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FINDINGS OF FACT AND DECISION
Case Number: 183627
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: September 19, 2019
October 25, 2019
December 4, 2019
February 10, 2020
March 25, 2020
Actual Record Closed Date: June 6, 2020
Hearing Officer: Judith Schneider, Esq.
APPEARANCES September 19, 2019 October 25, 2019 December 4, 2019 February 10, 2020
For the Parents:
Esq., Attorney (via telephone)
For the District:
District Representative
For the Parents:
Esq., Attorney (via telephone)
For the District:
District Representative
For the Parents:
Esq., Attorney (via telephone)
For the District:
District Representative
For the Parents:
Esq., Attorney
Mother
Ed. D, Founder and Director, (via telephone)
Intern
For the District:
District Representative
March 25, 2020 (REMOTELY)
For the Parents:
Esq., Attorney
speech Language Pathologist, Owner/Pres.
For the District:
District Representative
On September 19, 2019, October 25, 2019, December 4, 2019, February 10, 2020 and March 25, 2020, I conducted an Impartial Hearing at the New York City Department of Education (““DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student’).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated June 21, 2019. (Ex. A) I was appointed Impartial Hearing Officer on June 24, 2019 and was available to conduct a hearing within 14 days of appointment. At a prehearing conference scheduled for August 2, 2019, and rescheduled to and held on August 7, 2019 at the request of the parent, I was informed that the district was investigating this matter with regard to the possibility of settling. (IHO Ex. /). Subsequently, although the parties had reached agreement with regard to certain issues, I was informed that disputed issues remained. Evidentiary hearings were conducted on February 10, 2020 and March 25, 2020. (Ex. 2)
The parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T 41, 156, 162, 220, Ex. /)
The current compliance date is June 27, 2020 The record closed on June 6, 2020 upon my receipt of the corrected district disclosure list. Positions of the Parties
In the hearing request the parent alleged that the district failed to provide a FAPE for the 2017-2018 and 2018-2019 school years. The parent requested as relief Independent Educational Evaluations (“IEEs”) for speech and language therapy (“SLT”) and occupational therapy (“OT”) and compensatory 1:1 tutoring, speech-language therapy(“SLT’’) and occupational therapy (“OT”) and a change in IEP to include an NPS placement. Certain issues were resolved and at this time the parent seeks: 700 hours of 1:1 tutoring from using the Orton-Gillingham method at $125 per hour; 252 hours of SLT and 100 hours of OT from (“ ”) at $250 per hour; and an IEP reconvene to defer the student’s case to the CBST for placement in a non-public school.[1] ! (Exs. A, J, 2).
The district does not contest the parent’s claim that it failed to provide a FAPE for the 2 school years specified and does not dispute the student’s entitlement to compensatory tutoring, SLT and OT services. However, the district asserts that 700 hours of 1:1 tutoring is excessive in the circumstances here and asserts that 300-400 hours would be more appropriate. With regard to SLT and OT, the district asserts that the rate requested is excessive and that the rate should be limited to the DOE’s authorized rate for the provision of those services. Further, the district asserts that provision of 72 hours of compensatory OT, not 100 hours, would be reasonable in the circumstances here.
Cases Presented
Both parties submitted documents for admission into evidence. (A list of documents in the record is appended.) The DOE presented no witnesses. The parent presented the testimony of: Dr. , founder and director of ; , owner and president of : the student’s mother (“the parent’’).
Findings of Fact and Conclusions of Law
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir.
2008) “...[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027. In this matter the district has not contested a denial of FAPE for 2 school years. Further the district has not contested the student’s entitlement to compensatory academic, SLT and OT services. Rather, it challenges the number of hours/sessions requested by the parent and/or the requested rate. | With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. It is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014.
