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CASE NUMBER: 537276 NYC: 194073
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
Hearing Requested By: Parent
District: REDACTED
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: April 12, 2023
Introduction
This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) 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(s) as Parent(s) and the student will be referred to as Student.
The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.
Overview The primary issue in this matter is the Parent’s demand for “compensatory education” for alleged District failures across the 2017-2018, 2018-2019, and 2019-2020 school years (SYs). Regarding the remedy of compensatory education, I 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].
The Parent filed the complaint notice on May 27, 2020. (Ex. A) I was appointed as the IHO October 21, 2020. On the first hearing date, pendency was established and an order was made. (Ex. E) A hearing was held across multiple dates.[1] The s introduced exhibits A-R into the record and called three (3) witnesses: the Neuropsychologist, the Occupational Therapist, and the Speech Language Pathologist. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf. The District advocate did engage in cross examination.
Parent’s Position The Parent alleges that, for the SYs at issue, the District failed to: (a) thoroughly and appropriately evaluate the Student on a timely basis; (b) develop a timely, substantively and procedurally valid IEP; (c) offer the Student a timely and appropriate placement and services; (d) denied the Student a FAPE under the IDEA and Section 504, and (e) violated the Parent’s procedural rights under the IDEA and Section 504. (Ex. A-2) Further, the Parent claims that the District’s declassification of the Student was improper. (T. 22-23)
To remedy the above, the Parent requested that the District reimburse them for the following Independent Educational Evaluations (IEEs): a. Neuropsychological Evaluation b. Speech and Language Evaluation c. Auditory Processing Evaluation d. Occupational Therapy Evaluation e. Physical Therapy Evaluation f. Assistive Technology Evaluation g. Vision Processing Evaluation (T. 23-24)
Additionally, the Parent seeks compensatory education for the following: a. Bank of 1:1 instruction; b. Additional Special Education Itinerant Teacher (“SEIT”) services; c. Tutoring, behavior therapy, services to improve executive functioning, AT, AT training, related services (such as occupational therapy, physical therapy, speech therapy, counseling, social skills training and/or feeding therapy) as well as any other services recommended as a result of independent evaluations. (Ex. A-10)
The Parent’s initial request for an IEE was on the date which the complaint notice was filed. During the December 21, 2020, hearing, the Parent’s attorney made the following assertion to demonstrate the appropriateness of the IEEs which they obtained: At that point -- since that time, the Department has not reached out to offer, or to defend their evaluations, or conduct any additional evaluations. So it's the Parent's position that independent evaluations are warranted under various aspects of the IDEA, including what Your
Honor just spoke to, which was the hearing officer's discretion to award independent evaluations to inform the record.
But also there are grounds under IDEA when the Parent requests independent evaluations that the District must fund them, unless they file their own complaint to defend their own evaluations, which the Department did not do. (T. 20-21)
I granted partial relief via interim order dated January 26, 2021[2] (T p. 78).
District’s Position The District asserts that their declassification of the Student was justified and objected to the Parent’s request for an IEE. This is captured below in the District’s opening statement:
So, the representation of the Parent on the record today in regard to declassification of this student is indeed correct; that did occur in April of 2019. The child was turning five at the time. There were several documents that the District did consider prior to the declassification. And so, the District would simply object to an independent educational evaluation, as we do have several documents that were submitted and are resident now in SESIS, which show that the child is no longer eligible for special education. And therefore, the team did declassify the Student. (T. 20)
Background of the Case
2017-2018 SY The Student was REDACTED years old at the start of the 2017-2018 SY, in which she carried a disability classification of a Preschool Student with a Disability. (Ex. A) She was previously diagnosed with Autism Spectrum Disorder and had received Early Intervention services. The Committee on Special Education (CSE) held a meeting on May 9, 2017, to develop an IEP for the Student in anticipation of the upcoming SY. At that time, the Mother expressed concerns regarding her daughter’s overall development, including: cognitive, overall communication, motor and social. The Student received individual direct SEIT services for 1.5 hours per day with the related services of Speech and Occupational Therapy, each delivered individually, twice a week in thirty minute sessions. (Ex. O) No extended school year (ESY) services were authorized.
