New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 190493

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearings: November 19, 2019

February 26, 2020

Record Close Date: June 3, 2020

NAMES AND TITLES OF PERSONS WHO APPEARED NOVEMBER 19, 2019

Advocate — Student

District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED FEBRUARY 26, 2020

Advocate — Student

SETSS Provider — Student

District Representative — DOE

Introduction: — DOE

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by N.H., the Parent (“Parent”) on behalf of , the student (“Student”), through her advocate, from by filing a Due Process Complaint dated October 29, 2019 with the District. P-A. I was appointed on November 1, 2019.

The Parent maintains that as a matter of law, her daughter is entitled to an appropriate special education according to both the IDEA and Section 504 of the Rehabilitation Act and Article 89 of the New York Education Law. The Parent is alleging that her daughter, was denied service under New York State Education Law Section 3602-c for the 2019-20 school year and is seeking ten hours of SETSS, 1:1, direct service and two hours of indirect SETSS. The Parent is also seeking an independent Neuropsychological Evaluation at the District’s expense and compensatory services.

There were two days of hearing in this matter. Hearings were held on November 19, 2019 and February 26, 2020. Extensions were granted in this case making the final compliance date June 7, 2020.^[1] A list of Exhibits is attached as Exhibit A. The Parent and District submitted exhibits. P-A—P-C; D-1—D-5.

Background

This case involves a student. During the 2019-20 school year, attended where the Student was unilaterally placed by her Parent.

The last Individualized Education Service Program (“IESP”) that was developed for this Student is dated September 9, 2015 (P-B) and provided for the following:

2. Speech-Language Therapy, group service, one time per week for 30 minutes each time;

3. Speech-Language Therapy, 1:1, two times per week for 30 minutes each time; and

4. Counseling Services, group service, one time per week for 30 minutes each time.

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly, the requests for extension of the case compliance were granted. Position of the Parties

Parent’s Case

The Parent called one witness, and place three documents in evidence. PA—P-C. She is a certified special education teacher for birth through grades 1 through grade 6 with a Master’s degree in special education.

She is familiar with the Student. Tr. 38. She is ’s SETSS provider and has been for five years. Tr. 40. This is her first year working through an agency; in the past she has been an independent provider. Tr. 40. She stated that she provides SETSS outside the classroom so that when she goes back into the classroom she can function on grade level or close to grade level. Tr. 40. She sees at her school, . The provider goes into the classroom when the teacher raises issues that require her to adjust her goals and plan. Tr. 41. She provides seven hours of instruction a week, two hours on Tuesday, Wednesday and Thursday, and one hour on Friday. Tr. 42. Cognitively, she has poor memory, poor vocabulary and her expressive language is significantly delayed. Tr. 42. In terms of math, her memory affects her ability to perform and she needs to be reminded of the rules all over again when she does a worksheet. Tr.

42. She also has very poor visualization skills which also makes it more difficult to recall information. Tr. 47. For reading she is on a second grade level and in math she is on an early third grade level. Tr. 44. She testified that she has not done any formal assessments for Tr. 44.

When started working with five years ago she had selective mutism and would not speak at school to her teachers or peers. Tr. 44. She is still quiet but now picks and chooses who she will speak to. She speaks to her friends but rarely to teachers. She will not ask a question or answer a question. Tr. 45. This impedes her learning. Tr. 45. She is receiving counseling and has made progress but the issue is still there. Tr. 45. She used to help her with this when she received SETSS in a group setting, however, due to her academic issues, she needs to be seen one-on-one. Tr. 46. makes her speak and uses social thinking with her which has helped her a lot. Tr. 46.

testified that the Student receives seven hours of SETSS and she needs ten because the gap between her and her peers has grown significantly and she needs more hours to close the gap. Tr. 54. She is presently more than a grade and a half below her peers. Tr. 54. She cannot use the IESP developed by the CSE because it is four and a half years old. Tr. 54. She created goals at the beginning of the year and revises them every three months. Tr. 54. She develops goals with a little help from the teacher and supervisor, but would get more help if she had hours with them. Tr. 55. She speaks to the teacher once every two or three weeks depending on their availability. Tr. 57. She said it is difficult because they both work fulltime. Tr. 57. She stated that her supervisor comes around and observes her sessions and “puts in some tidbits” but she doesn’t have time to actually go through the goals. Tr. 57. She feels if she had more time to meet with the providers and teachers, the instruction would be more effective. Tr.

