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FINDINGS OF FACT AND DECISION
Case Number: 179251
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Date of Hearing: November 12, 2019
Record Closed Date: February 1, 2020
Hearing Officer: Suzanne M. Carter, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
November 12, 2019
For the Student:
ESQ., Attorney
parent
Director (Via Telephone)
For the Department of Education:
District Representative
INTRODUCTION
On February 5, 2019 after another hearing officer recused, I was designated as impartial hearing officer for this matter pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415/(f), in the matter of the Student. On April 18, 2019, a prehearing conference was held. Impartial hearing took place on November 12, 2019 Department exhibits 1-8 and Parent exhibits A-R were admitted. The parties submitted closing briefs on December 16, 2019, respectively, as Exhibit 9 and Exhibit S. The record closed on January 21, 2020.
BACKGROUND
Parent alleges the New York City Department of Education (DOE) failed to provide with a free appropriate public education (FAPE) during the 2016-2017, 2017-2018, and 2018-2019 school years. Student is diagnosed with To remedy the Student’s deficits, the Parent now seeks compensatory education, compensatory services, independent educational evaluations, and deferral to the to locate an appropriate nonpublic school.
FINDINGS OF FACT
The Department Failed to Meet its Burden of Proof that it Provided a FAPE to the Student A school district may not argue that the “equities” are in its favor once it has failed to provide a free and appropriate education (FAPE) or concedes that it is has not. See N.R. v. Department of Education of the City of New York, 2009 U.S. Dist. LEXIS 27273, * 20-21 (S.D.N.Y. 2009). The Court held that the Department’s “abdication of its responsibility to provide. .. FAPE is so clear from the record -- and the law’s imposition of this duty on the [Department] is so well-settled -- that . . . the equities favor the parents.” /d. In the instant action, the Department did not present any witnesses and rested on documentary evidence. Therefore, it failed to provide a FAPE. The Department also failed to rebut Parent’s request for the desired relief.
Student is Entitled to Independent Evaluations
An appropriate evaluation represents the basis of an IEP. That is because "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, (2017). Pursuant to 34 CFR 300.502[d]; 8 NYCRR 200.5[g][2]; 8 NYCRR 200.5[j][3][viii], IHOs are vested with the authority to direct that a student be evaluated at district expense. “Furthermore, IHOs 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." See /n the Application of the Bd. of Educ., Appeal No. 12-033.
In the due process complaint, Parent requested the following independent evaluations:
occupational therapy, speech language, audiological, and assistive technology. The DOE failed to initiate an impartial hearing to establish that its evaluations were appropriate. See 34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]. Therefore, Parent is entitled to same.
Here, the DOE failed to conduct proper evaluations of or consider the private evaluations provided by the Parent. Specifically, the occupational therapy (OT) evaluation relied upon prior to the 2016-2017 school year to remove the OT mandate, did not contain any formal testing results. See Ex. A. Additionally, the CSE failed to consider the Parent’s private speech language evaluation as the CSE did not mandate the goals or feeding therapy recommended by the Speech therapist. Compare Ex. D and G. Moreover, the DOE failed to conduct its own SLT evaluation. See Ex. N-2.
Further, the DOE did not appropriately consider the private neuropsychological evaluation as the CSE did not adopt the recommendations from the report. Compare Ex. J and
M. The prior written notice does not list the Neuropsychological evaluation. See Ex. N-2.
Lastly, the Parent requested an assistive technology evaluation to address Student’s difficulty with . However, the CSE failed to provide the evaluation or address the Parent’s concerns. Most significantly, despite Student's , the DOE failed to conduct an FBA. See
Danielle G. v. New York City Department of Education, 50 IDELR 247 (E.D. NY. 2008) (finding a student's problematic behavior triggered a school district's duty to conduct an FBA).
