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FINDINGS OF FACT AND DECISION
Case Number: 173474
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: December 21, 2018
Actual Record Closed Date: June 26, 2019
Hearing Officer: Jeffrey Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 21, 2018
For the Student:
Attorney
Parent
Center Director- (via telephone)
For the Department of Education:
Impartial Hearing Representative
INTRODUCTION
On the above dates, an impartial hearing was held pursuant to the Individuals with Disabilities in Education Act (IDEA), 20 U.S.C. § 1415 (f)(1), regarding the education program of a school-aged child, (the “Student”). The hearing was conducted at the impartial hearing office of the New York City Department of Education, at 131 Livingston St., Brooklyn, NY. At hearing, the Department of Education (hereinafter referred to as the “DOE”) was represented by , District Representative, and the parent was represented by , of counsel to the The DOE did not offer any witness testimony but offered Exhibits 1-2, which were received in evidence. The Parent offered her own testimony and the testimony of -Center Director of (“ ”), as well as Exhibits A-GG which were received in evidence. Both of the Parent witnesses testified on direct examination by affidavit and were available at hearing for cross-examination. A list of documents received into evidence is attached to this Decision and Order.
STATEMENT OF FACTS AND PROCEDURAL POSTURE
The Student is a student with various learning disabilities, including diagnoses of orthographic dyslexia, dyscalculia, attention-deficit/hyperactivity disorder (“ADHD”), combined presentation, fine motor skill impairments, specific learning disorders with impairments in reading, written expression and mathematics, and unspecified depressive disorder (Exs. B-8, U-16). The Student’s eligibility for special education and related services is not in dispute.
As of the time of the hearing, the Student attended , ina tenth-grade 15:1 special class (Exs. W-15, GG-1 ¶2). His educational program also included three periods per week of Special Education Teacher Support Services (“SETSS”) in a separate location in math, two periods per week of SETSS in a separate location in ELA, one weekly 1:1 counseling session and two weekly 1:1 speech language therapy (“SLT”) sessions (Ex. W-15).
A prior impartial hearing concerning this student resulted in a Findings of Fact and Decision dated May 1, 2014 (“FOFD”), which directed the DOE to provide, among other things, evidence-based reading and math instruction to the Student (Exs. B-18, GG-1 ¶3). According to the Parent, whose testimony was uncontested, the DOE has not provided this instruction for the last three school years. The psychologist who conducted the Student’s first neuropsychological evaluation, which was relied upon by the hearing officer in the prior hearing, predicted at that hearing that the lack of such instruction, coupled with a small classroom setting, would prove to be educationally “catastrophic” for the Student (see Exs. B-8 to B-9; and see Ex. Z-9 to Z-12 for the diagnostic findings and recommendations in that evaluation). However, the Student received this instruction for only a short year, if at all, and remained in a large integrated co-teaching (“ICT”) classroom through September 2017 (see Exs. C-9, D-8, L-8, GG-2 to GG-4). The Individualized Education Program (“IEP”) developed shortly after the FOFD is the only IEP which prescribes the evidence based reading and math instruction for the Student, and language in the IEP tracked the IHO’s Order (compare Ex. B-18 to C-5). That IEP stated that such instruction would take place during the Student’s SETSS sessions, beginning on May 20, 2014. (Ex. C-5, C-9). It otherwise recommended an ICT classroom (against the Parent’s objection), one weekly counseling session and two weekly OT sessions (Ex. C-3, C-9). By December 2015, all specialized instruction had been removed from the Student’s program. (See Ex. D-3). The Parent continued to request a more supportive program and a non-public school placement, and her request continued to be denied. (Ex. D-2, D-14, E-1, E-2). The Student failed the New York State tests in the spring of 2015 and the spring of 2016 (Exs. I-1, L-1).
In November 2016, when the Student was in the eighth grade, the Parent gave her mother— (the Student’s ), authorization to act on the Student’s behalf with respect to his educational programs (Exs. K, GG-2 ¶ 6). . attended a meeting of the Committee on Special Education (“CSE”) on December 5, 2016 to develop a new Individualized Education Program (“IEP”) for the Student (Ex. GG-3 ¶7). She subsequently transmitted a brief note, followed by a detailed letter to the CSE expressing her disagreement with the manner in which the meeting was held, as well as the nature of the proposed services (Exs. M, N). She noted, among many other concerns, that the meeting had lasted approximately fifteen minutes and that she was told there was insufficient time to discuss her concerns at the meeting (see Ex. N-6 to N-7). Although she requested a new CSE meeting to address her concerns, the CSE did not convene again during that school year (Ex. GG-3 ¶ 8). The December 2016 IEP prescribed an ICT classroom with four weekly periods of SETSS, one weekly period of counseling and one weekly period of OT (Ex. L-8). The Student did poorly in eighth grade, and his final grades were an “F” in English and AIS (math), a “D” in social studies, and a “D+” in science (Exs. L, GG-3 ¶10).