The district’s dispute is solely with the number of hours and/or the rate requested. It has not asserted that compensatory services should be limited based upon equitable considerations. (Ex. ///) Further, I find no support in the record for that claim. Rather the evidence shows that the parent cooperated with the CSE including by attending reviews and providing relevant evaluative material and raising her concerns frequently. There is no basis here for limitation of compensatory services on equitable grounds. (T127-128, 144-145, ,Exs. 23, B, C, D, 132) a) Compensatory Academic Services The student has been diagnosed with: Autism Spectrum Disorder, with accompanying language impairment; Specific learning Disorder, with impairment in written expression; Specific Learning Disorder, with impairment in reading. (Ex. E) The student’s overall cognitive functioning falls well with the Average range despite some variability in performance. (Ex. E) The evidence shows that Dr. reviewed prior evaluative material and conducted tests, including standardized instruments, to determine the student’s academic levels in spring 2019. (Ex. L, T9, 105) Her results were not significantly inconsistent with existing and subsequent testing and showed the student (then about to enter 5" grade) at 1°-2"4 grade levels in many areas and with certain deficits in all. (T92-93, Exs. E, 20, S, E, G,T) She concluded, based upon extensive experience in providing special education services that the student required 700 hours of 1:1 multi-sensory tutoring, including instruction utilizing Orton-Gillingham (“OG”’) techniques to attain grade level skills. (Exs. 14, M, T88-90, 94, 109) I note that the Neuropsychological Evaluation conducted in April 2014 specifies the need for multisensory techniques and special help in the development of specific academic skills. (Ex. E) The evidence supports a conclusion that the services requested would provide this.
No evidence was presented by the district to rebut Dr. ’s testimony as to student needs at the time of her review. Further, I conclude that subsequent testing/evaluations do not indicate progress that would significantly reduce needs as stated by Dr. . (Exs. D, E, G, T, 20) I conclude that the district’s proposal of 300-400 compensatory hours was merely speculative. I find that credible evidence that the remedy sought by the district is warranted has not been presented.
Although the district has not specifically contested the $125 per hour rate charged by , [note with regard to that issue that provides significant beneficial services in addition to the direct 1:1 tutoring and that the testimony that the rate was not in excess of comparable rates was not contested or rebutted. (T98, 103-105) The parent’s request is granted.
b) Compensatory OT and SLT Services
The parent seeks 252 hours of SLT and 100 hours of OT at $250 per hour as compensatory services. The district has not contested the number of SLT hours requested. However it proposes that 72 hours of OT is appropriate and that that is the equivalent of 2 years of the mandated services (2x30 per week) for the period of alleged FAPE deprivation.
No evidence supporting the requested 100 OT hours based upon need or make-up has been presented. Further, review of the OT evaluation shows that the student did not have deficits in all areas and that in those areas in which he did have difficulty it did not significantly impede function. (Ex. 18) I conclude that 72 hours of OT compensatory services 1S appropriate compensation. “...[C]ompensatory education is an equitable
4
remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.
The district contests the rate of $250 per hour for the services. Ms. testified concerning her understanding of the rates customarily charged in this geographic area and that testimony was not contested by the DOE and was not rebutted. Further, although the DOE objects to the uses to which “overhead” charges which exceed the specific payments made to the actual provider, I conclude that the services are appropriate and the district has presented no evidence that they are not customarily provided in connection with the delivery of those services. (T207-208, 211) The district proposes that reimbursement be limited to the DOE’s authorized rate for the SLT and OT services. There is no evidence in the record to support a conclusion that training in excess of that of appropriately credentialed providers of those services is required for this student. In that circumstance the district is given an opportunity to identify available providers who will provide the services. If such cannot be located within the designated time, services as requested by the parent are required.
ORDER
1) The DOE shall immediately issue authorizations for 700 hours of 1:1 tutoring to be provided by at the rate of $125 per hour. The services must be provided by appropriately credentialed providers who have experience in working with student with Autism. shall assess the student biannually and transmit copies of the results of those assessments to the CSE.
2) The DOE shall immediately issue authorizations for 252 hours of Speech-Language Therapy and 72 hours of Occupational Therapy from appropriately credentialed providers. If the district does not notify the parent in writing with 2 weeks of the issuance of this order of the identity of providers available to provide the services at the authorized rate, authorizations permitting up to $250 per hour shall be issued by the district. Further, in the event that providers are identified by the district and become unavailable before all services to which the student is entitled are provided, the district must identify providers within 2 weeks of receipt of written notification or issue authorizations permitting payment of up to $250 per hour.