2018-2019 SY The CSE held another meeting on May 28, 2018 to develop an IEP for the upcoming ESY. (Ex. B) For the summer the SEIT, Speech and OT were continued from the 17-18 SY but starting in September 2018 the program was changed to a 12:1:2 special class. 3 A review of the relevant IEP is ambiguous regarding the programming mandate from September through June but presumably the SEIT, Speech and OT were continued.
2019-2020 SY On April 10, 2019, the District sent the Parent a Prior Written Notice (PWN), informing the Parent her of their recommendation to declassify the Student. M (Ex. I) This recommendation was supported by a “Turning 5 Report” (Ex. J) On May 27, 2020, the Parent filed the complaint notice. (Ex. A)
Legal Overview 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)(I). “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, - (B) 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) of this title. 20 U.S.C. § 601(9). [4] 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 IEP is produced by a committee 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)(I)) 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 to 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).
Did the District Provide the Student a FAPE?
Legal Standard
Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).
In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.
Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.
Analysis
I first look to the Parent’s allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice outlines several significant points of disagreement[5] that concern a span of several years. 6 This is the backdrop in which I weigh the District’s recommendations, mindful that the District has the burden of proof. 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 shall 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 IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.
In this case the District failed to defend the relevant actions of the CSE. I am thus left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to a final recommendation of IESP. They did not call any witnesses to demonstrate that the IEP was appropriate or how it would be implemented in the District school, and failed to demonstrate that they provided a FAPE. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239.
• Additionally, the DOE has violated the IDEA and discriminated against the Student under Section 504 by adopting and implementing blanket policies with respect to the recommendations made on his IEP and the provision of special education services to him.
Compensatory Education
I now look to the testimony of the Parents’ witnesses to establish a basis for the relief sought.
The Neuropsychologist – Testimony The Neuropsychologist testified on the Parent’s behalf by affidavit. She described her evaluative practice as follows: The neuropsychological evaluations that I conduct are comprehensive evaluations designed to assess a variety of areas and look for the relationship among a child's brain, behavior, and learning. (Ex. Q-2)
The evaluations involve looking into a child's comprehensive history, ability to understand concepts, language, memory, visual-spatial skills, executive functioning (i.e., ability to organize, plan, and pay attention), as well as behavior and how they adapt to the environment. (Ex. Q-3) The Neuropsychologist described the testing, and what tests were administered:
During the testing sessions, [the Student] was seating in front of a computer and a secondary camera from a cellphone was pointed at the screen to ensure that I could observe [the Student’s] movements. (Ex. Q-3)
I also conducted a review of available school records, conducted a clinical interview with [the Student’s] then-current Special Education Itinerant Teacher (“SEIT”), and administered questionnaires to [the Mother]. I drafted a report based on my neuropsychological evaluation.
A copy of my final report, marked as Exhibit L, is annexed here to and incorporated herein by reference. (Ex. Q-4)
As outlined on pages 15 through 17 of my report (Exhibit L at pages 15 through 17), I evaluated [the Student] by administering several standardized tests and behavioral inventories, including: a. Reynolds Intellectual Assessment Scales, Second Edition (“RIAS-2”) to assess cognitive functioning. b. Woodcock-Johnson Test of Achievement, Fourth Edition (“WJ-IV”) to assess academic achievement. c. Developmental Neuropsychological Assessment Battery – Second Edition (NEPSY-II) selected subtests to assess attention and executive functioning, language, and visual-spatial skills. d. Clinical Evaluation of Language Fundamentals, Fifth Edition (“CELF-5”) to assess language. e. Wide Range Assessment of Memory and Learning, Second Edition (“WRAML-2”) to assess memory; and f. Behavior Assessment System for Children – Third Edition (“BASC3”): Parent Form to assess behavior and emotional development. The Neuropsychologist explained some of the results from the testing: Results of the RIAS-2 Composite Intelligence Index (“CIX”) where [the Student’s] score of 70 fell in the Very Low range and at the 2nd percentile, revealed that [the Student] demonstrated difficulties with language processing and nonverbal reasoning.
