 and 2017/18 school years (Ex. P-A).[1]
When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“TEP”), 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. §8§ 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 USS.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)-(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 student.” See 8 NYCRR § 200.5(4)(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 (“THO”) 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 as “Ex.” 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()(3)(v), (vii), (x11).
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(q)(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 [HO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR§ 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on September 21, 2017 following the recusal of another hearing officer. See 8 NYCRR § 200.5(j)(3)(1). The parties entered into a partial resolution agreement on October 31, 2017 (later amended in February 2018), which provided the student with an independent neuropsychological evaluation, an independent functional behavioral assessment and behavioral intervention plan, a DOE speech/language evaluation, as well as 450 compensatory tutoring hours to be provided by the (Ex. SD-6). See 8 NYCRR § 200.5(j)(2)(iv). Hearings on the merits of this matter were thereafter held on: November 30, 2017 and July 12, 2018.[2] Appended to this decision are: a statement of appeal rights;
"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 to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the guardian’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. 12-13, 61-63; Exs. IHO-I - IHO-XVII). See 34 C.F.R.§ 300.515(c); 8 NYCRR § 200.5G)(5). a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5()(5)(v).
Il. FACTUAL BACKGROUND
At the time of the September 11, 2017 due process complaint, the student was and had been diagnosed with: ADHD (combined presentation), an acute stress disorder, a language disorder (receptive and expressive language delays), and a specific learning disorder (in reading, written expression, and mathematics) (Ex. P-A, PGG at 16). During the 2017/18 school year, the student repeated the third grade at Public School (P.S.) 28 in the Bronx (Ex. P-A at 1). The student's eligibility for special education and related services as a student with a speech or language impairment is not in dispute in this hearing (Exs. P-A, P-HH at 1, SD-1 at 1). See 34 C.F.R. § 300.8(c)(11); 8 NYCRR§ 200.1(zz)(11).[3]
The student repeated first grade during the 2014/15 school year due to significant reading deficits. Notwithstanding the student’s reading struggles and lack of meaningful academic progress, the CSE did not seek to evaluate the Student for special education services during the 2014/15 and 2015/16 school years (Ex. P-A at 2).
Due to concerns about the student’s school functioning, his guardian sought help at . A June 2016 School Report and a NICHQ Vanderbilt Assessment Scale completed by the student’s teacher for noted severe educational, behavioral, and social/emotional deficits (Exs. P-A at 2, P-W, P-X, P-Y, P-Z)
In August 2016, the student participated in a psychoeducational evaluation conducted by the DOE. As measured by the Wechsler Intelligence Scale for Children — Fifth Edition (““WISC-V”), the student’s Full Scale IQ score fell in the Extremely Low range when compared to other children his age (FSIQ = 67). The language skills assessed were one of the student’s lowest areas of functioning. He showed weak performance on the Verbal Comprehension Index (VCI = 65). Verbal scores emerged as Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational experience. 8 NYCRR § 200.1(zz). an area of need when compared to his performance on visual spatial (VSI = 81) and processing speed (PSI = 86) tasks. Performance on visual tasks was slightly below other children his age (VSI = 81), but was a relative strength compared to his fluid reasoning (FRI = 69) skills. The student’s fluid reasoning skills were significantly lower than other children his age (FRI = 69), and were relatively weak compared to his performance on processing speed (PSI = 86) tasks. Performance on working memory tasks was below most other children his age (WMI = 72), and was relatively weak compared to processing speed skills (PSI = 86) (Ex. SD-5 at 5).
The student was given the Wechsler Individual Achievement Test — Third Edition (“WIAT-IIT’) to assess his academic abilities. Within reading, the student was towards the lower end of average, in both his comprehension and sight word reading skills. His early reading skills were below average due to his difficulty in identifying matching words that begin or end with the same sound. The student’s math abilities fell within the average range, but when a time limit was put in place, he functioning fell below average. The student’s spelling abilities fell within the lower end of average, having difficulty beginning on a third grade level (Ex. SD-5 at 5).
