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FINDINGS OF FACT & DECISION
Case Number: 172778
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: April 26, 2019
Actual Record Close Date: July 19, 2019
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 26, 2019
For the Student:
ESQ., Attorney
Director, (via telephone)
parent
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 Parent in a due process complaint notice dated March 9, 2018. 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 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 (“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 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 student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§
‘References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”’) typically conducts a trialtype 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), (xil).
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 § 200.5G)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1).
A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed me to hear this matter on March 9, 2018. See 8 NYCRR §
200.5G)(3)().. The parties entered into a partial resolution agreement on March 27, 2018, which provided the student with DOE-sponsored speech/language, occupational therapy, and assistive technology evaluations (Ex. SD-1). See 8 NYCRR § 200.5(j)(2)(iv). A pre-hearing conference with the parties was held on July 17, 2018 to clarify the hearing issues and set a date for the hearing. See 8 NYCRR § 200.5(j)(3)(x1). A hearing on the merits of this matter were thereafter held on April 26, 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).
iit. FACTUAL BACKGROUND
At the time of the March 9, 2018 due process complaint, the student was and had been diagnosed with Autism Spectrum Disorder (Exs. P-A, P-T). During the disputed school years, the student attended ( ) in . The student's current eligibility for special education and related services as a student with autism is not in dispute in this hearing. See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).?[3]
In the fall of 2016, the Parent requested that her son be evaluated for provision of special education services (Ex. P-J). In response to the Parent’s request, the CSE conducted a psychoeducational evaluation of the Student in December 2016. In that evaluation, the Parent reported that it took the Student a long time to complete assignments and that he was distracted
“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 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. 10-11, 68-70; Exs. THO-I — THO-XV. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). > 4utism 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 specified. 8 easily when doing work. As part of the evaluation, the evaluator administered the Stanford Binet Intelligence Scales Fifth Edition along with subtests of the Wechsler Individual Achievement Test
Third Edition. Results of cognitive testing indicated that the Student’s Full-Scale IQ fell within the Borderline range. He had some difficulty reasoning with verbal information as opposed to non-verbal Information as his non-verbal IQ was within the Low Average range along with a verbal IQ within the Borderline range. Results of achievement testing indicated that the Student presented with inconsistent skills in the areas of reading comprehension and math which the evaluator noted may have been impacting his academic performance (Ex. P-O).
On December 28, 2016, the CSE conducted a classroom observation during which the Student was found to be distracted on several occasions (Ex. P-N).
The CSE held a meeting on January 12, 2017 to determine the Student’s eligibility for special education services. The Student’s teacher reported that he was reading and writing below grade level. He was approaching grade level as it related to sight word recognition and phonemic awareness but had difficulty with reading comprehension tasks. He was nearly failing math and was having difficulty completing math word problems. The Student was noted to lack confidence as he was insecure about his abilities and he did not interact much with his classmates. He was also still suffering from severe asthma and food allergies which the Department noted were impacting his academic skills. The Department determined that the Student was eligible for special education services and classified him as a student with Other Health Impairment. The Department recommended Integrated Co-Teaching services five times per week for math, ten times per week for ELA, three times per week for social studies, and three times per week for NYCRR§ 2001.1(zz). science (Ex. P-D).
The Parent filled out a Vanderbilt Assessment Scale on February 13, 2017 in which she indicated that the Student very often does not pay attention to details, makes careless mistakes, is easily distracted, forgetful, and fidgets. The Parent also indicated that the Student often did not seem to listen when spoken to, did not follow through when given directions, and avoids, dislikes, or does not want to start tasks that require ongoing mental effort. The Parent also indicated that the Student is very often fearful, anxious, and worried, and that he is often sad, unhappy, or depressed, and is self-conscious or easily embarrassed (Ex. P-L).