The Nonverbal Index evaluated nonverbal reasoning and fluid intelligence. For the “Odd Item Out” tasks, [the Student] was asked to identify the item in a set that did not belong. On this task, her score fell in the Very Low range (1st percentile). On the “What’s Missing” task, [the Student] was asked to identify a missing essential element; her score on this task fell in the Low range (8th percentile). The rest of the results can be found in Exhibit pages 6-13. The Neuropsychologist diagnosed the Student and recommended the following potential educational plans: My neuropsychological assessment of [the Student] indicated that she met the criteria for (a) Language Disorder, (b) Specific Learning Disorder for Reading (decoding, comprehension), (c) Specific Learning Disorder for Written Expression (spelling, graphomotor skills), (d) Specific Learning Disorder for Mathematics (math reasoning, calculation, fluency), (e) Autism Spectrum Disorder[7] (by history), and (f) Unspecified Neurodevelopmental Disorder (executive function weaknesses, inattention at home). (Ex. Q-13)
The following is recommended for [the Student] (Ex. Q-15): a. intensive 1:1 push-in special education instruction to address both academic and behavioral needs of 25 hours per week; b. Speech Language Therapy, mandate consistent with the most recent Independent Speech Language Evaluation report; c. Occupational Therapy, mandate consistent with the most recent Independent Occupational Therapy Evaluation report; d. A 12-month school year for 1:1 SEIT instruction and the above related services to avoid regression in gains made over prolonged breaks; e. Classroom and testing accommodations as listed in recommendations
4 through 12 of my report (Exhibit L at pages 13 through 14).
f. Compensatory 1:1 special education instruction / tutoring to account for the failure of the DOE to recommend 25 hours of 1:1 special education instruction for the three school years at issue (17-18, 18-19 and 19-20) on a 12-month basis (138 weeks) less any 1:1 SEIT instruction already provided by the DOE; g. Neuropsychological re-evaluation in approximately one year to monitor for progress and to identify needs for updated recommendations at that time. The Neuropsychologist claims as well that the Student’s disabilities were not adequately addressed during the School Years as issue. (Ex. Q-15)
Speech Language Pathologist – Testimony The Speech Language Pathologist testified on the Parent’s behalf by affidavit. She began her testimony by outlining the evaluations she administered:
I administered the Clinical Evaluation of Language Fundamentals -Fifth Edition (CELF-5), which is an evaluation used to determine strengths in overall receptive and expressive language skills.
As part of my evaluation, 8 subtests of the CELF-5 protocol were administered to the Student, including 4 subtests to derive her Core Language Score (CLS) including: Sentence Comprehension (SC), Word Structure (WS), Formulated Sentences (FS), and Recalling Sentences
(RS). (Ex. R-5)
The Results of these tests were deemed “all below average” by the Speech Language Pathologist and she stated that the results for reference can be found in Exhibit N pages 3 through 7. (Ex. R-7) The Speech Language Pathologist offered an “Evaluation Summary”:
After completion of the speech and language evaluation, it is evident that [the Student] presents with significant delays in receptive language skills, expressive language skills, pragmatic (social) skills, and phonological awareness.
Therefore, speech and language services are necessary to support [the Student’s] progress. However, [the Student’s] CPSE IEP and pendency SLT mandate of 2x30 (1:1) per week were not appropriate mandates for [the Student] given her level of need and delays. (Ex. R-13) The Speech Language Pathologist concluded her affidavit with the following recommendations: At the time of my testing, [the Student] required SLT services for a total of three times per week comprised of (a) individual SLT per week for sixty minutes per session (2x60, 1:1) and (b) one group SLT session per week of no more than two-three students for sixty minutes per session (1x60, 3:1). (Ex. R, 13-14)
Additionally, I believe [the Student] requires a bank of compensatory SLT services totaling 160 hours (or 2 hours per week for two 40-week school years) to address her significant delays. This recommended amount was derived from a qualitative clinical approach and analysis, considering [the Student’s] needs at the time of my evaluation and the time she will need to “catch up” to make her whole given the insufficient mandates she was recommended for in the past combined with her lack of receiving the SLT services in the past. (Ex R-14) Occupational Therapist – Direct Testimony The Occupational Therapist offers direct testimony in support of the parents:
Parent attorney (Q): Okay. And are you able to, just turning to your report, exhibit M, walk us through first the assessments that you chose to conduct as part of the OT evaluation?