52. She believes two hours a week of indirect services is necessary. Tr. 53.

She stated that she joined an agency to get help and is part of the agency for four of her students. Tr. 62. The agency gives her a supervisor and takes care of the technical issues like trying to get the student the hours they need. Tr. 63. She stated that she tells the agency the details about the student and they go back to the District and act as a go-between. Tr. 63. She stated that every time the District asked for progress reports she provided them. Tr. 65.

has made progress in reading this year specifically in reading comprehension. Tr.

68. At the beginning of the year she could not recall information, the setting, the characters, etc. Tr. 69. Now she is able to summarize the information and answer W-H questions. Tr. 69. In math, she has also made progress and is able to master the entire multiplication table up to 12 and is working on division and fractions. Tr. 69. In reading she started at a lower second grade level and is now on an upper second grade level and in math she started on a lower third grade level and is still on that level but has acquired more skills. Tr. 70. uses Math Made Easy and once she masters a skill, they move on to the next skill. Tr. 71. goes to school six days and receives services four days. Tr. 72.

stated that they don’t use a standard curriculum in the classroom, however, is not up to par and cannot complete the classroom tasks. Tr. 76. She thinks the Student requires three additional hours so that she can be given the skills and tools she needs to function on a fourth grade level. Tr. 80. She sees her during secular and religious studies. Tr. 81.

District’s Case

The District did not call any witnesses and placed five documents in evidence. D-1—D5.

Findings

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a],[b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a],[c], 300.138[b]).

However, under State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational “services” for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]).^[2] “Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Educ. Law § 3602-c[2][a]. In such circumstances, the district of location’s CSE must review the request for services and “develop and [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]” (Educ. Law § 3602-c[2][b][1]). The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district” (id.).^[3] Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404 (id.). See Application of the Board Of Educ., Appeal No. 18-088.

In the instant matter, under State law, there is no evidence indicating that an IESP was developed for the 2019-20 school year. In fact, the District stated that there has not been an IEP/IESP for this Student for several years. Tr. 31. The last IESP that was developed was developed September 5, 2015 and provided for the following:

1. SETSS, seven times per week for one period each time, group service;

2. Speech-Language Therapy, group service, one time per week for 30 minutes each time;

3. Speech-Language Therapy, 1:1, two times per week for 30 minutes each time; and

4. Counseling Services, group service, one time per week for 30 minutes each time.

P-B.

A pendency order was issued in this matter and Student’s pendency placement lies in the September 9, 2015 IESP.

Both parties are in agreement that an IESP has not been done bye the District for the last several years and the District has not conducted any evaluations including triennial evaluations. Tr. 31. In this regard, the parties have agreed that in terms of a Neuropsychological Evaluation, the Parent shall have two weeks from the date this Order to try and locate a provider that would take the rate of $2,500, as offered by the District, and if they are unable to find a provider at that rate, then the Parent can use an appropriate provider at the current market rate. The Neuropsychological Evaluation shall be completed within 60 days of this Order. The parties also agreed that since the Parent is not disputing the amount of services provided by the District for Speech-Language Therapy and Counseling, those evaluations shall be conducted by the District within 60 days of the date of this Order, as well. The District shall also conduct any other evaluations they deem necessary to assess the special needs of this Student and the District shall fund said evaluations. All evaluations reports shall be completed and provided to the Parent and/or District within that 60 day time period. In addition, the District shall do a classroom observation of this Student during that time period.4 Within ten days of completion of the evaluation reports, the CSE shall convene to review the findings and make recommendations for a special education program/services for this child. The CSE should consider whether this Student requires an increase in SETSS services and/or other additional services or program recommendations to address the Student’s needs. Since the Student is attending a private school, the Parent has requested that the CSE develop an IESP at that time. Pending the completion of the evaluations and CSE review as set forth in this Order, the Student shall continue to receive the services she is receiving under pendency, until completion of the 2019-20 school year, which includes SETSS, seven times per week, one period each time, group service; Speech-Language Therapy, one time per week, 30 minutes each time, group service; Speech-Language Therapy, two times per week, 30 minutes each time; and Counseling, group services, one time per week, 30 minutes each time.