In the spring of 2017, the Student’s had him privately evaluated by (Exs. U, GG-3 ¶ 11). ’s neuropsychological evaluation, dated June 22, 2017, made a number of significant findings. The Student’s full scale IQ was measured at 91 (average), with weaknesses in his verbal comprehension index (low average), working memory index (low average), and processing speed index (low average) (Ex. U-5 to U-6). Picture span and coding were his weakest sub-indices (Ex. U-5, U-6, U-9). In contrast to his largely intact cognitive abilities, the Student’s academic skills were severely delayed, particularly in decoding, word reading speed, reading fluency and reading comprehension, all of which were in the second to third grade range—or five to six grades below his grade level at the time (Ex. U-6 to U-7). These academic skills were at similar levels as they were at the time of his first neuropsychological evaluation over four years earlier in February 2013 (see Ex. Z-3). The Student also displayed significant deficits in writing skills (fourth to fifth grade equivalency) and math skills (second to fourth grade equivalency) (Ex. U-7 to U-8). Further tests confirmed weaknesses in language skills, phonological awareness, phonological memory and rapid symbolic naming, contrasted with superior skills in oral word fluency, all of which were consistent with the findings of the earlier neuropsychological evaluation (see Ex. U-10 to U-12 and compare to Ex. Z). found that the Student continued to meet diagnostic criteria for Specific Learning Disability with Impairments in Reading, Written Expression and Mathematics. She also diagnosed him with ADHD and unspecified depressive disorder (Ex. U-16). made a number of educational recommendations in her report, including a recommendation for “a non-public school educational setting particularly focused on remediation of refractory learning disabilities” and made specific recommendations regarding the need for a multisensory, evidence-based methodology as part of his educational program (U-16 to U-18).
The June 27, 2017 CSE reviewed ’s report and recommended a 15:1 special class with four weekly periods of direct SETSS (two in ELA and two in math), one weekly period of “indirect” SETSS in ELA, and one weekly counseling session, but removed OT from his program (Ex. S-10 to S-11). The stated rationale for the program recommendation is stated on the IEP as follows: “[the Student] was tried in an ICT class with SETSS, however, [the Student] needs more academic support throughout his school day. [the Student] will be attending High School in the upcoming school year and will be tried in a Special Class 15:1 with additional support through SETSS” (Ex. S-17). The record is silent as to whether he received any summer services in the summer of 2017. It also appears that his IEP was revised on July 11, 2017 (see Ex. W-4) but it is unclear as to what revisions were made.
On January 31, 2018, the CSE convened and continued the program recommendations of the June 27, 2017 CSE, changing only the indirect ELA SETSS session to a direct session, and adding two weekly 1:1 SLT sessions (Ex. W-15). That IEP held the Student to standard promotion criteria (Ex. W-21). It does not contain any specialized reading instruction or any evidence-based reading or math program. It does, however, state the following under “Parent Concerns”:
[The Parent] is very concerned about [the Student’s] ‘poor handwriting and difficulty to formulate an essay.’ She indicates that he has been placed in Special Education programs for many years but has made minimal progress. She thinks that he needs support in school as well as from a private tutoring agency with a proven methodology that will address his writing needs. ” (Ex. W-21).
As noted on the IEP, the only other educational programing options considered by the CSE were general education and an ICT class, both of which were rejected as insufficiently supportive for him. The Student failed several of his ninth grade classes (Ex. GG-4 ¶13, Ex. 1). He also attempted, but failed, the Regents exam in algebra (id.).
According to his mother, the Student was inappropriately placed in a summer school for the summer of 2018 with students with “severe behavioral problems and did not learn anything” and did not complete the program, but was promoted to the tenth grade. (Ex. GG-4 ¶13). Pursuant to the Student’s report card dated November 29, 2018, the most recent available as of the time of hearing, his grades were 55 in geometry and physical education, 60 in science, and 65 in English and history, with a weighted average of 62 (Ex. Y-1).
