New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 535394 - NYC: 192450

FINDINGS OF FACT AND DECISION

Case Number: 192450

NYS Case Identifier Number: N/A

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: 11

Hearing Requested by: Parent

Date of Hearing: 7/28/20

Record Close: 8/18/20

Hearing Officer: Nancy Lederman, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED JULY 28, 2020 *

For the Student:

[REDACTED], Attorney

[REDACTED]Parent

[REDACTED], Director, [REDACTED]

For the Department of Education:

[REDACTED], District Representative

* All parties appeared by telephone.

Ned Kassman, Impartial Hearing Officer, observed the hearing, with the consent of the parent.

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). The due process complaint notice (DPCN) was filed January 31, 2020, but due to a backlog in assignments, appointments were delayed, I was appointed on July 10, 2020.

[REDACTED] is a [REDACTED]-year-old child whose parent [REDACTED]or parent) has brought the instant hearing, arguing that the DOE had failed to provide [REDACTED] a free appropriate public education (FAPE) for the 2019-2020 school year. Ex. A.

A hearing was held on July 28, 2020. The record closed upon receipt of documents and the transcript on August 18, 2020.

DISTRICT AND PARENT POSITIONS

The parent’s DPCN stated that the district failed to appropriately evaluate the child, failed to respond to a request for an independent evaluation, and failed to offer appropriate program and services for the 2017-2018, 2018-2019, and 2019-2020 school years. Other claims in the DPCN included inadequate goals and progress reports. As relief, the parent requested occupational therapy and speech-language evaluations, funding for an independent neuropsychological evaluation, reconvening of the CSE, compensatory services, and funding for transportation for such services. Ex. A.

At hearing on July 28, 2020, the parent attorney provided additional clarification, confirming that the parent requested funding for an independent neuropsychological evaluation with [REDACTED] at the rate of $5,000; the DOE to conduct occupational therapy and speech-language evaluations; reconvene of the IEP team to review the updated evaluations; and funding of 800 hours of compensatory academic remediation at the rate of $125 per hour from [REDACTED]. Other claims were withdrawn. Tr. 9-11.

The district representative stated that the district would not be presenting any documentary evidence for this matter nor presenting any witnesses, and would be resting its case, conceding that the DOE did not provide the student with a FAPE during any of the three years that are mentioned in the DPCN. Tr. 6-7. She further indicated that that the district didn’t have any objections to any of the evaluations being sought, including the independent neuropsychological evaluation by [REDACTED]. Asked about the 800 hours for [REDACTED] services at $125 an hour, she stated that district had no objections to the number of hours nor to the rate. Tr. 10-11.

FINDINGS OF FACT

[REDACTED], [REDACTED]’s parent, appeared by affidavit and testimony. She noted that [REDACTED], who is diagnosed with dyslexia, has been going to school and struggling with reading. She also struggles a little with math. She has been attending an integrated co-teaching (ICT) classroom since she was first classified in May 2015, but continued to struggle even with special education services provided. Tr. 28. A neuropsychological evaluation conducted by [REDACTED] in April 2016 was provided to the IEP team, but did not result in any additional services for [REDACTED]. In December 2019, AM noted her objection to Dr[REDACTED] evaluation and asked the DOE to fund an independent neuropsychological evaluation with[REDACTED], clinical psychologist. [REDACTED] is now approaching the [REDACTED] grade, and [REDACTED] noted that she is only at a grade 1 or grade 2 reading level. Asked if [REDACTED] was given any reading services in school, [REDACTED]stated that she didn’t know what type of reading services she had been given, saying that when she asked [REDACTED], the child said they would pull her out of class and do a little reading, then put her back in the class. Tr. 28; Exs. M, N, Q.

