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NYSED # 533936 NYC# 191564
FINDINGS OF FACT AND DECISION
191564
Hearing Requested By: Parent
Date of Hearings: 6/5/20, 6/23/20, 6/30/20, 10/2/20, 11/18/20, 1/13/21, 3/13/21, 4/16/21, 5/19/21, 6/21/21 7/19/2, 8/19/21, 9/17/21, 10/20/21, 11/23/21, 1/13/22, 2/14/22, 6/1/22, 6/29/22, 8/3/22, 9/7/22, 10/12/22 and 11/15/22.
Record Close date: 1/1/23
Hearing Officer: James McKeever, Esq.
PROCDURAL BACKGROUND
On March 17, 2021, 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 2018-2019 and 2019-2020 school years because the DOE’s proposed programs did not meet the student’s academic and social-emotional needs, inter alia (Exhibit A, Tr. 122).
I was not appointed to this matter until May 29, 2020, which I accepted at the request of SED and the New York City Hearing Office in order to assist with the backlog of cases.
Based on the alleged denial of FAPE, the parent requests that the DOE fund the following at enhanced rates:
- • 1,380 hours of 1:1 Special Education Instruction / Tutoring services;
- • 92 hours of Parent Training services;
- • 92 hours of Counseling services;
- • 80 hours of Speech Language Therapy (“SLT”) services;
- • 92 hours of Occupational Therapy (“OT”) services; and
- • 20 hours of Physical Therapy (“PT”) services.
The Parents request to utilize providers of their choosing for all services awarded, including bilingual Yiddish-English providers, so long as the individuals are qualified and charge reasonable market rates consistent with the rates funded by the Impartial Hearing Implementation Unit.
The DOE did not present a prong I case (Tr. 122).
The DOE did not cross-examine the parent’s witnesses (Tr. 122).
Extensions of the Compliance date:
The parties requested extensions of the compliance date in order to initially pursue settlement and then to complete the hearing process, 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 student is classified as a student with a disability under the IDEA (Exhibit A).
The student has significant academic and self-regulation delays (Exhibitss A-E, J-M).
The student requires prompting and coaxing to communicate.
The student has fine motor delays and gross motor delays (Exhibits A, J-L).
The student has sensory processing delays and struggles with Activities of Daily Living (“ADL”) (Exhibits A-E).
The student has been diagnosed with Attention Deficit Hyperactivity Disorder, Combined Type (“ADHD”) (Exhibit J).
CONCULSION 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:
I find that the Department failed to offer the student a FAPE for the subject school year because the Department failed to offer any witnesses or documentary evidence at the hearing to defend the student’s IEP and placement.
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.
I find that based on the evidence presented by the parent, which was not rebutted by the DOE, the relief requested is appropriate to address the denial of FAPE for the subject school years.
Accordingly, the parent’s request for the aforementioned relief is granted.
ORDERED
ORDERED
The DOE shall fund the following at enhanced rates:
- • 1,380 hours of 1:1 Special Education Instruction / Tutoring services;
- • 92 hours of Parent Training services;
- • 92 hours of Counseling services;
- • 80 hours of Speech Language Therapy (“SLT”) services;
- • 92 hours of Occupational Therapy (“OT”) services; and
- • 20 hours of Physical Therapy (“PT”) services.
The Parents may utilize providers of their choosing for all services awarded, including bilingual Yiddish-English providers, so long as the individuals are qualified and charge reasonable market rates consistent with the rates funded by the Impartial Hearing Implementation Unit.
Dated: New York, New York
January 3, 2023
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.
Parent’s:
A Impartial Hearing Request 12/15/2019 9
B Evaluations Bilingual Speech and Language Evaluation 03/19/2019 4
C Evaluations Bilingual Psychological
Evaluation 02/14/2019 6
D Evaluations Bilingual Educational
Evaluation 02/28/2019 6
E Evaluations Social History/
Parent Interview 02/24/2019 3
F SRO No 19-094 11/20/2019 9
G Attorney Emails with DOE 06/05/2019,
06/08/2019 2
H Interim Order for Independent Educational
Evaluations (“IEEs”) 06/30/2020 3
I Corrected Interim Order for IEEs 10/7/2020 3
J Independent Bilingual Neuropsychological
Evaluation Report 04/25/2021 20
K Independent Occupational Therapy Evaluation
Report 01/10/2021 17
L Independent Speech Language Therapy
Evaluation Report 12/21/2020 15
M Independent Feeding Therapy Evaluation Report 01/15/2021 5
N Resume / CV Undated 3
O Independent Physical Therapy Evaluation Report 12/06/2020 8
P Affidavit of Ph.D. 11/11/2022 9
Q Affidavit, PT, DPT 11/14/2022 6
R Affirmation 11/15/2022 4