Impartial Hearing Decision

DECISION ORDER Case Number: 190731 Student’s Name: Redacted Hearing Requested By: Parent Hearing Officer: Martin J. Kehoe Til, Esq.

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (THO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent as Parent and the student will be referred to as Student. A hearing was held on January 22, 2020; April 23, 2020; and May 21, 2020. I issued an Interim Order on March 6, 2020 directing 6 hours of tutoring services to be provided by a Private Agency. Parent’s Position In the complaint notice, dated November 7, 2019, the Parent alleged that the District failed to provide a Free and Appropriate Public Education (FAPE) for the 2017-2018; 2018-2019; 2019- 2020 school years. The Parent is seeking convene of the Committee on Special Education (CSE) to develop an appropriate program and placement and consider a deferral to the central based support team (CBST) for a state approved non-public school. Reimbursement for the Parents for the cost of an ABA evaluation by a Board Certified Behavioral Analyst (BCBA); 500 hours of compensatory tutoring services at an enhanced rate; 500 hours of compensatory ABA at an enhanced rate; and 100 hours of counseling and speech/language therapy at an enhanced rate. On April 23, 2020 the parties reported that most of the claims in the complaint notice were withdrawn leaving only the compensatory tutoring and related services in counseling and speech/language therapy (tr. 34 et seq.). Subsequently via e-mail, Parents’ counsel announced that the parties resolved all claims that would be within my jurisdiction but compensatory tutoring. (See, e-mail dated May 20, 2020. Ex. IHO #1).

District’s Position The District submitted documentary evidence but did not call any witnesses to defend its program. Ultimately, the District was not opposed to paying for 500 hours of tutoring by the Private (T. 61). Student History The Student was diagnosed with autism spectrum disorder with accompanying language impairment, with accompanying intellectual impairment, associated with another neurodevelopmental mental or behavioral disorder; Attention Deficit Hyperactivity Disorder (ADHD), unspecified; mild neurocognitive disorder due to another medical condition; sickle-cell trait (inconclusive research), intellectual developmental disorder, mild; adjustment disorder with mixed disturbance of emotions and conduct (Ex. G). In an evaluation by the Private learning center in January 2020, the Student tested a mid-third grade level for spelling; a mid-third grade level for math; at a low-third grade level for word reading; at a second grade level for reading comprehension; at a mid-third grade level for written language (Ex. J). Background of the Case The following is a summary of the Student’s program for the school years at issue:

On the Individualized Education Program (IEP) dated January 26, 2017 the Student was assigned a disability classification of other health impairment. The District recommended placement in a 12:1:1 special class in a community school; 1:1 counseling 1x30; 1:1 occupational therapy 4x30; group speech/language therapy 2x30; and adapted physical education (Ex. A). The IEP dated January 24, 2018 continued with the same classification and placement and recommended Ii] counseling 1x30 and group speech/language therapy 2x30. Little progress was made towardthe Student’s goals (Ex. B). On the [EP dated January 15, 2019 the Student’s disability classification was changed to intellectual disability. The IEP recommended a 12:1:1 special class in a district special school with related services of 1:1 counseling 1x30 and group speech/language therapy 2x30. It also recommended adapted physical therapy 3 times per week. The IEP noted that the Student made, “very limited” progress. The IEP dated June 26, 2019 changed the Student’s disability classification to autism. The Parent sent a letter to the CSE, dated April 16, 2019, requesting an IEP meeting with a deferral to the CBST for immediate placement in a state approved non-public school (Ex. F). The Parent was seeking a 6:1:1 special class in a district special school; 1:1 counseling 1x30; group counseling 1x30; speech/language therapy in a group 2x30 and monthly parent counseling and training for 30 minutes. The then current IEP showed that the Student was functioning on a first-grade level in reading and math (Ex. H). The Student began tutoring through the Interim Order and participated in 3 sessions in March (T. 46). The Director of the testified that the is able to conduct online tutoring (T. 43), and can also do group online tutoring at a lower rate (T. 48). The Parent is currently waiting for the District to provide her with an IPAD for the tutoring (T. 38).

