New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 535275 - NYC: 192392

FINDINGS OF FACT

Case Number: 192392

NYS Case Identifier Number: 535275

Student’s Name: REDACTED Date of Birth: REDACTED District: REDACTED Hearing Requested By: Parent Date of Hearing: July 13 and September 3, 2020

Record Closed Date: September 17, 2020 Hearing Officer: Tessler

Appearances:

July 13, 2020:

Parent

REDACTED, Esq.

Department of Education:

REDACTED, CSE Representative

September 3, 2020:

Parent:

REDACTED, Esq.

REDACTED, Parent

Department of Education:

REDACTED, CSE Representative

Evidence:

Parent:

A

Due Process Complaint

1/28/20

5 p

B

IEP

11/22/19

15

C REDACTED Evaluation 12/18/19 4

D REDACTED Individualized Prescribed Hours 12/18/19 3

E REDACTED Testing 12/18/19 63

F Affidavit 8/26/20 2

G Affidavit: REDACTED 8/19/20 10

H Affidavit: Parent 8/25/20 5

• • Introduction On July 7, 2020, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C.

§1415, regarding the special education program of REDACTED ("REDACTED"). The hearing was held on July 13 and September 3, 2020. Lists of persons in attendance and documents received in evidence are appended to the record.

The decision deadline was extended by SED on July 7, 2020 because the case was ‘waitlisted,’ and at the parties’ request on July 13, 2020 because of witness availability, and on September 3, 2020, to allow for receipt of the transcript. Before granting the extension requests, I determined that the extensions would have no adverse impact on the child’s educational interest or well-being, and no adverse financial or other detrimental consequences for the parties. I also determined that the extension requests were not based on school vacations, or scheduling conflicts of the parties or their representatives.

• • Background REDACTED is an REDACTED year old student classified with a learning disability; classification is not disputed. (T. 18). She has attended REDACTED for several years, and during 2019/20, she was a REDACTED grade student there. In Fall, 2019, REDACTED’s parent referred her to the CSE for evaluation, and the initial IEP, dated November 22, 2019 (Exh. B), recommended an ICT program for Math, ELA, and Social Studies.

REDACTED, attorney for REDACTED, REDACTED’s parent, filed the Due Process Complaint on January 28, 2020 (Exh. A), alleging that the department of education failed to offer/provide FAPE during 2015/16, 2016/17, 2017/18, 2018/19 and 2019/20 because: it violated ‘child find’ provisions by failure to timely evaluate and classify REDACTED, and failed to provide adequate supports and services after REDACTED was classified with a disability; the November 22, 2019 IEP is substantively deficient; the CSE did not develop a meaningful transition plan; the CSE failed to provide the parent with appropriate prior written notice. The parent seeks: an appropriate IEP, and compensatory education in the form of 787 hours of tutoring from REDACTED (“REDACTED”) at the rate of $105 per hour, plus funding for REDACTED’s diagnostic testing in the amount of $295, REDACTED’s registration fee of $100, and transportation via MetroCard to and from REDACTED for REDACTED and her parent.

• • The CSE’s Case The CSE did not present any witnesses or offer documents into evidence, and acknowledged that it did not provide FAPE to REDACTED. (T. 4, 5, 20).
• • The Parent’s Case The parent submitted the affidavit in lieu of testimony of REDACTED, Director of REDACTED for 19 years (Exh. G); her duties include supervision of tutoring programs for enrolled students. REDACTED is an accredited program that offers individualized tutoring in reading, writing, math, exam preparation and specific subjects, for general and special education students from kindergarten through high school. Staff includes more than 50 certified teachers, many with special education certifications. The program uses multi-sensory instruction and a wide variety of curricular materials. Individual tutoring allows for regular assessment of progress, and quick identification of problem areas and implementation of necessary program modifications. It benefits students who need frequent redirection, clarification, or focusing, or become easily frustrated.