Occupational Therapist (A): Sure. So, I use both formal and informal assessments. I use the Beery-Buktenica Developmental Test of VisualMotor Integration, as well as the visual perceptual subtest to better understand her visual motor skills, as well as the visual perceptual skills without regard to how that impacts motor skills. I also use the WOLD
Sentence Copy Test, which allows me to better understand how she's able to copy from a near-point surface and track visually to be able to do this. And this also gives me a better understanding of her writing speed, legibility, and kind of all of those components that come into writing. I also had her mother complete the child sensory profile too, as well as the behavior rating inventory of executive function, also known as the BRIEF2. That helps provide me with additional information about her executive functioning skills, and how that affects her more functionally in her everyday activities. And then I also just conducted clinical observation, and parent reports, to better understand the full picture of what was going on. (T.113-114)
Parent attorney (Q): Okay. And can you walk us through the results of your evaluation and what these assessments revealed? Occupational Therapist (A): Sure. So as far as the formalized assessments that I had mentioned before, she did score within the average range for the Visual-Motor Integration and the above average range for the visual perception subtest. However, when she was asked to complete the more functional WOLD Sentence Copy Test, her writing speed was significantly delayed. It took her a very long time to do, and she frequently needed to look back and forth, letter by letter, which really slowed her down and impacted her legibility, her ability to remain within the boundaries, and the -- have marginal awareness that was appropriate. Her letter formation was decreased, and this did prove to be a difficult path for her. She did demonstrate the ability to hold her writing utensil with an appropriate grasp. However, she did hold this very tightly which over time does effect endurance. And she did have adequate pencil pressure when she was doing this. She also did score with some differences in sensory processing, and this is more specifically in areas of visual processing as well as conduct and attention. She had a lot of difficulty with attention, regulation, and the ability to move through more challenging tasks independently. She gets easily frustrated and needs a lot of support to return to these more challenging tasks. She also did demonstrate significant difficulties in executive functioning. How that shows functionally is her ability to move through her daily routines independently, such as getting ready for school, getting all of her things together, remembering what she needs, remembering where to put them. She often has difficulty finding the things she needs and pacing herself to be able to complete activities and tasks in a timely manner. She also demonstrated difficulties with emotional control, initiation, working memory, planning, and organizing, as well as test monitoring. And these are all executive functioning skills that really impact your ability to complete daily activities, things within the classroom, assignments, and also be able to regulate yourself to do them independently. (T.114-116) Parent attorney (Q): And just overall, how do the results of the evaluation that you conducted effect [the Student’s] ability to learn? Occupational Therapist (A): Sure. So relating back to kind of what I had said about her sensory processing, executive functioning, as well as her writing skills, it affects her ability to take in information, remember it, start assignments at the appropriate time, move through them appropriately without needing support to break things down, or to help pace her time. It took her longer to complete these tasks, which in the classroom, could affect her learning and ability to take in the information in an efficient manner. Also if you are writing slowly, you will have difficulty completing things on time and being able to manage the task load of the classroom, and difficulty with regulation and processing sensory information impacts all of these areas as well. As within the classroom, there is a lot of you know sensory stimuli going on, and if you cannot process it efficiently, it will affect your ability to complete, you know, what is expected of you. (T.116-117) Parent attorney (Q): Okay. And I also see in your report you made specific recommendations for [the Student]. Can you walk us through, first, whether you're recommending occupational therapy services for her, and if so, what the frequency is per week? Occupational Therapist (A): Sure. I am recommending occupational therapy services two times weekly for 30 minutes, and I'm recommending them to be in a small group with no more than two students. I'm also recommending that her classroom should have individualized support where directions can be broken down to assist with processing and overall retention of the information. And she should frequently be checked in with to make sure that she's understanding what's going on. I'm also recommending that there should be accommodations within her classroom to help with writing tasks, processing information, and sequencing sets of activities. And this could include modified instruction, visuals, papers with designated writing lines to help with visual organization, and other adaptive paper can help with it. And also, I think that it is important that she should be -- she should be monitored to see if assistive technology is something that she might need because, you know, if her writing speed does not improve -- to just make sure that this is something that is being monitored. I also think that she will benefit from other accommodations such as preferential feeding to make sure that she can decrease the distractions that are going on in the classroom. Flexible seating options to help with attention and decrease environmental stimuli, as well as movement breaks to assist when she's losing focus. (T.117-119) Parent attorney (Q): Okay. And do you believe that [the Student] requires OT 2x30 on a 10-month basis, or a 12-month basis? Occupational Therapist (A): A 12-month basis.