THE PARENT'S REQUEST
The Parent requests findings that the DOE deprived the Student of a FAPE for school year 2017-2018, impeded the Parent’s procedural and substantive rights under the IDEA, and deprived the Parent of her independent right that her son receive a FAPE (Ex. A). The Parent seeks an order requiring the DOE to develop an IEP that includes placement in a non-public school program, either at a New York State-approved school or, if none can be procured within a reasonable time, at a private school chosen by the Parent. The Parent is also requesting an Order that the DOE directly fund compensatory tutoring services at and, specifically, “at least” 500 hours of instruction in ’s “ ” and “ ” programs, as well as an additional 100-140 hours of math instruction in “ ” program, at ’s current rate which was, at the time of hearing, $142 per hour (Tr. 37-38; Exs. A-9, BB-1, CC-1-2, FF-3 ¶13). The Parent is also seeking an Order that the DOE fund at least 160 hours of compensatory occupational therapy (“OT”) services to make up for the DOE’s failure to provide OT during the 2016-2017 and 2017-2018 school years and 134 hours of 1:1 SLT services to make up for the DOE’s failure to provide SLT through February 15, 2018 (Ex. A-9; Tr. 38-39). Finally, the Parent is requesting a neuropsychological evaluation by and a neurological evaluation (Ex. A-9; Tr. 38-39.
The DOE conceded that it failed to provide the Student with a free appropriate public education (“FAPE”) for the last two school years and agreed that he “is struggling to make progress in his current setting and maybe require[s] additional support” (Tr. 30). However, the DOE also argued that the student’s “lack of motivation,” “consistent lateness,” attendance and homework completion issues were contributing to his school performance, and asked that any compensatory award take this into consideration along with the fact that the compensatory award from the previous impartial hearing was not fully utilized (Tr. 30-31). The DOE also argued that the Student is not eligible for OT services and that a neuropsychological evaluation is not necessary because one was conducted recently—presumably the one conducted by in June 2017 (Tr. 31-33; Ex. U).
ANALYSIS
This hearing was requested pursuant to, inter alia, the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. §1404 et. seq. (“IDEA”). The IDEA mandates that participating states such as New York provide disabled students with a free, appropriate public education (“FAPE”) that is tailored to meet the unique needs of the student and is reasonably calculated to enable a student to receive educational benefits. Board of Educ. v. Rowley, 458 U.S. 176 (1982).
To meet the IDEA's requirements, a school district must administer such uniquely tailored “special education and related services” according to an individualized education program (“IEP”) which school districts must implement each year for each student with a disability. M.H. v. N.Y.C. Dep’t of Educ., 685 F. 3d 217 (2nd Cir. 2012). The IEP is only considered substantively adequate when it is likely to produce progress, not regression, and provides the student with an opportunity greater than mere trivial advancement. Id. (quoting T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2d Cir. 2009).
The United States Supreme Court recently clarified the standard for evaluating the adequacy of an IEP: “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, ___ U.S. ___, 137 S.Ct. 988, 999 (2017). “The Act contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.” Id. “A focus on the particular child is at the core of the IDEA.” Id. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that are “‘specially designed’ to meet a child’s ‘unique needs 999’” and are reasonably calculated to enable the child to receive educational benefits. Endrew F., 137 S.Ct. at 999 (emphasis in original); M.H., supra, 685 F.3d at 224 (quoting Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007) (citing 20 U.S.C. § 1401(9)). “[C]rafting an appropriate program of education requires a prospective judgment by school officials.” Endrew F., 137 S.Ct. at 992. “The Act contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.” Id. at 999.
Procedural violations can also amount to a deprivation of FAPE if they (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. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); E.H. v. Bd. Of Educ., 361 Fed. Appx. 156 (2d Cir. 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F.Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd 2008 293 Fed. Appx. 20 (2d Cir., 2008).
The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). Where deprivation of FAPE is found, the IDEA allows a hearing officer to fashion a remedy that he or she finds appropriate under the circumstances, including but not limited to ordering a local educational agency (“LEA”) to comply with procedural safeguards; ordering the LEA to provide a specific placement, program, or service; and awarding compensatory education and additional services tailored to meet the unique circumstances of the case. 20 U.S.C. § 1415(f)(3)(E)(iii); 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5); see also P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); Burlington Sch. Committee v. Mass. Dept of Education, 471 U.S. 359 (1984).
Other than the appropriateness of a parental placement, if applicable, the DOE’s burden of proof and persuasion applies to every contested issue in the hearing, including the appropriateness of compensatory relief. [U]nder State law as set forth above, the burden of proof has been placed 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 (Educ. Law § 4404[1][c]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement. The parent requested that the district be directed to provide compensatory education services to the student and thus, it is the district, not the parent, which bore the burden of proof on the contested issues in the impartial hearing, including the extent to which the student requires compensatory education (see Application of a Student with a Disability, Appeal No. 14-197; see also M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4–5 [S.D.N.Y. Mar. 30, 2017] [upholding the SRO's decision in a review of Application of a Student with a Disability, Appeal No. 14-197]). Nonetheless, it behooves the parent to also provide evidence with respect to what would constitute an appropriate award of compensatory education in order to rebut or supplement the district's evidence with respect to that question in order to assist the fact finder in making his or her determination. Appeal No. 17-105 at 8-9 (SRO January 22, 2018). See also Appeal No. 19-026 at 13 (SRO May 9, 2019).