Compensatory Education Services

With respect to Parent’s request for compensatory education services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation 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 ti me (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). Compensatory education relief may also 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]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 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., 2008 WL 4890440, at *24 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs 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 (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO 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 the Dep't of Educ., Appeal No. 13-236 [upholding an additional

This is subject, however, to the Covid restrictions in place at the time. service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services 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. 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, 525 [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"]; Puyallup, 31 F.3d at 1497 ["There is no obligation to provide a day-for day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Where there has been a violation of FAPE, hearing officers have broad authority to grant such relief as they deem appropriate, including compensatory education. 20 U.S.C. 1412 (a)(1), 1415(i)(2)(C)(iii), 34 C.F.R. 300.51 (c)(5); P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). A hearing officer should thus award compensatory education in the form of education or services where such an award is necessary to make up for a FAPE deprivation. P., 546 F. 3d at 123 (citation omitted). In evaluating a claim for compensatory education, a hearing officer must engage in a fact-specific inquiry to fashion an award that is “reasonably calculated to provide educational benefits that likely would have accrued from…services the school district should have supplied in the first place.” Reid . v. Dist. Of Columbia, 401 F.3d 516, 524 (D.C. Cir 2005).

Based upon my review of the testimony and documentary evidence, it is clear that the Student did not receive an appropriate special education according to the IDEA, Section 504 of the Rehabilitation Act and Article 89 of the New York State Education Law. An IESP was clearly not developed for the Student for the 2019-20 school year and both parties agree that there has been no IESP for the past several years. The Student is receiving her pendency services and has received the same program through pendency for the last several years.

, her SETSS provider has testified that no formal assessments have been done for the Student, however, she has indicated that the Student was on a second grade level in reading and an early third grade level in math at the beginning of the year (Tr. 44), and is presently on an upper second grade level in reading and is still on the same level in math but has acquired more skills. Based on the foregoing, the provider feels that the Student has made progress in reading and math. Tr. 68-70. She is seeing her individually which she feels is crucial for her learning and social issues. Tr. 46. She is not seen in the classroom because feels it would be detrimental to her self-esteem. Tr. 48. feels that the Student needs ten hours of SETSS instead of seven because the gap has grown significantly and she needs more hours to close the gap as she is presently more than a grade and a half below her peers. Tr. 54. She also stated that her classroom teacher does not use a standard curriculum and that the provider does not follow what is being done in the classroom because she believes the Student is not able to complete the classroom tasks. Tr. 76. She also stated that she needs two indirect hours to meet with her supervisor since they are both working fulltime. She creates goals with her teacher and supervisor, however, believes she would get more help if she had more hours with them. Tr. 5455.

