New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

, , CASE # 190995

Hearing Requested By: Parent

Date of Hearings: 5/7/20, 7/8/20, 8/26/20 and 10/28/20

Record Close date: 11/15/20

Hearing Officer: James McKeever, Esq.

For the Student:

, ESQ., Attorney

For the Department of Education:

, District Representative

Procedural Background

On November 19, 2019, the parent filed the within Due Process Complaint (DPC) alleging that the student was denied a free and appropriate public education (FAPE) by the Department of Education (DOE) during the 2017-2018 and 2018-2019 school years because the DOE failed to provide the student with his related services. The parent also requested several IEEs

(Exhibit A, Tr. 19).

The DOE did not present a case to defend FAPE for the subject school years (Tr. 20).

The DOE did not object to the parent’s request for IEEs (Tr. 20).

I accepted the appointment to this case on May 1, 2020, at the request of SED and the New York City Hearing Office in order to assist with the backlog of cases.

Extensions of the Compliance date:

The parties requested extensions of the compliance date due to availability of witnesses and to complete the hearing, which were confirmed on the record. The orders of extension were served on the parties and sent to the hearing office.

Findings of Fact:

Based upon the evidence adduced at the Due Process Hearing, I make the following findings of fact:

The parent requested funding for an independent FBA and BIP, as well funding for 21 counseling services in a group and 32 individual occupational therapy services (Tr. 21).

The DOE did not object to the amount of make up services for the student (Tr. 23).

Conclusions of Law:

Two purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

The DOE bears the burden of proof in due process hearings brought under the IDEA in New York State (See, N.Y. Educ. Law Section 4404).

FAPE:

The DOE did not present any evidence to defend any of the student’s IEPs for the subject school years. As such, I find that the student was denied a FAPE for the school years at issue.

Compensatory Education:

Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). While compensatory education is a remedy that is available to students who are no longer eligible for instruction, State Review Officers have upheld hearing officers awards of “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. SRO 06-074.

The DOE did not contest the amount of comp. ed. requested by the parent. Additionally, I find that amount of counseling and OT services requested by the parent to address the denial of FAPE for the school years at issue is appropriate. Accordingly, the parent’s request for same is granted.

IEE:

Federal and State regulations provide that, subject to certain limitations, a parent has the right to an IEE at public expense if the parent disagrees with an evaluation obtained by the school district (34 C.F.R. § 300.502[a], [b]; 8 NYCRR 200.5[g][1]; see R.L. v. Plainville Bd. of Educ., 363

F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]). A parent, however, is only entitled to one IEE at public expense "each time the public agency conducts an evaluation with which the parent disagrees" (34 C.F.R. § 300.502[b][5]; 8 NYCRR 200.5[g][1]; see R.L., 363 F. Supp. 2d at 234-35). If a parent requests an IEE at public expense, the school district must, without unnecessary delay, ensure that either an IEE is provided at public expense or initiate an impartial hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 C.F.R. § 300.502[b][2][i]-

[ii];5 8 NYCRR 200.5[g][1][iv]; see, e.g., A.S. v. Norwalk Bd. of Educ., 183 5 , Appeal No. 08-039; , Appeal No. 07-126; , Appeal No. 06-067; , Appeal No. 05-

009; F. Supp. 2d 534, 549 [D. Conn. 2002] [upholding order of reimbursement where the district failed to demonstrate that its evaluation was appropriate]; Application of the Bd. of Educ., Appeal No. 09-109; Application of a Student with a Disability, Appeal No. 08-101). If a school district's evaluation is appropriate, a parent may not obtain an IEE at public expense (34 C.F.R. §

300.502[b][3]; 8 NYCRR 200.5[g][1][v].

Here, the evidence shows that the parent requested that the District fund an independent FBA and BIP. The District did not contest the parent’s request. Thus, I find that the parent is entitled to funding and/or direct payment for the cost of an independent FBA and BIP at market rate.

ORDERED

The DOE shall fund 21 make up sessions of counseling services in a group and 32 make up session of individual occupational therapy services at market rate by a provider selected by the parent.

The DOE shall fund and/or directly pay for an independent FBA and BIP at market rate.

Dated: New York, New York

November 20, 2020

James McKeever

James McKeever, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

Within 40 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

The notice of intention to see review shall be served upon the school district not less than 10 days before service of a copy of the petitioner for review upon such school district, and within 25 days from the date from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the dated of the decision sought to be review. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.

(8NYCRR279.2[b]). Failure to file the notice of intention to seek review is a waiver of the rights to appeal this decision.

Directions and sample forms can be found in the Office of State Review website: www.sro.nysed.gov/appeals.htm.

Office of State Review website: www.sro.nysed.gov/appeals.htm.