FAPE
The DOE declined to present a case to support the appropriateness of any of the CSE’s decisions at issue, and only submitted as evidence the student’s high school transcript and a partial resolution agreement addressing assistive technology and audiological evaluations, which the Parent agrees has been fulfilled. (Tr. 30; Exs. 1, 2). The DOE further agreed that the Student is struggling in his current setting and “maybe require[s] additional support.” (Tr. 30). Although the DOE sought to assign blame to the Student to some degree, it did not offer any evidence to support this argument. The record, moreover, establishes that the DOE has been on notice of the Student’s educational needs for a substantial period of time, and was even warned that failure to meet these need would not only result in the Student’s academic failure, but as the prior Impartial Hearing Officer noted, would cause him “to continue to very much to struggle to deal with the decoding and writing aspects, and the spelling and math aspects of the school program which is part of everything and needed for all aspects of the learning environment” (Ex. B-8 to B-9). She further found that the Student’s “specific learning needs need more than just accommodations, and without addressing his specific difficulties, he will further and further behind and get further and further frustrated” (Ex. B-9). In light of the DOE’s failure to address his specific learning needs via appropriate specially designed instruction, coupled with the failure to place him in an appropriately supportive learning environment, I find that no blame can be attributed to the Student due to his inability to function in the classroom, or his frustration or lack of motivation arising out of this inability, but that the blame rests squarely with the DOE. His difficulties in the classroom were entirely predictable, were in fact predicted, and yet for reasons that the DOE chose not to explain at hearing, the DOE failed to take the steps that would have given him the necessary tools for success, namely a supportive classroom setting and evidence-based instruction designed to help a student with dyslexia and dyscalculia learn (see, e.g., Exs. B, U, Z). At all relevant times, the DOE failed to appropriately consider the concerns of the experts who evaluated the Student, or the concerns of his who sought to engage the DOE’s attention and appropriate consideration of the Student’s needs at all relevant times. As a result of these failings, the Student made minimal to no educational progress and has struggled greatly to retain any motivation for attending school. He is also showing manifestations of depression, indicating that this situation has taken a serious emotional toll on him (see Exs. U-16; GG-4 ¶13).
I therefore find that the DOE failed to offer a FAPE to the Student during the 2016-2017 and 2017-2018 school years as alleged by the Parent, impeded the Student’s and the Parent’s substantive and procedural rights under the IDEA, and significantly impeded the Parent’s opportunity to participate in the provision of a FAPE to her son. The following will address each of the items of relief requested by the Parent.
COMPENSATORY SERVICES
It is well settled that compensatory education tailored to meet the unique circumstances of a case is an equitable remedy that may be awarded to a student with a disability who remains eligible for instruction under the IDEA. 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); Educ. Law §§ 3202(1), 4401(1), 4402(5); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. See Appeal No. 08-052, pp. 17-18 (SRO July 16, 2008); see also Student X. v. N.Y.C. 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). Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5); Bd. 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 remedial education services to a student upon the school district's failure to provide those educational services to L during home instruction). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has also been awarded to such students if there has been a denial of FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"); Student X. v. New York City Dep't of Educ., 07-CV-2316 (NGG) (RER). (E.D.N.Y. Oct. 30, 2008); R.C. v. Bd of Educ., 2008 LEXIS 113149, at *38-40 (S.D.N.Y. March 6, 2008)).
The compensatory analysis focuses on making the child educationally “whole .” G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 624 (3d Cir. 2015). In other words, a compensatory award should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123, holding that compensatory education awards should be designed so as to "appropriately address … the problems with the IEP”; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M ., 478 F.3d 307, 316 (6th Cir. 2007) ( holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"); Reid, 401 F.3d at 518 ( holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA")).
As noted above, the burden of proof is on the district for all issues except for a unilateral placement by a Parent, which is not applicable here, including the compensatory services. The DOE did not put forth any evidence in this regard and thus failed to meet its burden with respect to the student’s compensatory needs. The Parent, however, submitted testimonial and documentary evidence to support her requests. I find that the record was sufficiently developed to award the following items of compensatory relief:
A. Compensatory Tutoring at [redacted]
I find the Parent’s request for compensatory tutoring at is a remedy that is available under the law and supported by the record. To support her request for the tutoring program at , the Parent offered the testimony of , ’s Center Director, who testified on direct via affidavit (Ex. FF). She participated in the hearing by telephone and was crossexamined briefly by the DOE Representative. (Tr. 43-50). I find was a credible witness. The Parent also submitted a number of documents in further support of her request, including ’s credentials, summaries of the assessments conducted by and ’s recommendations, descriptions of the programs recommended for the Student at , and additional data further describing the instruction offered, student profiles, and general results achieved by students at (see Exs. AA-EE). The DOE offered no evidence to challenge
’s testimony or the accompanying documentary evidence.