In August 2016, the DOE also conducted a speech and language evaluation of the student. During that evaluation, the student was administered the Clinical Evaluation of Language Fundamentals — Fifth Edition (““CELF-5”) from which his Core Language Score was derived. The student’s Core Language Score of 70 placed his overall performance in the Very Low range. The Receptive Language Index score of 70, which is a measure of listening and auditory comprehension, was in the Very Low range and indicated severe delays. The Expressive Language Index score of 71, which is a measure of the overall oral language expression was in Low range and indicated moderate delays (Ex. P-T at 1).
On August 25, 2016, the CSE convened to develop an IEP for the student for the 2016/17 school year. The CSE recommended that the student receive the majority of his instruction in a general education setting supported by integrated co-teaching (“ICT”) services in a community school. The CSE also recommended that the student receive “State regulations define an ICT class as "the provision of specially designed instruction and academic group (3:1) speech/language therapy, two (2) times per week for thirty (30) minutes per session, and modified promotion criteria (Ex. P-B at 9-10, 15-16).
The student’s final 2016/17 Report Card also memorialized the student’s academic deficits. The student received a score of “well below standards” in reading and writing and “below average” in listening speaking and language, mathematics, science and social studies. At the bottom of the report card, it was noted that the student “did not meet the promotion criteria,” so he was required to repeat third grade in the 2017/18 bd school year (Exs. P-A at 4, P-AA).
The CSE reconvened on June 13, 2017 to develop an IEP for the student for the 2017/18 school year. The CSE continued to recommended that the student receive the majority of his instruction in a general education setting supported by ICT services in a community school. The CSE also recommended that the student receive related services of individual and group (3:1) speech/language therapy (Ex. SD-1 at 8-9).
In a September 2017 letter, the student’s guardian disagreed with the CSE’s evaluations of the student and requested an independent bilingual neuropsychological evaluation and an independent bilingual speech and language evaluation (Exs. P-A at 5, P C).
In January 2018, the student participated in an independent neuropsychological evaluation conducted by , Ph.D. Results of the evaluation indicated that the student presents with marked difficulties in emotional, social, adaptive, attention and executive functioning skills. He also presents with a receptive/expressive language disorder and severe specific learning difficulties in reading, writing and math (Ex. P-GG at 19).
On the WISC-V, the student achieved a Full Scale IQ score of 70 or at the Very Low level. Verbal Comprehension Index (a measure of crystallized intelligence) was 76 or at the Very Low level; Visual Spatial Index (a measure of ability to evaluate visual instruction provided to a group of students with disabilities and nondisabled students." See 8 NYCRR § 200.6(g). The "maximum number of students with disabilities receiving [ICT] services in a class... shall not exceed 12 students." 8 NYCRR § 200.6(g)(1). In addition, State regulations require that an ICT class shall "minimally include a special education teacher and a general education teacher" as staffing. See 8 NYCRR§ 200.6(g)(2). details and to understand visual spatial relationships and to construct geometric designed from a model) was 75 or at the Very Low level; Fluid Reasoning Index (a measure of ability to detect the underlying conceptual relationship among visual objects and to use reasoning to identify and apply rules) was 79 or at the Very Low level; Working Memory Index (a measure of ability to register, maintain, and manipulate visual and auditory information in conscious awareness) was 79 or at the Very Low level; and Processing Speed Index (a measure of the speed and accuracy of visual identification, decision-making, and decision implementation) was 83 or at the Low Average level (Ex. P-GG at 18).
In the same evaluation, the student was administered a set of tests from the Bateria II] Woodcock-Munoz Tests of Achievement and the Woodcock Johnson IV (WJ
IV) Tests of Achievement and additional tests from the Woodcock Johnson HI Normative Update (WJ III NU) Tests of Achievement. In decoding skills (English), the student earned a standard score of 64 or at the Extremely Low level (GE = high 1* grade). In word attack (English), the student earned a standard score of 73 or at the Very Low level (GE = mid 1“ grade). In sentence reading fluency (English), the student earned a standard score of 79 or at the Very Low level (GE = high 2" grade). The student’s word reading fluency (English) standard score of 83 fell at the Low Average level (GE = low 3 grade). The student’s reading vocabulary (English) standard score of 65 fell at the Extremely Low level (GE = mid 1" grade). The student’s oral comprehension (English) standard score of 82 fell at the Low Average range (GE = mid 2TM grade). His oral comprehension (Spanish) standard score of 39 fell at the Extremely Low level (GE = below kindergarten). In spelling skills (English), the student’s standard score of 72 fell at the Very Low level (GE = low 2TM grade). The student’s score in math calculation (English) of 84 fell at the Low Average level (GE = mid 3TM grade). The student’s math facts fluency (English) standard score of 76 fell at the Very Low level (GE = high 2" grade). The student’s picture vocabulary (English) standard score of 73 fell at the Very Low level (GE = mid kindergarten). His picture vocabulary (Spanish) standard score of 32 fell at the Extremely low level (GE = below kindergarten) (Ex. P-GG at 19).