On August 7, 2019, REDACTED assessed REDACTED using standard tests administered by a certified special education teacher, under REDACTED’s direction and control. (Exhs. C, E). The testing revealed REDACTED to be operating at least four grade levels below expectations in both verbal (ELA) and math skills, and to have significant gaps in all academic skills. REDACTED estimates that REDACTED has 5th grade verbal skills and 6th grade math skills. REDACTED uses the assessment as a baseline to determine the student’s mastery level, and develops a program to build upon that level in a logical and sequential manner to bring the student to the desired level of academic functioning. Based on REDACTED’s test results, REDACTED prepared an ‘Individualized Prescribed Hours’ learning plan (Ex. D), that identifies the skills to be worked on, some of the curriculum to be used, and the number of hours of tutoring required for each skill; the plan recommends 787 hours of 1:1 tutoring in math and verbal skills, including comprehension, vocabulary, writing, study skills, and math. The program also includes ‘splinter skills’ that provide drills and practice in each component of reading comprehension, including main idea, fact and detail, use of context clues, sequence, and inferential thinking.

The parent submitted the affidavit in lieu of testimony of REDACTED, REDACTED’s parent. (Exh. H). REDACTED states that for several years REDACTED has attended REDACTED, and during 2019/20 she was in REDACTED grade. In Fall, 2019 REDACTED referred REDACTED to the CSE for evaluation because of long standing academic concerns. REDACTED has struggled throughout her academic career, has been held back in some grades, and functions below grade level in reading, writing and math. The initial IEP, dated November 22, 2019, recommends classification as learning disabled and an Integrated Co-

Teaching Services (“ICT”) program. The IEP notes that REDACTED functions at a 6th grade level in reading and a 7th grade level in math, had a cumulative average of 59.71%, and had failed 4 out of 7 regents exams. During 2015-2016, 2016-2017, 2017-2018, and 2019-2020, Ms. REDACTED repeatedly expressed her concerns to school staff about REDACTED’s lack of progress in reading, writing and math, and requested additional academic support from the school to help REDACTED gain core academic skills. Despite REDACTED’s long standing learning issues, and REDACTED’s repeated requests for increased help, school staff failed to refer REDACTED to the CSE for evaluation. REDACTED states that the November 22, 2019 IEP is deficient, because it does not provide REDACTED with required supports and services, including intensive, individualized reading, math, and writing instruction or 1:1 instruction. She believes that an ICT program is not sufficient to address REDACTED’s deficits. REDACTED continues to require significant help in reading, writing, and math. Because of the COVID-19 crisis, REDACTED was home for several months without direct instruction and a formal school program, which caused further regression. REDACTED stated that the department of education never gave appropriate or adequate information regarding the CSE process or my rights as a parent of a child with a disability; this deprived her of the right to meaningful participation in the development of REDACTED educational program, contributed to the department’s long-term failure to provide REDACTED with an appropriate education, and deprived REDACTED of educational benefits. REDACTED requests an appropriate and compensatory tutoring. She brought REDACTED to REDACTED for assessment, and has already paid for some tutoring there; she request reimbursement of the $1,245 she paid for tutoring. She wants REDACTED to provide the compensatory tutoring, and requests transportation to REDACTED for her and REDACTED, via MetroCard.

• • Findings of Fact and Conclusions of Law I find that the department of education failed to identify REDACTED as a student with a disability, and failed to offer or provide her with FAPE for 2015/16, 2016/17, 2017/18, 2018/19 and 2019/20. I conclude that REDACTED is entitled to compensatory services.

The purpose of the IDEA’s "child find" provisions is to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446. F.3d 335, 347-48 [2d Cir.

2006]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008] aff'd, 2010 WL 1049297 [2d Cir. March 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34C.F.R. § 300.111[a][1][i]; Forest Grove, 129 S. Ct. at 2495; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307

F. Supp. 2d 394, 400, n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]). To satisfy the requirements, a board of education must have procedures in place that will enable it to find such children (Application of a Student Suspected of Having a Disability, Appeal No. 10-009). This includes Procedures to locate, identify, and evaluate all nonpublic private elementary and secondary school students with disabilities, including religious-school children The child find activities for these students must be similar to activities undertaken for students with disabilities in public schools and requires that the school district consult with representatives of private schools and representatives of parents of parentally placed private school students with disabilities on the child find process. Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (Application of a Student Suspected of Having a Disability, Appeal Nos. 11- 092 & 11-094; Application of a Child Suspected of Having a Disability, Appeal No. 05-127). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (New Paltz, 307

F. Supp. 2d at 400, n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]; Application of a Child Suspected of Having a Disability, Appeal No. 06-092; Application of a Child Suspected of Having a Disability, Appeal No. 06-087; Application of a Child Suspected of Having a Disability, Appeal No. 05-127; Application of a Child Suspected of Having a Disability, Appeal No. 05-040). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F.Supp.2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]).