Approximately 43% of ’s students are diagnosed with a learning disability, including multiple diagnoses, ADHD, dyslexia and other specific learning disabilities, and speech or language impairments (Ex. DD-7). has demonstrated positive results with these students in a number of areas including reading comprehension, math skills, decoding, symbol imagery, phonemic awareness, word attack, word recognition, spelling and vocabulary (Ex. DD-8 to DD-19).
In addition to the assessments of the Student conducted at , reviewed ’s neuropsychological evaluation (Ex. FF-2, FF-4 ¶¶9, 17). She testified that offers two main reading programs: “ ” and “ ,” as well as a math program called “ ” (Ex. FF-2 ¶5). “The program focuses on the mechanics of reading, which are the foundational skills for becoming a fluent reader. By developing a student’s phonemic awareness and symbol imagery, it addresses the foundational skills of decoding (or word attack, the ability to sound out words), word recognition (the ability to build a base of sight words), spelling, and reading fluency (the ability to read accurately at an appropriate rate)” (Ex. FF-3 ¶6). “The program focuses on reading comprehension and helps to develop concept imagery, vocabulary, oral and written language comprehension, language expression, the ability to follow directions, and critical thinking (Exhibit FF-2 ¶7). “The program focuses on developing math computation and problem solving skills” ((Exhibit FF-2 ¶8).
’s testing, which was consistent with all other data in the record regarding the Student, confirmed “significant weaknesses in his word attack skills, sight word reading skills, spelling, math computation, reading fluency and listening comprehension” (Exs. AA, FF-3 ¶10). “His word attack skills (which measure his ability to sound out phonetic pseudo-words) were at the late fifth grade level, and his ability to read sight words was at a mid-sixth grade level; however, the highest grade level word list he was able to read without mistakes was a third grade word list” (Id.). “His spelling skills were at a mid-fifth grade level, and his math computation skills were at an early fourth grade level (Id.). The Student’s “greatest area of weakness, by afar, was in reading fluency—which tested at approximately the mid-second grade level” and he displayed additional weakness in phonemic awareness (Ex. AA-3 to AA-4; Ex. FF-3 ¶¶10-11). initially recommended that the Student attend “at a frequency of four hours per day, five days per week, for 20-25 weeks to develop his language and literary skills in the and programs (400-500 hours), with a goal of having him achieve ninth grade reading comprehension and fluency (Exs. BB; FF-3 ¶13). The United States Department of Education has pronounced clarified that one of the objectives of the Individuals with Disabilities Education Act (“IDEA”) is to help most students with disabilities achieve grade-level academic proficiency. See United States Department of Education, Office of Special Education and Rehabilitative Services, “Dear Colleague ” Letter at 4-5 (November 16, 2015) (stating that all but “a very small number of children with the most significant cognitive disabilities” should be held to grade-level academic standards). revisited her recommendation closer to the hearing date, when he was in the tenth grade, after reviewing his then most-recent report card. (Exs. Y; FF-3 ¶13). She noted his ongoing struggles in all subjects and revised her recommendation to “the upper end of the originally recommended range, which would be 500 hours,” along with 100-140 hours of math instruction in the program to address his math weaknesses (Ex. AA-2; CC-2; FF-13 ¶13). also recommended that he be retested at every 10-12 weeks of instruction to assess his progress (Ex. FF-4 ¶See Parent’s Exhibit BB).
I find that accurately identifies the Student’s needs, as their findings were consistent with ’s evaluation, his most recent IEP and his most recent report card. I also find that was explicitly recommended in ’s report as a program that would appropriately address the Student’s special education needs (Ex. U-16). I further find that the Student’s cognitive abilities are such that, with the appropriate services and supports, as recommended multiple times by clinical experts, he could have attained grade level in his core academic subject areas. I therefore will order that the DOE fund at least 500 hours at for the Student in the and programs, along with another 140 hours in the Program. I will further direct to assess the Student after every 200 hours of instruction. Because this matter also continued through the end of the 2018-2019 school year, I further direct that, if, by the end of 600 hours of instruction at , the Student has not reached the projected goals of 10th grade level in each of the proposed targeted areas of instruction, and so long as the Student has attended on a consistent basis, the DOE shall fund up to an additional 200 hours at .