On January 8, 2018, the CSE met to develop a new IEP for the Student. The CSE noted that the Student was performing below grade level in all areas and on a third grade level in both reading and math. In reading, the Student was having difficulty with reading comprehension tasks. Although he was able to take in literal information from a text, he was unable to draw inferences based upon the information embedded in a text. He also had difficulty recalling information he had just read from the text. In writing, the Student had difficulty with identifying the main ideas of a text and producing details to support the main ideas. Additionally, he struggled with producing coherent, linear, and connected thoughts down on paper. He also continued to struggle with organizing thoughts and ideas, creating a plan, and executing grade level pieces. In math, the Student had difficulty completing math problems. He struggled with addition and subtraction. The Student was also still exhibiting a lack of confidence and was insecure about his abilities. The CSE recommended ICT Services five (5) times per week for math, ten (10) times per week for ELA, three (3) times per week for social studies, and three (3) times per week for science (Ex. P-C).
On March 8, 2018, the Parent sent the CSE a letter requesting a comprehensive independent evaluation of the Student. Specifically, she requested an independent neuropsychological evaluation by , PhD, at his independent rate for such evaluation, $5,000. The Parent also requested an independent occupational therapy (including sensory processing) and speech-language evaluations by J at their independent rate of $1,500 for each, and an independent assistive technology evaluation by ( ) at their rate of $1,850 (Ex. P-G).
On April 16, 2018, the CSE conducted an occupational therapy evaluation of the Student.
The evaluator found that the Student demonstrated skills comparable to his classmates in the areas of activities of daily living, fine-motor, visual motor, sensory/self-regulation, and access/movement. The evaluator noted that the Student was independent in all self-care tasks and had good hand manipulation skills. He demonstrated good pencil skills but poor keyboarding skills. He scored in the typical and average ranges on standardized tests of visual motor integration, visual perception, and motor coordination. He scored in the typical range on a standardized assessment of sensory processing skills and was able to navigate the school building safely. Occupational therapy services were not recommended (Ex. SD-2).
On May 4, 2018, the CSE conducted a speech-language evaluation of the Student. The evaluator administered the Clinical Evaluation of Language Fundamentals-5 (“CELF-5”’’) which indicated below average core language skills. The evaluator also administered the Comprehensive Assessment of Spoken Language — 2 (“CASL-2”) which indicated that his awareness of nonliteral language was in the average range. On the CELF-5 Reading Comprehension subtest, the Student struggled to appropriately comprehend what he was reading. The evaluator recommended speech-language therapy but did not indicate the frequency, duration, group size, or service delivery model (Ex. SD-3).
On May 31, 2018, the CSE conducted an assistive technology evaluation of the Student.
The Student demonstrated the ability to produce legible writing with improved spelling accuracy and no complaints of pain when utilizing a touchscreen tablet with apps for word prediction with flexible spelling and auditory feedback and note taking features. During the evaluation, the Student did not demonstrate a need to utilize voice dictation to assist him with spelling.
However, the evaluator noted that it could be useful for him for more challenging words. Based on the results of the evaluation, the evaluator recommended the trial use of a touchscreen tablet with apps for word prediction (Ex. SD-4).
In July 2018, Dr. performed a neuropsychological evaluation of the Student.
Dr. found that the Student’s overall intellectual functioning is within the low average range, with stronger verbal skills (average) than nonverbal abilities (low average). Relative strengths (average range) are noted in the areas of vocabulary knowledge, verbal abstract classification, and visual-spatial mental rotation and synthesis. Relative weaknesses (borderline range) are seen in the areas of auditory working memory, visual working memory, and rapid scanning and matching of symbols. Results of academic testing reveal that the Student's academic skills vary greatly. He performed in the average range on measures of basic reading skills (e.g., sight word reading, decoding), while his reading comprehension is in the very low range and at least 5 years below grade level. His untimed math skills are in the below average to average range (though 1-2 year grade level), while his addition and subtraction fluency scores are in the low range. His writing skills range from below average to low, with grade equivalences ranging from 1.0 to 3; his weakest scores are on measures of sentence combining and sentence building, which are both about 4-5 years below grade level. In terms of graphomotor skills, the Student’s ability to copy increasingly complex geometric designs was in the average range. His ability to identify matching designs within an array was average, and his ability to trace between increasingly narrow lines was also in the average range. On tests of memory skills, the Student's immediate recall was intact for both verbal and visual stimuli. His immediate visual recall was somewhat stronger for meaningful information (i.e., details of picture scenes) than for abstract information. His ability to freely recall verbal stimuli after a delay was somewhat stronger for a list of unrelated words than for stories, suggesting he benefited from repeated exposure to the list over four learning trials. His ability to recognize both verbal and visual stimuli after a delay was in the average range (Ex. P-K).