On the Adaptive Behavior Assessment System, Third Edition (““ABAS-3”), the student’s General Adaptive Composite (GAC = 79) was at the Very Low level. Conceptual Composite (72) and Social Composite (78) were also at the Very Low level. The student’s Practical Composite (89) was at the Low Average level. The student’s practical skills were significantly greater than his conceptual or social skills (Ex. P-GG at 19).
The CSE reconvened on June 12, 2018 to develop an IEP for the student for the 2018/19 school year. The CSE recommended that the student receive the majority of his instruction in 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 individual and group (2:1) speech and language therapy (Ex. P-HH at 7-8).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE rested on its submitted evidence at the hearing (R. 54).
B. The Guardian
The DOE failed to provide the student with a FAPE for the 2014/15, 2015/16, 2016/17, and 2017/18 school years. The student is entitled to compensatory additional services (i.e., tutoring) to address the denial of FAPE. Claims for compensatory social skills training and counseling were withdrawn at the hearing. The guardian also seeks an independent speech/language evaluation and an independent occupational therapy evaluation of the student (R. 54-61; Ex. P-A).
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); MH. 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 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. 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)G); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5G)(4)Gi); 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), affd, 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 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)(), (2)G)(A); 8 NYCRR § 200.4(d)(2)(ii), 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. Proposed Public Program
The DOE failed to establish that its recommended placement was appropriate or could meet the student’s needs. The DOE also failed to provide any basis upon which the CSE team could have reasonably relied to justify its recommendations as appropriate.
C. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time. See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability, Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’! 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. /d. at 526.
As noted above, the CSE failed to develop appropriate IEPs for the student for the 2014/15, 2015/16, 2016/17 and 2017/18 school years and the absence of an 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. , I shall apply a qualitative approach in fashioning a remedy of additional services for the student.
On May 14, 2017, the student participated in a comprehensive educational evaluation at the (“ ”) to determine the student’s thenpresent levels of performance. On the Slosson Oral Reading Test, the student was rated as “poor.” The Student’s Informal Reading Inventory was rated as “poor” on both the Oral Listening section and the Silent Passage section. The Writing Sample was also determined to be “poor.” On the Math Placement Exam, skills were tested that were expected to be mastered in prior grades. The student did not show mastery of any of the multiple skills tested. The student’s comprehension was assessed by means of the Burns & Roe Informal Reading Inventory, where the student was asked to read three (3) passages aloud, on each at the third, fourth, and fifth grade levels. After reding of each passage, the certified teacher asked questions, to which the student responded orally. The student received a rating of “poor” for each passage. On the California Achievement Test’s reading comprehension subtest, a standardized, nationally normed, multiple choice test, the student achieved a grade equivalency of 2.1, placing the student in the 15" percentile nationally, with a rating of “very poor.” On the Chall Phonetic Analysis, the student demonstrated mastery of only three out of nine skills tested. The student’s performance on Rosner’s Test of Auditory Perception was determined to be at the first grade level (Exs. P-A at 5, P-Q, P-S).
After this extensive assessment, the created an individualized program to address the student’s academic deficits and recommended that he receive a total of 673 hours of one-to-one make-up tutoring to compensate the for the denial of a FAPE (R. 38-40; Ex. P-R). Given that the parties previously agreed to the student’s receipt of 450 hours of compensatory additional services (Ex. SD-6), the DOE will be directed to authorize the student’s receipt of 223 additional hours of one-to-one tutoring at a rate not to exceed $100 per hour. The DOE will also be directed to directly pay the $295 for the cost of diagnostic testing and $100 for ’s standard registration. Lastly, as the student would be unable to access the additional services without transportation (Ex. P-A at 10), the DOE will be directed to provide the student and guardian with MetroCards so that the student can safely attend the . 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
The guardian seeks an independent speech and language evaluation and an independent occupational therapy evaluation of the student (R. 59-60; Ex. P-A).