B. Compensatory Occupational Therapy
As to the Parent’s request for compensatory OT, I again find that remedy is available under the law and supported by the record. The Student’s post-FOFD IEP recommends two weekly individual OT sessions per week in a separate location and the Parent has never agreed to its reduction or elimination since. (Exs. C-10; GG-3 99 Moreover, the DOE OT Evaluation of Function and Participation dated May 5, 2017, which recommends termination of OT services from his IEP, states: “Consultation with the school-based OT revealed that [the Student] has not attended OT sessions for the past few years and was unresponsive when the therapist worked with him in the classroom.” (Ex. P-1). I further find that the DOE’s OT evaluation identified below average visual motor integration and motor coordination skills via the Beery Buktenica Test of Visual Motor Integration (Ex. P-3). His further noted ongoing issues with his poor handwriting and dysgraphia at the January 31, 2018 CSE meeting, (Ex. W-21), and his mother continues to express similar concerns (Ex. GG-3 ¶9). I find that the DOE did not establish that its decision to terminate OT services was appropriate. I further find that the Student did not receive OT even when it was mandated by the CSE, and the DOE failed to adequately explain why this was allowed to continue for such a long time. I am therefore awarding compensatory OT of 160 hours, per the Parent’s request, representing two hours per week, for two school years (2016-2017 and 2017-2018), in order to make up for the lack of this service during this time period.
C. Compensatory Speech-Language Therapy
As to the Parent’s request for compensatory SLT, I again find that remedy is available under the law and supported by the record. On November 8, 2017 the DOE conducted a Speech/Language Evaluation (Ex. T). The report found that ’s Core Language Score was below average (in the 9th percentile) with his greatest weaknesses in his Expressive Language Index (Ex. T-2). He also performed poorly in the Following Directions subtest (16th percentile/marginal), the Formulated Sentences subtest (9th percentile/low to very low); the Understanding Spoken Paragraphs subtest (5th percentile/low to very low); and the Sentence Assembly subtest (5th percentile/low to very low) (Ex. T-2 to T-5). His Language Content and Language Memory indices were also both in the below average range (Ex. T-3). He was also given a Dynamic Assessment, which involved him being presented with six sequence cards that depicted a story and asked to put them in order and answer questions about the story the Student was not able to correctly sequence the cards without prompting, and, although he was able to answer questions about the story, he used “very simple sentences and made some grammatical errors” and also “had difficulty making inferences about the story” (Ex. T-5 to T-6). The Student also struggled with a task requiring him to retell a story that had been read aloud to him, verbally and in writing; his verbal response omitted key details and his written response contained incorrect spelling, misspelled words, and poor punctuation (Ex. T-6 to T-7). Another writing task was poorly done, with simple and grammatically incorrect sentences, misspellings and other problems with his writing mechanics and organization (Ex. T-7).
The January 31, 2018 CSE recommended twice weekly 1:1 SLT, to begin on February 15 2018, which the Parent agrees is appropriate (Exs. A-8, W-15). She is seeking 134 hours of compensatory 1:1 SLT to make up for the DOE’s failure to provide any SLT during the 2016-2017 school year and during the portion of the 2017-2018 school year ending on February 15, 2018, when SLT was to have been implemented per his IEP (Ex. A-9, W-15). I find that the record supports this request. Evidence in the record clearly establishes that the expressive and receptive weaknesses which were identified in the November 2017 SLT evaluation existed at least as far back as the 2016-2017 school year, and perhaps even earlier. This is reflected in the December 15, 2015 IEP which describes below grade level and writing abilities (see Ex. D-2); the December 5, 2016 IEP which describes a lack of written work, and difficulty citing textual evidence and making inferences and connections in his reading (see Ex. L-1); and the June 27, 2017 IEP, which describes borderline reading comprehension and fluency; low average writing skills with numerous run-on sentences, spelling error and capitalization errors (see Ex. S-2). One of the Student’s eighth grade teachers further stated that the Student “does not comprehend what he is reading” and “makes little or no attempt at writing” (Exs. P-1; S-2 to S-3). Notably, the SLT goals in the Student’s January 31, 2018 IEP are designed to address these deficits (see Ex. W-12 targeting sentence length, organization, grammar, capitalization, punctuation, inferences and predictions, and identifying details from the text). I therefore find that the Student should have been receiving SLT to address each of these areas of weakness as of the 2016-2017 school year, and will direct the DOE to fund 134 hours of compensatory 1:1 SLT (or 2 hours per week) to make up for the lack of SLT services for the entire 2016-2017 school year (80 hours) and for the portion of the 2017-2018 school year ending on February 15, 2018 (54 hours).