Legal Background

The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (““FAPE”). 20 U.S.C. § 612(a)(1). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1){A). The IDEA defines a FAPE as special education and related services that: - (A) have been provided at public expense, under public supervision and direction, and without charge, - (8B) meet the standards of the state educational agency, - (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and - (D)are provided in conformity with the individualized education program required under § 614(d) ofthis title. 20 U.S.C. § 601(9).! A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute ... is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the [EP is produced by a committee ' “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “rclated services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational] therapy, recreation, including therapeutic recreation, social work services, counseling services, mcluding rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children, 20 U.S.C. § 601(26).

on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005). The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(D) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity fo present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C, § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE, Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002). In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shal! have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing ...” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an JEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

Analysis

I find that the District did not provide the Student a FAPE for the school years at issue in this case. The District submitted evidence but did not call any witnesses. The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See, Application ofa Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also, L.O. y. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). The District had no objection to the Parent’s request for compensatory tutoring. I find such tutoring is necessary and appropriate to help the Student make progress. Despite the recommendation for 700 hours of tutoring, I do not exceed the demand found in the complaint notice, and order only the 500 hours of tutoring agreed to by the District.

Compensatory Education

Regarding the remedy of compensatory education, J find guidance in Reid v. District of Columbia, 401] F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, 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 time (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. 24 375, 387 [N.D.N.Y. 2001]. 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 students 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]"]; see generally 2.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 schoo! 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 service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 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. af 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. vy. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[alppropriate 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. £.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"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time mussed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

Recommendations

The Neuropsychologist who evaluated the Student in Apri! 2019 recommended, “A Structured, multi-sensory special education program with a limited student/teacher ratio, with expertise in remediation of severe reading, writing, and math deficits for Students with a history of autism spectrum systems, inattention- hyperactivity, information processing, neuro-cognitive, and language deficiency, anxiety symptoms, social and behavioral, adaptive functioning, and associated learning difficulties. . .”. The Neuropsychologist also recommended extended test time, counseling, and social skills counseling” (Ex. G) The Director of the Private who evaluated the Student recommended 700 hours of 1:1 academic tutoring (Ex. I, Ex. J).

{ have reduced requested award regarding the request for compensatory education because I am confident in the CSE and their ability, guided by the Neuropsychological Evaluation (Ex. 16) and the other evaluations developed over time, to make good decisions about the Student’s needs and related services going forward. Two, | recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of tutoring, may be daunting. Inherent limits ofstamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order. it is therefore ORDERED 1. The District shall provide for a bank of five hundred (500) of tutoring instruction. The use of the hours toward particular subjects and the timing of such services is left to the discretion of the provider and Parents. Any unused hours at the end of a three- year period from the date of this order shall be forfeited. Dated: May 29, 2020

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a 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 personally served upon the opposing party no later than 25 days afier the date of the decision sought to be reviewed. An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed. gov.

#190731 April 16, 2020 Page 2 Parent’s Disclosure Exhibits Exhibit | Date Description # of pages A 1/26/2017 | Individualized Education Program (IEP) 13 B 1/24/2018 | Individualized Education Program (IEP) 22 C 12/16/2018 | Psychoeducational Evaluation Report 17 D Fall 2018 | Teacher Progress Report 6 E 1/15/2019 | Individualized Education Program (IEP) 16 F 4/16/2019 | Letter from Parent regarding CBST deferral 2 G 5/14/2019 | Neuropsychological Evaluation 20 H 6/26/2019 | Individualized Education Program (TEP) 22 I 1/6/2020 Letter from l J 3/13/2020 | Affidavit of - 5 K 11/7/2019 | Request for Impartial Hearing 7

Christina Foti, Deputy Chief Academic Officer Division of Specialized Instruction and Student Support Special Education Office and District 75 Citywide Programs Student’s Name: Case Number: 190731 Date of Hearing: April 23, 2020 NYC DOE DISCLOSURE LIST Number Date Document Number of Pages 03/05/2018 Prior Written Notice 3 2 12/18/2018 IEP 28 3 02/11/2019 Prior Written Notice 3 4 11/19/2019 IEP 25 5 12/04/2019 Prior Written Notice 6 02/05/2020 Heart Share Placement Letter 7 02/14/2020 IEP 28 8 02/24/2020 Prior Written Notice | 3