Generally, a school district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the parent or teacher requests a reevaluation. See 34 C.F.R. § 300.303(a)(2); 8 NYCRR § 200.4(b)(4). A school district, however, need not conduct a reevaluation more frequently than once per year unless the parent and the school district otherwise agree and must conduct one at least once every three years unless the school district and the parent agree in writing that such a reevaluation is unnecessary. See 8 NYCRR § 200.4(b)(4); see also 34 C.F.R. §§ 300.303(b)(1)-(2).. A school district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status, see 20 U.S.C. § 1414(b)(3)(B); 34 C.F.R. § 300.304(c)(4); 8 NYCRR § 200.4(b)(6)(vii), and an evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified, see 34 C.F.R. § 300.304(c)(6); 8 NYCRR § 200.4(b)(6)(ix).
Subject to certain limitations, federal and State regulations provide that a parent has a right to obtain an IEE at public expense if a parent disagrees with an evaluation obtained by the school district. See 34 C.F.R. §§ 300.502(a), (b); 8 NYCRR § 200.5(g)(1). A school district may request the reason that the parent(s) disagree with an evaluation, but may not require an answer from the parents or impose any additional conditions prior to providing an IEE at public expense. See 8 NYCRR 8§ 200.5(g)(1)(G), (iii). Rather, “[i]f a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.” 8 NYCRR § 200.5(g)(1)(iv).
In a letter dated September 10, 2017, the guardian objected to the DOE’s August 2016 speech and language evaluation of the student, and requested an independent bilingual speech and language evaluation of the student at public expense (Exs. P-C, PT). Although the DOE agreed, in an October 2017 Resolution Agreement, to conduct an updated speech and language evaluation, it failed to do so (R. 59-60; Ex. SD-6). The DOE will, therefore, be directed to authorize the student’s receipt of an independent bilingual speech and language evaluation at public expense. Also, based on the recommendation for Dr. (R. 60; Ex. P-GG at 20), and consistent with the authority of the undersigned to order an independent educational evaluation, see 8 NYCRR § 200.5(G)(3)(viii), the DOE will be directed to authorize the student’s receipt of an independent occupational therapy evaluation at public expense.
The CSE will be directed to reconvene and review the results of the independent evaluations within thirty (30) days of their completion. All other claims for relief are denied.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT,
IT IS
HEREBY ORDERED THAT:
The guardian’s claim that the student was denied a free appropriate public education (FAPE) for the 2014/15, 2015/16, 2016/17, and 2017/18 school years is SUSTAINED; The guardian’s claim for compensatory additional services for the student is GRANTED; and within thirty (30) days of its receipt of this Order the DOE shall authorize the student’s receipt of 223 hours of one-to-one tutoring at public expense, which shall be scheduled at the guardian’s discretion, and provided by at a rate not to exceed $100 per hour.
Within thirty (30) days of the date of this Order, the DOE shall also directly pay , $295 for the cost of diagnostic testing and $100 for the center’s standard registration fee; and Within thirty (30) days of the date of this Order, the DOE shall provide the student with transportation to and from compensatory additional services delivered at , which the DOE may fulfill by providing the student and guardian with prepaid MetroCards; and The guardian’s claim for independent educational evaluations is also GRANTED; and within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of an independent bilingual speech and language evaluation at public expense and an independent occupational therapy evaluation at public expense; and Within thirty (30) days of completion of said independent educational evaluations, the CSE shall convene and review the results of said independent educational evaluations.
Dated: May 1, 2019
/s/ Jeffrey J. Schiro, Esq.
JEFFREY J. SCHIRO, ESQ.
Impartial Hearing Officer
JJS:
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
DOCUMENTATION ENTERED INTO THE RECORD
PARENTS
Due Process Complaint Notice/Impartial Hearing Request, 9/11/17, 13 pgs.