Compensatory Education Is an Appropriate Remedy for a Denial of FAPE In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(i)(2)(C)(iii). The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted). Compensatory education is a prospective award of educational services designed to catch-up the student to where he should have been if a FAPE had not been denied. Brennan v. Reg Sch. Dist. No. 1 Bd. of Educ., 531 F. Sup. 2d 245, 265 (D. Conn.
2007). It requires a flexible approach to determine the services and amount of services needed for remediation. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). See also Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (preferring "a flexible approach, rather than a rote hour-by-hour compensation award to remediate the student). Academics
Student has Speech
Student’s teachers often noted they could not understand what the Student was saying. Tr. 35.
In turn, he could not understand teacher . Tr. 23-25. The Committee on Special Education (CSE) noted he demonstrated "
" Ex. G-3.
Because the CSE failed to mandate appropriate goals and failed to delivery appropriate SLT for, he failed to with regard to his
Occupational therapy
The CSE eliminated OT from the Student’s program despite his obvious
His writing was Tr. 34. Even the CSE documented his
Ex. G-4. A neuropsychological evaluation uncovered his
Ex. J-5. His performance was tasks.
Ex. J-6. Counseling
Due to inadequate until October 2018. Tr. 38; Ex. J.
Deferral to Central Based Support Team Is Appropriate
The remedial authority of administrative hearing officers in fashioning equitable relief is broad. Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 237 (2009). An administrative hearing officer may order a district to place a student in a non-public school where either the school has been approved by the Commissioner of Education or where the officer has made a finding that the school constitutes an appropriate placement for the student. SRO 14-077 at 8.
The CSE must recommend an appropriate program with related services and school placement for Student in the least restrictive setting. Should one not be found in a public school, the CSE must defer the case to the Central Based Support Team that locate and place students in New York State approved non-public schools. See 8 N.Y.C.R.R. § 200.6(j).
IT IS THEREFORE ORDERED THAT
1. The Department shall conduct an updated functional behavioral assessment.
2. The Department shall fund a. OT evaluation b. SLT evaluation c. Audiological evaluation d. AT evaluation
3. 523 hours of tutoring at prevailing rate
4. 80 hours of OT
5. 80 hours of ST
6. 80 hours of counseling f. The CSE shall reconvene no later than February 14, 2020 to develop an appropriate IEP and recommend an appropriate school within 30 days of the meeting.
8. Should the CSE fail to comply with paragraph, then it is to defer the Student’s case to the CBST for a nonpublic school placement.
Dated: February 1, 2020
/s/Suzanne M. Carter
Suzanne M. Carter, 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 RECORD
Due Process Complaint 10 11/05/2019
ONOARW—DNDN
Consent to Evaluate 1 09/17/2018
Social History 2 09/17/2018
Classroom Observation 2 09/27/2018
Occupational Therapy Evaluation 6 10/16/2018
Consent to Waive Three Year Reevaluation 1 04/25/2018
Prior Written Notice 5 04/23/2018
Grades 16/17 and 17/18 3 various
Closing brief 3 12/16/19
Exhibit Date Description # of pages
A 5.27.16 Occupational Therapy Clinical Guide
B 6.1.16 Individualized Education Program
C 6.1.16 | Amended Individualized Education Program
D 7.25.16 Language Evaluation
E [10].18.16 IEP Amendment
F 1.1.17 Speech Recommendation
G 4.28.17 Individualized Education Program
H 4.18.18 Individualized Education Program
I 6.25.18 2017-2018 Final Report Card
J 7.18.18 & Neuropsychological Evaluation Report
7.31.18
K 9.7.18 Records Request from L
M
N
10.4.18
10.17.18
10.26.18
Progress Report
Individualized Education Program
Prior Written Notice
— w
O
P
Q
Undated
11.20.18
10.30.19
Final Report Card
Affidavit
Evaluation o&n
Footnotes
[10] R 11.5.19 Request for Impartial Hearing S) 12/6/19 — Closing brief 19