NON-PUBLIC SCHOOL PLACEMENT
I also find that the record supports the Parent’s request for a non-public school setting that can provide the Student with the specially designed instruction he needs to address his various learning disabilities, and including his orthographic dyslexia and specific learning disabilities in reading, writing and math. Impartial Hearing Officers are "granted broad authority in their handling of the hearing process and to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA" (Warren Consolidated Schs., 106 LRP 70659 [LEA MI 2000]). As described above, this is the second time the Parent has sought to obtain an appropriate educational program for her son over the last six years. The neuropsychologist who testified in the prior hearing urged the IHO to consider placing the Student in a private-school program, however the IHO in the prior hearing gave the DOE the opportunity to provide an appropriate education for the Student, setting specific parameters designed to address his specific deficits (see Ex. B-9, B-18). It appears that the DOE only followed some of those parameters for a very short time, and attempted to do so in a large, ICT setting. The Parent requested a more supportive school setting multiple times. However, he remained in an ICT class until the fall of 2017, which he was moved to a 15:1 class. This was clearly, as the Parent testified, “too little too late .” (Ex. GG-4 ¶13). No improvements have been seen in his performance; instead, he has only fallen further and further behind with almost no academic progress over the last several years. (see Ex. GG-4 ¶13). expressly recommended placement in “a non-public school educational setting particularly focused on refractory learning disabilities . . . where he will be educated according to a multi-sensory evidence-based framework (e.g. Orton-Gillingham, Wilson Reading Program and Lindamood Learning Processes” (Ex. U-16). I find that ’s recommendation is both appropriate and urgent, and I will direct the DOE to promptly identify and procure such a placement and to promptly take whatever administrative steps are necessary to effectuate such placement (Ex. U-16).
ADDITIONAL EVALUATIONS
The DOE did not contest the Student’s need for a neuropsychological evaluation other to note that one had been conducted by in June 2017. (Tr. 32-33). That evaluation was privately obtained by the Student’s . (Ex. GG-3 ¶11; Tr. 32). An IHO is vested with the authority to direct that a student be evaluated at district expense (34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; [j][3][viii]). Since nearly two years have passed since ’s evaluation was conducted, a new neuropsychological evaluation is appropriate at this time and I will direct the DOE to fund such an evaluation by or, if she is not available, by a qualified provider chosen by the Parent.
The Parent also requested a neurological evaluation at hearing to examine why the Student frequently falls asleep in class. References that this is occurring—particularly while the Student is reading—can be found throughout the Student’s IEPs and evaluations. (Tr. 39; see, e.g., L-1, S-2. U-3, W-5). It would therefore be appropriate to determine if this has a neurological cause such that it represents a previously-unidentified disability. Accordingly, I find this is an area of suspected disability that should be assessed and will direct the DOE to conduct or fund a neurological evaluation of the Student for this purpose.
ORDER
In light of all of the foregoing findings and conclusions, including but not limited to my findings that the DOE failed to provide the Student with a FAPE for the 2016-2017 and 2017-2018 school years and deprived the Parent of her independent rights under the IDEA, I therefore order the DOE to:
1) Directly fund the Student’s attendance at located at , and specifically 500 hours in ’s “ ” and “ ” programs, plus 140 hours in ’s “ ” Program (collectively, the “Program”). I further direct to assess the Student after approximately every 200 hours of instruction in the Program. If, by the end of 600 hours of instruction, the Student has not reached the projected goals of 10th grade level in each of the proposed targeted areas of instruction, and so long as the Student has attended the Program on a consistent basis, the DOE shall fund up to an additional 200 hours of the Program as may be recommended in his 600-hour report from the Program. If is not able to service the Student for any reason, or of the Student’s residence makes it impractical to attend the Program at this location, the Parent is authorized to use a different location or may enroll the Student for any remaining hours in another program so long as it employs evidence-based methods such as Wilson or Orton-Gillingham. The hourly rate shall not exceed $150.00.
2) Directly fund 160 hours of 1:1 occupational therapy for the Student by a licensed occupational therapist chosen by the Parent.
3) Directly fund 134 hours of 1:1 speech-language therapy for the Student by a licensed speech language therapist chosen by the Parent.
4) Provide for appropriate transportation to and from each of the above-noted services ( , OT and SLT) for the Student, which may be in the form of Metrocards.
5) Directly fund a neuropsychological evaluation of the Student by or, if is unable to conduct this evaluation for any reason, I the Parent may choose another qualified Provider. The rate for this evaluation shall not exceed $5500.00.
6) Conduct or directly fund a neurological evaluation of the Student.