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Individualized Education Program (IEP), 8/25/16, 17 pgs.
IEE Request Letter, 9/10/17, 1 pg.
Email Correspondence Regarding Recommendation, 5/16/17, 1 pg.
Prior Written Notice (Notice of Recommendation), 9/1/16, 4 pgs.
Consent for Initial Provision of Services, 8/25/16, 1 pg.
Social History Package, 8/12/16, 1 pg.
Assessment Planning, 8/12/16, 3 pgs.
Notice of Social History, 6/17/16, 1 pg.
Prior Written Notice (Notice of Recommendation), 6/3/16, 6 pgs.
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Case Closing Notice, 11/24/14, 1 pg.
Notice of Social History, 11/18/14, 1 pg.
Notice of Social History, 11/10/14, 1 pg.
Prior Written Notice, 11/3/14, 6 pgs.
Notice of Social History, 10/28/14, 1 pg.
Parent Request Letter, 10/28/14, 1 pg.
Student Academic Results, 5/14/17, 3 pgs.
Program Map, 5/14/17, 2 pgs.
Student Testing Packet, 5/14/17, 56 pgs.
DOE Speech/Language Evaluation, 8/12/16, 6 pgs.
DOE Psychoeducational Evaluation Report, 8/12/16, 6 pgs.
Classroom Observation, 8/12/16, 1 pg.
NICHQ Vanderbilt Assessment Scale, 6/14/16, 2 pgs.
Student Progress Report, 6/13/16, 2 pgs.
School Report, undated, 3 pgs.
Student Progress Report, undated, 2 pgs.
Report Card, 2016/17, 2 pgs.
Referral for Speech/Language, 3/9/17, 2 pgs.
CC. Physical Examination, 4/12/16, 3 pgs.
DD. Physician Referral for Evaluation, 4/12/16, 2 pgs.
EE. SESIS Events Log, various dates, 7 pgs.
FF. Teacher Report, 1/24/18, 3 pgs.
GG. Bilingual Neuropsychological Evaluation, 3/2/18, 29 pgs.
HH. Individualized Education Program (IEP), 6/12/18, 15 pgs.
DEPARTMENT OF EDUCATION
Individualized Education Program (IEP), 6/13/17, 16 pgs.
Prior Written Notice (Notice of Recommendation), 6/16/7, 5 pgs.
FNYv
Minor Custody Letter/Authorization for Guardianship, 7/13/16, 2 pgs.
Classroom Observation, 8/12/16, 1 pg.
DOE Psychoeducational Evaluation Report, 8/12/16, 6 pgs.
Partial Resolution Agreement, 10/24/17, 4 pgs.
IMPARTIAL HEARING OFFICER
[. Confirmation of Extension, 11/14/17, 1 pg.
I. Confirmation of Extension, 12/22/17, 1 pg.
Ii. Confirmation of Extension, 1/22/18, 1 pg.
IV. Confirmation of Extension, 2/22/18, 1 pg. Confirmation of Extension, 3/28/18, 1 pg.
VI. Confirmation of Extension, 4/23/18, | pg.
VIL. Confirmation of Extension, 6/1/18, 1 pg.
VIL. Confirmation of Extension, 6/21/18, 1 pg.
IX. Confirmation of Extension, 7/26/18, 1 pg. Confirmation of Extension, 8/27/18, 1 pg.
XI. Confirmation of Extension, 9/28/18, 1 pg.
XI. Confirmation of Extension, 10/28/18, 1 pg.
XIV. Confirmation of Extension, 11/27/18, 1 pg.
XV. Confirmation of Extension, 12/27/18, 1 pg.
XVI. Confirmation of Extension, 1/22/19, 1 pg.
XVII. Confirmation of Extension, 2/18/19, 1 pg.
XVIII. Confirmation of Extension, 3/27/19, 1 pg.
Footnotes
[1] "References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted
[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 to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the guardian’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. 12-13, 61-63; Exs. IHO-I - IHO-XVIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Speech or language impairment means a communication disorder, such as stuttering, impaired articulation, a language impairment or a voice impairment, that adversely affects a student’s educational experience. 8 NYCRR § 200.1(zz).
[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.