On October 23, 2018, the CSE conducted a follow-up to the assistive technology evaluation which indicated that the Student did not use the assistive technology during the trail period and therefore it was not recommended to be added to his IEP (Ex. SD-5).
On December 7, 2018, the CSE reconvened. The CSE noted that the Student required consistent class routines and struggled to adapt to significant changes in routines. He did not like loud settings and would become frustrated to the point of shutting down. In Math, the Student was functioning on a third grade level. In ELA, the Student was functioning on a fourth grade level. In Science, the Student demonstrated understanding of sixth grade science material. The CSE changed the Student’s classification to Autism and recommended a 12:1+1 Special Class seven (7) times per week for Math, eight (8) times per week for ELA, and three (3) times per week for Sciences, with related services of group counseling one time per week for thirty (30) minutes, group speech-language therapy two (2) times per week for thirty (30) minutes, and a full-time, individual health paraprofessional.
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE indicated that it was not calling any witnesses or presenting a defense for any of the years in question. The DOE rested on its submitted evidence at the hearing (R. 32).
B. The Parent
The DOE failed to provide the Student with a FAPE for the 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. The Student is also entitled to compensatory social skills training and parent counseling and training.*
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.
“The Parent’s requests for non-public school placement, a sensory processing evaluation, and compensatory speech-language therapy and counseling were all withdrawn without prejudice. 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); RE. 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).
"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; A.C. v. Bd. of Educ., >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. 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(£)(3)(E)@i); 34 C.F.R. § 300.513(a)(2); 8 NYCRR §
200.5(j)(4)(11); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; MH, 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), affd, 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 CFR. § 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)(i), (2)()(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. 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. Jd. at 526.
As noted above, the CSE failed to develop appropriate IEPs for the student for the 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.
Ms. testified that due to the Student is performing approximately five (5) years behind in reading (R. 49). Ms. determined that the Student requires 450 hours of reading remediation. That calculation was based on forty-five (45) minutes of reading remediation, five (5) days per week, over the course of three (3) school years for a total of 450 hours (R. 51). Ms.
testified that the Student is performing approximately 3-4 years behind in Math (R. 49).
Ms. determined that the Student requires 180 hours of math remediation. That calculation was based on thirty (30) minutes of math remediation, three (3) days per week, over the course of three (3) school years for a total of 180 hours (R. 52). Ms. testified that due to the Student is performing approximately five (5) years behind in writing and requires 300 hours of writing remediation (R. 49). That calculation was is based on forty-five (45) minutes of writing remediation, two (2) days per week, over the course of three (3) school years for a total of 300 hours (R.52-53). Ms. also testified that the Student has significant difficulty interacting appropriately with peers and that he should have received a minimum of forty-five (45) minutes of social skills training, two (2) days per week over the course of three (3) school years (R. 54).
As such, the Student should receive 180 hours of compensatory social skills training at the rate of $126 per hour (R. 54). Ms. also testified that the Parent should have been receiving a minimum of four (4) hours per month of parent counseling and training over the last three (3) school years (R. 47). As such, the Student and his family should receive 120 hours of compensatory parent counseling and training at a rate of $126 per hour (R. 48). Lastly, Ms.
testified that the Student should receive sixty (60) hours of BCBA supervision at a cost of $150 per hour, which is based on two (2) hours per month over the course of three (3) school years (R. 55-56).