7) Pay for each of the above-noted services on a timely basis, not to exceed thirty days from the DOE’s receipt of invoices from the providers or, in the case of the evaluations, within 30 days of the receipt of the evaluations and provider invoices.
8) Promptly identify and procure a non-public school placement for the student that offers a program that is consistent with the “Class Placement” recommendations described in ’s June 22, 2017 neuropsychological evaluation of the student. The DOE shall promptly take whatever administrative steps are necessary to effectuate such placement, including convening a CSE and conducting additional evaluations, if necessary.
IT IS SO ORDERED
Dated: July 10, 2019
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
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
PARENT
| Exhibit | Description |
|---|---|
| A | Due Process Complaint Notice of Impartial Hearing Request, 5/23/18, 11 pages |
| B | Findings of Fact and Decision in Case Number 148316, 5/1/14, 21 pages |
| C | IEP, 5/13/14, 16 pages |
| D | IEP, 12/4/15, 151 pages |
| E | Educational Evaluation, 12/2/15, 3 pages |
| F | Letter to Parent from Occupational Therapist, 5/26/15, 1 page |
| G | Report Card, 5/7/16, 1 page |
| H | Final Grades for 2015/2016 School Year, unidentified date, 1 page |
| I | DOE Student Historical Profile Report, 5/26/16, 4 pages |
| J | Report Card, 10/26/16, 1 page |
| K | Authorization, 11/1/16, 1 page |
| L | IEP, 12/5/16, 14 pages |
| M | Letter from [redacted], 12/9/16, 1 page |
| N | Letter from [redacted], 12/14/16, 12 pages |
| O | Occupational Therapy Family Checklist, unidentified date, 2 pages |
| P | Occupational Therapy Evaluation, 5/17/17, 7 pages |
| Q | Psychiatric Evaluation, 6/7/17, 7 pages |
| R | Final Grades for the 2016/2017 School Year, unidentified date, 1 page |
| S | IEP, 6/27/17, 16 pages |
| T | Speech and Language Evaluation, 11/19/17, 8 pages |
| U | Neuropsychological Evaluation, 6/22/17, 18 pages |
| V | Report Card, 1/12/18, 1 page |
| W | IEP, 1/31/18, 23 pages |
| X | Email re Power of Attorney, 6/29/18, 1 page |
| Y | Report Card, 11/29/18, 1 page |
| Z | Neuropsychological Evaluation, 2/25/13, 16 pages |
| AA | [Redacted] Evaluation Summary, 11/14/17, 5 pages |
| BB | [Redacted] Recommendation Letter, unidentified date,[1] 1 page |
| CC | Updated [redacted] Recommendation Letter, 12/14/18,[2] 2 pages |
| DD | [Redacted] Results Booklet, unidentified date, 28 pages |
| EE | Resume of [redacted], unidentified date, 5 pages |
| FF | Affidavit of [redacted], 12/20/18, 5 pages |
| GG | Affidavit of [redacted], 12/20/18, 6 pages |
DEPARTMENT OF EDUCATION
| Exhibit | Description |
|---|---|
| 1 | Resolution Agreement, 6/13/18, 1 page |
| 2 | Student Transcript, 12/13/18, 1 page |
IMPARTIAL HEARING OFFICER
| Exhibit | Description |
|---|---|
| I | Signed Subpoena, 12/5/18, 1 pg. |
| II | Confirmation of Extension, 7/20/18, 1 pg. |
| III | Confirmation of Extension, 8/19/18, 1 pg. |
| IV | Confirmation of Extension, 9/17/18, 1 pg. |
| V | Confirmation of Extension, 10/12/18, 1 pg. |
| VI | Confirmation of Extension, 11/17/18, 1 pg. |
| VII | Confirmation of Extension, 12/17/18, 1 pg. |
| VIII | Confirmation of Extension, 1/16/19, 1 pg. |
| IX | Confirmation of Extension, 2/15/19, 1 pg. |
| X | Confirmation of Extension, 3/17/19, 1 pg. |
| XI | Confirmation of Extension, 4/16/19, 1 pg. |
| XII | Confirmation of Extension, 5/16/19, 1 pg. |
| XIII | Confirmation of Extension, 6/15/19, 1 pg. |
Footnotes
[1] Resolution Agreement, 6/13/18, 1 page
[2] Student Transcript, 12/13/18, 1 page IM PARTIAL HEARING OFFICER I. Signed Subpoena, 12/5/18, 1 pg. II. Confirmation of Extension, 7/20/18, 1 pg. III. Confirmation of Extension, 8/19/18, 1 pg. IV. Confirmation of Extension, 9/17/18, 1 pg. V. Confirmation of Extension, 10/12/18, 1 pg.