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. §1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R.

§ 300.320). 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). School districts are required to locate, identify and evaluate all children in the district under 21 with disabilities. (20. U.S.C. §1412[a][3]). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]).

The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be ‘reasonably calculated to provide some 'meaningful' benefit’ (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192), and ‘enable the child to make progress appropriate in light of his circumstances.’ Endrew F. vs. Douglas County School District, 580 U.S., 137 S. St. 988 (2017). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services (Application of the Dep't of Educ., Appeal No. 07- 018).

I credit the parent’s statements that for all the years at issue she requested additional services for REDACTED because of REDACTED’s continued significant learning difficulties and lack of progress, and that school staff never provided any services or recommended that REDACTED be evaluated. The department of education representative acknowledged on the record that the department failed to provide FAPE. I find that the department of education had reason to suspect that REDACTED was a student with a disability, who required special education services, but failed to identify her as such. ‘Child Find’ is a school district’s affirmative obligation, and does not require a parental referral to trigger it. I conclude that the department violated the IDEA’s ‘child find’ provisions by failing to identify and evaluate REDACTED during the years at issue. Even after the department evaluated REDACTED and developed an IEP, it failed to make appropriate recommendations: the department did not present witnesses or offer documents into evidence, and therefore did not meet the burden of showing its recommendations for REDACTED were appropriate. I conclude that the department of education failed to offer or provide FAPE to REDACTED for the years at issue.

Once it has been determined that a student has been denied FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. “[I]t is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Compensatory education relief may 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 FAPE (See P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d Cir. 2008) When calculating a compensatory services award, some courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. (See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Other courts focus on the child’s needs. Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).

I find that REDACTED is entitled to compensatory education designed to make her whole and enable her to make up for the deprivation of educational benefits she suffered due to the department’s failure to provide her with FAPE. The parent made a persuasive case that REDACTED requires compensatory services in the form of tutoring to address her significant deficits in reading, writing and math, and make up for the failure to provide FAPE. I find that REDACTED is an appropriate tutoring service for REDACTED. REDACTED administers assessments to determine a student’s baseline skill level, and develop an individualized program, using research-based, multi-sensory instruction. It is staffed by certified teachers who work under close supervision. Progress is monitored continuously, and programs are modified as necessary. I find that REDACTED’s rate of $105 per hour is reasonable for the service provided. REDACTED has certified special education instructors available to tutor REDACTED. I note that the requested amount of compensatory services, 787 hours, is an amount reasonably calculated to compensate for the department’s failure to provide FAPE during 2015/16, 2016/17, 2017/18, 2018/19 and 2019/20. I conclude that REDACTED is entitled to 787 hours of compensatory tutoring from REDACTED, at the rate of $105 per hour, plus the cost of REDACTED’s assessment, registration, and transportation to and from REDACTED.

• • Order

IT IS THEREFORE ORDERED THAT: the department of education shall (a) fund 787 hours of compensatory tutoring for REDACTED, provided that the tutoring may be provided by any qualified provider with New York certification in special education, including but not limited to an REDACTED tutor, at a rate not to exceed $105 per hour, and that the obligation to provide compensatory services shall continue until the full amount awarded has been provided,

(b) pay the cost of REDACTED’s diagnostic testing in the amount of $295 and registration fee in the amount of $100, and (c) provide transportation to and from REDACTED for REDACTED and her parent in the form of MetroCards.

Dated: September 28, 2020

Craig Tessler, Esq.

Craig Tessler, Esq. Impartial Hearing Officer

PLEASE TAKE NOTICE

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 after 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 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.