[REDACTED], an academic evaluator and founder of [REDACTED], also testified by affidavit and testimony. She explained the record review and testing she had done of [REDACTED], giving results that indicated 1st grade level for spelling and decoding, 2nd grade for math, 1st grade for writing, and 1st grade for reading comprehension skills. She recommended 800 hours of one-on-one multisensory academic remediation to develop her decoding, spelling, written language, math, and reading comprehension skills. [REDACTED] intended to match with an instructor trained in Orton Gillingham and similar multisensory methodology, as a rate of $125 per hour. Asked about the basis for her conclusions, she noted that [REDACTED] had tested so far below grade level; despite going into [REDACTED] grade at the time, she came out at a 1st to 2nd grade level across the board, lacking academic foundations with all core academic skills. [REDACTED] also reviewed the child’s IEPs and several evaluations that indicated she required one-on-one support for reading, writing, and math and needs tutoring. [REDACTED] testified about her work with many students with similar learning disabilities in reading, writing, and math who were functioning as far below grade level as [REDACTED]. Her recommendation envisioned a flexible schedule averaging ten hours per week over a two-year school time period, totaling 800 hours. Tr. 21-23; Ex. P.

CONCLUSIONS OF LAW

An appropriate educational program begins with an IEP that includes a statement of the student’s present levels of academic achievement and functional performance. See 34 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

As noted above, the district representative failed to produce any evidence and stated that the district was not putting on a case, and conceded that the district had failed to provide [REDACTED] with a FAPE in the three school years referenced in the DPCN.

In considering remedy, I start with the evaluation sought. The parent asked for funding for evaluations conducted by [REDACTED], at a cost of $5,000. State regulation sets forth requirement for an independent educational evaluations. If a parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent evaluation at public expense. 8 NYCRR §200.5 (g)(1).

As noted, there was no dispute in this case to provision of the evaluation, nor to [REDACTED] qualifications for conducting the evaluation. Under the circumstances, I will be ordering the evaluations and additionally, the CSE to convene upon its completion to review and consider the findings and recommendations in the evaluation.

In addition, I note the request for 800 hours of services to be provided by [REDACTED]. Although the district was willing to agree to the service and amount without questioning, in response to my questions about the basis for a recommendation of 800 hours, [REDACTED] provided additional support for her recommendation of 800 hours, or the equivalent of two years of remediation for the child based on a typical 40-week school year. I note the child’s diagnosis of dyslexia, the failure of any evidence of reading support given her, and the undisputed 1st grade level at which she tested when approaching [REDACTED] grade. I credit [REDACTED]’s description of the complexity of the work that will be required for [REDACTED], and her estimate of the time based on a 40-week year, which will be incorporated into the order in this case.

ORDER

• • The DOE shall fund a neuropsychological evaluation of [REDACTED] by [REDACTED] at the rate not to exceed $5,000.
• • The DOE shall conduct occupational therapy and speech-language evaluations of [REDACTED], within 20 days of this Order.
• • Upon receipt of the evaluations, the CSE shall meet within 10 days to review and consider the evaluations’ findings and recommendations, and issue an IEP that provides recommendations for [REDACTED]’s education program that addresses her specific special education needs, with reference to the evaluations’ conclusions, reporting of her actual reading levels and other test results, and supports to address her reading and other areas of need.
• • The DOE shall provide a bank of 800 hours of academic services from [REDACTED] for [REDACTED] at a rate not to exceed $125 per hour. The parent may draw upon the bank for services for [REDACTED] for a period of two school years, until June 30, 2022.

IT IS SO ORDERED.

Dated: August 20, 2020

__ Nancy M. Lederman ___

Nancy M. Lederman

Impartial Hearing Officer

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 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 proceedings 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.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS *

A Demand for due process hearing, 1/31/20, 6 pages

B IEP, 5/6/19, 13 pages

C IEP, 5/8/18, 17 pages

D IEP, 11/14/17, 15 pages

G Recommendation, [REDACTED], 7/17/20, 5 pages

H Assistive technology evaluation follow-up, 5/17/18, 5 pages

I Educational evaluation report, 1/9/18, 4 pages

K Neuropsychological assessment, 4/28/16, 8 pages

L Report card, 2019, 1 page

M Request for evaluation to P.S. 97, 12/17/19, 4 pages

N Request for independent evaluation to the CSE, 12/17/19, 4 pages

O Affidavit, [REDACTED], 7/17/20, 4 pages

P Affidavit, [REDACTED], 7/17/20, 2 pages

Q Affidavit, [REDACTED], 7/24/20, 4 pages

* There were no exhibits E, F, and J entered into the record.

IHO EXHIBITS

None