The DOE will be directed to authorize the Student’s receipt of 930 hours of one-to-one tutoring at a rate not to exceed $110 per hour through or a similar agency. If an alternative agency is used, 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 the Parent with MetroCards so that the student can safely attend. 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). The DOE will also be directed to authorize the Student’s receipt of 120 hours of parent counseling and training at a rate not to exceed $126 per hour; 180 hours of social skills training at a rate not to exceed $126 per hour; and 60 hours of BCBA supervision at a rate not to exceed $150 per hour.
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
The Parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2015/16, 2016/17, and 2017/18 school years is SUSTAINED; and The Parent’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 930 hours of one-to-one tutoring at public expense, which shall be scheduled at the Parent’s discretion, and provided by or a similar agency at a rate not to exceed $110 per hour. The DOE shall also authorize the Student’s receipt of: (a) 120 hours of parent counseling and training at a rate not to exceed $126 per hour; (b) 180 hours of social skills training at a rate not to exceed $126 per hour; and (c) 60 hours of BCBA supervision at a rate not to exceed $150 per hour.
Dated: July 22, 2019
/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, 3/9/18, 11 pgs.
FTOVPDSOMZAYO>ASHOK
Individualized Education Program (IEP), 12/7/18, 17 pgs.
Individualized Education Program (JEP), 1/8/18, 12 pgs.
Individualized Education Program (IEP), 1/12/17, 9 pgs. [Reserved| [Reserved|
IEE Request Letter/Confirmation, 3/8/18, 2 pgs.
Consent for Initial Provision of Services, 2/15/17, lpgs
Prior Written Notice, 2/6/17, 4pgs
Parent Request for Evaluations, 11/2/16, lpg
Neuropsychological Evaluation, 7/24/18, 19pgs
Vanderbilt Assessment Scale, 2/13/17, 2pgs
Classroom Observation, 1/19/17, 2pgs
Classroom Observation, 12/28/16, lpg
Psychoeducational Evaluation Report, 12/22/16, 6pgs
Progress Report, 2017, lpgs
Report Card MP4, 2016-2017, 2pgs
Report Card MP1, 2016-2017, 2pgs
Team Assessment, 2016-2017, 13pgs
Dr. Diagnosis Letter, 3/28/18, lpg
DEPARTMENT OF EDUCATION
Partial Resolution Agreement, 3/23/18, 2pgs
PWANDTMWR
Occupational Therapy Evaluation, 4/16/18, 8pgs
Speech Language Evaluation, 5/4/18, 15pgs
Assistive Technology Evaluation, 5/31/18, 9pgs
Assistive Technology Evaluation Follow Up, 10/23/18, 13pgs
Meeting Notice, 11/29/18, 3pgs
Individualized Education Program, 12/7/18, l6pgs
Prior Written Notice, 2/7/19, 4pgs
IMPARTIAL HEARING OFFICER
I. Confirmation of Extension, 6/1/18, 1 pg.
II Confirmation of Extension, 6/19/18, 1 pg.
Il. Confirmation of Extension, 7/22/18, 1 pg.
IV. Confirmation of Extension, 8/22/18, 1 pg.
V. Confirmation of Extension, 9/21/18, 1 pg.
VI. Confirmation of Extension, 10/21/18, 1 pg.
VI. Confirmation of Extension, 11/20/18, 1 pg.
VIL. Confirmation of Extension, 12/20/18, 1 pg.
IX. Confirmation of Extension, 1/19/19, 1 pg. Confirmation of Extension, 2/18/19, 1 pg.
XI. Confirmation of Extension, 3/20/19, 1 pg.
XI. Confirmation of Extension, 4/19/19, 1 pg.
XIII. Confirmation of Extension, 5/19/19, 1 pg.
XIV. Confirmation of Extension, 6/18/19, 1 pg.
XV. Confirmation of Extension, 7/18/19, 1 pg.
XVI. Interim Order, 7/22/18, 5 pgs.
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and 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. 10-11, 68-70; Exs. THO-I — THO-XV. 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 specified. 8
[4] The Parent’s requests for non-public school placement, a sensory processing evaluation, and compensatory speech-language therapy and counseling were all withdrawn without prejudice
[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.