Parent attorney (Q): And why is that?
Occupational Therapist (A): Having occupational therapy on a 12-month basis for [the Student], especially as she's demonstrated difficulties with working memory and ability to retain information, it will ensure that she will maintain the skills that she's learning and will prevent regression from a lack of services over the summer. (T.119-120) Parent attorney (Q): Okay. And I also see on page 15 of the report that you made a recommendation for compensatory occupational therapy services in the form of a bank of 92 occupational therapy hours. Why do you believe compensatory services are needed for [the Student]?
Occupational Therapist (A): [The Student] was not receiving occupational therapy services after she was, you know, discharged upon her turning five from these services. And the gaps that are present because she never received these services after this time, you know, have impacted her ability to make gains in these areas, and these compensatory services will help fill, you know, those gaps that she was left at a loss for gaining these skills without OT. (T.120-122)
Occupational Therapist – Cross-Examination The District Representative cross-examined the Occupational Therapist:
District advocate (Q): Okay. Thank you. Now specifically going to the visual-motor integration, you stated that -- well Exhibit M-4, there's actually a chart which lists the raw score and the standard score, and this shows as visual-motor integration as being average. Could you tell us what were the issues if the child was average that had you test the child for visual-motor integration if the child was not having issues with visual-motor integration?
Occupational Therapist (A): So I didn't know that information until I completed the visual-motor integration assessment. And that is how I came to that finding that she did score average on that assessment. I didn't have that information before, which is why I did complete that assessment. And that gives me only some information but doesn't always give the full picture, which is why I completed, you know, other assessments and testing. (T.123-124)
District advocate (Q): Um-hum. Now, in Exhibit M-1, there's a sentence there which is somewhat of a curiosity. In the last sentence of the second paragraph under history and background, you state that [the Parent] did not give consent to contact [the Student’s] teacher. Is consent something you generally seek from a parent when you do conduct an occupational therapy evaluation?
Occupational Therapist (A): In regards to contacting the teacher.
District advocate (Q): Yes.
Occupational Therapist (A): Yes. Without consent and -- from the parent, I typically cannot otherwise get the contact information for the teacher, and, you know, this is something that I do ask during my evaluation.
District advocate (Q): And did the parent of [the Student] say as to why she did not give consent to contact [the Student’s] teacher?
Occupational Therapist (A): Not to my knowledge.
District advocate (Q): And without that contact with [the Student’s] teacher, would you say that you needed to conduct tests above and beyond the usual test that you would conduct given the fact that you didn't have teacher input?
Occupational Therapist (A): I do not. This was a very typical -- these are the tests that I need to find you know the information for her occupational therapy evaluation and the teacher interview is just an additional part when possible. (T.124-126)
Conclusion While I credit the District with their cross-examination, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet his individualized needs. The problem with the District’s presentation is not that the witnesses were unconvincing, but rather that there was no explanation for the failure to obtain their own evaluations so that they could reconcile their vastly divergent program recommendations from those of the Parents’ experts. The District when faced with very specific recommendations for programming and services, simply discounted these recommendations without building any support through objective evaluative records.
Is Compensatory Education an Appropriate Remedy for Denial of a FAPE?
Legal Standard
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 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 R.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]).
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. of 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. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate 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 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. L.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 missed"]; 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.
Concluding Remarks I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the award. As amplified throughout the record and in this finding of fact it seems that the parties agree that the turning 5 processes caused numerous complications for the child. The District did not call any witnesses, nor did they enter any evidence into the record. The Parents provided an ample amount of expert advice advocating for the proper services. Moreover, the Parents have established that such services are necessary to permit the Student to benefit from instruction.
It is therefore ORDERED
1. This matter shall be remanded to the CSE for the specific purpose of for review of this Student’s record and to create a placement pursuant to a legally valid IEP prepared in accordance with the IDEA and New York State Education law and which contains, at a minimum, the Student’s pendency services, and other services as are warranted by updated evaluative materials. For example: 1:1 instruction, SEIT/ SETSS, SLT services, OT services, PT services, counseling, 12-month ESY, behavioral support and home-based services.