Compensatory relief is granted to place a student in the position they would have been in but for the violation of the act. It is a “replacement of educational services that the Student should have received in the first place.” It is true that the child did not have an updated IESP, however, the Student was receiving seven hours of SETSS as well as related services of SpeechLanguage Therapy and Counseling as a result of pendency and there is no evaluative data to support the need for compensatory services. The Student has been making rogress according to her SETSS provider. I believe the Student needs to be evaluated to determine what her present issues are and what her special education program should be going forward. There is no specific evaluative data or evidence, however, that would point to the proposition that additional hours should have been provided for the past several years as a result of the District’s failure to provide FAPE. For any years prior to the 2019-20 school year, no documentary evidence or testimony whatsoever was presented. For the 2019-20 school year, the Parent has not shown that compensatory services are warranted in this circumstance. The Student was, in fact, receiving special education services this year. In the Provider Report dated December 26, 2019 (P-C), there is no mention of the need for additional services. The report simply states that “[ ] should continue to receive all of her SETSS services in a one-to-one setting.” ’s position is that she sees the progress is making with four days a week of service and believes she can make more progress if she has the services on the other two days. Tr. 73. The need for additional services, whether direct or indirect, going forward, must be addressed once the evaluations are completed and the CSE convenes.

Based on the Parent’s actions, I find that the Parent cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

Accordingly, under State law, the Student is afforded the same protections as a public school student on an equitable basis, therefore, I find the District failed to develop an IESP for the 2019-20 school year, and, accordingly is not in compliance under State law for said year.

ORDER

Based upon the foregoing, it is hereby

ORDERED, that

1. The Parent shall have two weeks from the date of this Order to locate an appropriate provider to conduct a Neuropsychological Evaluation at the rate of $2500. If the Parent is not able to find an appropriate provider within that time period at that rate, the Parent has the right to locate an appropriate provider at the current market rate to conduct a Neuropsychological Evaluation and the District shall fund said evaluation.

2. The District shall conduct a Speech and Language evaluation and any other evaluations necessary to assess the special education needs of this Student. The District shall also conduct a classroom observation.

3. All evaluation reports shall be completed and provided to the Parent and/or District within 60 days of the date of this Order.

4. Within ten days of the completion of the evaluation reports set forth in paragraphs

1 and 3 of this Order, the CSE shall convene to review the findings, develop goals, and make recommendations for a special education program/services for this Student.

5. Pending completion of the evaluations and CSE review set forth in this Order, until the end of the 2019-20 school year, the Student shall continue to receive the services she is receiving under pendency which includes SETSS, seven times per week for one period each time, group service; Speech-Language Therapy, one time per week for 30 minutes each time, group service; Speech-Language Therapy, two times per week for 30 minutes each time, 1:1; and Counseling Services, one time per week for 30 minutes each time, group service. Dated: June 4, 2020

EliseKestenbaum

Elise B. Kestenbaum, Esq.

Impartial Hearing Officer

Appendix A

Evidence

District’s Exhibits

No. Date Document Pages

1 10/29/2019 Due Process Complaint ^[5]

2 9/3/2015 Authorization for Independent SETSS Provider 2 3 8/31/2017 Authorization for Independent SETSS Provider 2 4 9/6/2018 Authorization for Independent SETSS Provider 2

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education 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 either party plans to appeal the decision, a notice of intention to seek review shall be served upon the opposing party no later than 25 days from the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally serviced upon opposing party within 40 days from the date of decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of 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 and model forms are available at: www.sro.nysed.gov/appeals.htm.

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Footnotes

[1] Special Education Teacher Support Services (SETSS), seven times per week for one period each time, group service;

[2] State law provides that “services” includes “education for students with disabilities,” which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in [Education Law § 4401(1)] (Educ. Law § 3602-c[1][a],[d]).

[3] State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as comparted to other students with disabilities attending public or nonpublic schools located within the school district’ (“Chapter 378 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c,” Attachment 1 at p. 11, VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialized/publications/policy/nonpublic907.pdf). The guidance document further provides that “parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to is public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program” (id.).

[5] 1/19/2018 Authorization for Independent SETSS Provider 2 Parent’s Exhibits No. Date Document Pages A 10/29/2019 Due Process Complaint 5 B 9/9/2018 Individualized Education Services Program 8 C 2/26/2020 Progress Report 4 Impartial Hearing Officer’s Exhibits No. Date Document Pages No Exhibits were provided by the IHO.