3) In consideration of the current pandemic and resulting limitations concerning commencement and continuous delivery of services, all services provided herein may be utilized at the sole option of the parent within 5 years from the date of issuance of this order.
Dated: June 22, 2010
JUDITH SCHNEIDER, 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.
EXHIBITS
1. District WITHDRAWN DOE
2. Partial Resolution Agreement, 7/18. 2019, 2 pgs. DOE
3. Due Process Response. 2/3/2020, 3 pgs. DOE
4. WITHDRAWN DOE
5. Progress Report OT/PT, 3/27/18, 2 pgs. DOE
6. Progress Report- Counseling, 6/13/18, 2 pgs. DOE
7 WITHRAWN
8 Request for Reevaluation, 11/20/18, 1 pg.
9 Progress Report- Teacher, 1/28/19, 4 pgs.
10 WITHDRAWN
11 Progress Report OT/PT, 6/17,19, 1 pg.
12 WITHDRAWN
13 Request for Reevaluation/Horizon, 6/1719, 1 pg.
14 WITHDRAWN
15 WITHDRAWN
16 Waiver to IEP Meeting to Amend IEP, 9/16/19, 1 pg.
17 Progress Report Teacher, 9/18/19, 2 pgs.
18 DOE OT Evaluation & Parent Checklist, 9/20/19, 2 pgs.
19 AT Evaluation Referral, 10/7/19, 6 pgs.
20 IEP, 10/16/19, 2 pgs.
21 Progress Report OT/PT, 10/30/19, 22 pgs.
22 Amended IEP 1/27/20 (Amend. of Ex. 20 10/16/19), 20 pgs.
23 SESIS Logs, 2017-2020, 11 pgs.
Parent A Impartial Hearing Request, 6/21/19, 9 pgs.
B IEP, 6/23/17, 29 pgs.
C IEP, 6/20/19, 20 pgs.
IEP, 6/17/19, 20 pgs.
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Neuropsychological Report, Drs. and , 4/16/19, 22 pgs.
WITHDRAWN
DOE Report Card, 3/26/19, 2 pgs.
DOE Math Assessment Scores, | pg.
— DOE Math Work Samples, 4 pgs.
SL Evaluation, , 9/3/19, 4 pgs.
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WITHDRAWN
Letter and Evaluation of Dr. , 6/26/19, 5 pgs.
Resume of Dr. , 2 pgs.
Resume of , 2 pgs.
Resume of , 2 pgs.
DOE CSE Meeting Notice (3/4/20, 2 pgs.
DOE AT Evaluation, 2/3/20, 6 pgs.
IEP Progress Report )2020), 6 pgs.
Interim Reading Assessment (January 2020), 1 pg.
DOE Report Card, 3/3/20, 2 pgs.
DOE OT Student Progress Report, 3/11/20. 2 pgs.
DOE Counseling Student Progress Report (3/5/20), 2 pgs.
DOE Speech/Language Student Progress Report, 3/5/20, 2 pgs.
Impartial Hearing Officer vi PHC Memorandum
IT Parent Closing
IIT District Closing
Footnotes
[1] 'T do not consider herein the parent’s request for a reconvene for an NPS placement and note the following: At the hearing the parent did not raise this issue in opening statements, both parties specified that the sole issue for my determination was compensatory services and this issue was not addressed during the hearing by either party. A change in placement is not a compensatory service. Further, the Partial Resolution agreement included agreement to conduct a reconvene to discuss a placement. (T45-46, 56-66, 74, Ex. 2) Although unnecessary in view of the foregoing I also note that it appears that the evidence in the record is not adequate to support a conclusion that the DOE’s Horizon program, a program for students with Autism, specifically recommended in the Neuropsychological Evaluation, which the student entered in late December was not appropriate and that the student regressed. (Ex. E, 51)