2. The District shall create a bank[8] of compensatory services 9:
a. 1:1 specialized instruction / academic tutoring services to make up for the 1:1 SEIT hours (25 hours per week x 46-week school year x 3 school years = 3,450) minus the SEIT instruction she received from the DOE (the CPSE/pendency mandate of 7.5 hours per week for the 2017-2018 and 2018-2019 school years and for the May 2020 – June 2020 portion of the 2019-2020 school year). [10] b. A bank of compensatory SLT services totaling 160 hours (or 2 hours per week for two 40-week school years) [11].
c. A bank of 92 occupational therapy hours 12
Dated: April [12], 2023
9 Compensatory instruction hours m a y be used flexibly at the Parent’s discretion, either in after-school or home-based environment or via a push-in model into the Student’s school.
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 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.
Footnotes
[1] A hearing was held across the following dates: December 16, 2020; December 21, 2020; January 21, 2021; March 23, 2021; July 12, 2021; September 2, 2021; October 19, 2021; November 16, 2021; December 20, 2021; January 14, 2022; March 21, 2022; April 4, 2022; May 6, 2022; May 31, 2022; June 13, 2022; July 19, 2022; July 25, 2022; and December 7, 2022.
[2] I granted the request for a Neuropsychological Evaluation, Speech and Language Evaluation and Occupational Therapy Evaluation. (See Ex. F)
[3] The Special Class was not implemented (Tr. P. 12 Ex. A Paragraph #12 and Ex. O summary sheet p. 1)
[4] “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 “related 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, including 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).
[5] In the complaint notice, the Parent wrote the following: For the 2017-2018, 2018-2019 and 2019-2020 School Years (“SYs at Issue”), the DOE failed to: (a) thoroughly and appropriately evaluate the Student on a timely basis; (b) develop a timely, substantively and procedurally valid IEP; (c) offer the Student a timely and appropriate placement and services; (d) denied the Student a FAPE under the IDEA and Section 504, and (e) violated the Parent’s procedural rights under the IDEA and Section 504. • The DOE violated the child find provisions of the IDEA by, inter alia: (a) failing to ensure that the Student had IEPs that offered a FAPE in place as of the Student’s third birthday and throughout the time period at issue. • The DOE failed to timely and appropriately implement the Student’s IEPs. • The DOE failed to provide adequate Procedural Safeguards and Prior Written Notice to the Parents during the SYs at Issue. • Additionally, the DOE inexplicitly terminated the child’s special education program and declassified the child as a special education student during the Turning 5 process, despite having no evaluative material indicating that the child no longer required special education services. • Further, the DOE violated Section 504 and the IDEA by adopting and implementing systemic and blanket policies regarding special education service delivery that have affected the services offered to the Student. • Upon information and belief, during 2017-2018 and 2018-2019 SYs, the DOE failed to conduct appropriate evaluations and reevaluations. • For all of the evaluations and reevaluations conducted, the DOE failed to follow the procedural requirements of the IDEA. Among other things, the DOE failed to obtain informed consent, issue Prior Written Notice, hold a meeting or call with the Parent and IEP team to discuss existing assessments and what, if any, additional assessments were necessary. Further, the DOE applied blanket policies to the assessment process. • The DOE did not evaluate the Student in every area of suspected disability. • The DOE’s evaluators are not permitted to diagnose students and, as such, fail, as here, to adequately identify a child’s needs for special education and related services. • Further, the DOE did not assess the Student to ascertain the extent to which the Student regresses during breaks in instruction. • The Parent disagrees with the evaluations and reevaluations conducted yak 6 See exhibit A, pages 4-9.
[7] This is the related educational classification.
[8] The District must pay a provider(s) of the Parent’s choosing at a market rate, at the time the services are provided, to be determined by the “implementation unit” of the District, in consultation with the Parent and/or their provider(s). These various hours of services shall be utilized within 4 years of the date of this order.
[10] Ex. Q paragraph 95
[11] Ex. R paragraph 91
[12] Transcript pages 119-122