New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 539534 - NYC: 196255

FINDINGS OF FACT AND DECISION

Student’s Name: [Redacted]

Date of Birth: [Redacted]

Hearing Requested by: Parent

Record Close Date: 03/15/2022

Hearing Officer: Mitchell Regenbogen, Esq.

[Redacted], a minor, by and

Through his Parent, [Redacted]

FINDINGS OF FACT AND

DECISION AND ORDER

Petitioner

-against- Case No. 196255

Mitchell Regenbogen

Hearing Officer

New York City Department of Education,

Respondent.

PROCEDURAL HISTORY

On February 24, 2022, I completed an impartial hearing by telephone in Brooklyn, New York, pursuant to the Individual with Disabilities Education Act (IDEA), 20 C.F.R. 1400 et seq., regarding the special education program of [Redacted] (hereinafter referred to as “the Student”). A list of persons in attendance is appended hereto.

The proceeding was initiated at the request of the Parent by a due process complaint filed July 8, 2020, as well as amended due process complaints dated September 28, 2020, and April 5, 2021, wherein it is alleged that the New York City Department of Education (the “District”) failed to provide the Student with a free appropriate public education (FAPE) for the 2019-2020 and 2020-2021 school years. The Parent is requesting as a remedy compensatory education, a new Individualized Education Program (IEO) meeting, and transportation funding.

I was appointed as impartial hearing officer on January 4, 2021. Hearings, including a pendency hearing, were held on 11 dates between February 10, 2021, and February 24, 2022, an interim order for an independent educational evaluation (IEE) was issued on June 22, 2021, and a pendency order was issued on December 6, 2021.

BACKGROUND AND POSITION OF THE PARTIES

REDACTED is a REDACTED-year-old student who has been classified as a Learning Disability, Ex. N, and has been diagnosed with Attention-Deficit Hyperactivity Disorder (ADHD) Combined Presentation, Specific Learning Disorder (SLD) with Impairment in Mathematics, and Specific Learning Disorder with Impairments in Written Expression Ex. K, 10-11. The Student’s classification and eligibility for special education services are not in dispute. The Parent is claiming that the District did not provide a FAPE to this Student for the 2019-2020 and 2020-2021 school years. The District did not put on a case, and does not oppose compensatory relief, but asserts, without evidence, that “some of the requested relief has already been provided,” and that the Parent’s evidence is insufficient to support the requested relief. See District closing brief.

At the hearing the District offered into evidence nine documents, and eight were admitted. The District called no witnesses.

The Parents submitted an evidence package containing 14 documents, including an affidavit serving as the direct testimony of Dr. [Redacted], who conducted an independent neuropsychological evaluation of the Student pursuant to an unopposed interim order by the undersigned. Dr. [Redacted] was cross-examined by the District.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether a the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement ( NYS Educ. Law § 4404(1)(c)).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

The Parent raised multiple challenges to the committee on special education (“CSE”) actions and inactions in her due process complaints. Exs. A-C. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). Here the District called no witnesses to try to meet its burden of proving that it provided a FAPE for the school years in question. The Second Circuit has reaffirmed the position that a school district must offer witness testimony to meet its burden of proof in an impartial hearing. See, e.g., L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016) (holding that the district could not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect). I find therefore that there was absolutely no explanation, let alone a cogent and responsive explanation, for the CSE’s actions on behalf of this Student for the 2019-2020 and 2020-2021 school years.

I find that the District has not, therefore, met its burden of proof in this proceeding, and I am compelled to find that the District failed to offer the Student a FAPE for thew 2019-2020 and 2020-2021 school years.^[1]

“The IDEA allows a hearing officer to fashion an appropriate remedy.” P. ex. Rel. Mr. and Mrs. P. v. Newington Bd. Of Ed., 546 F.3d 111 (2d Cir. 2008). The Second Circuit has determined that “[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA.” Newington Bd. Of Ed., 546 F.3d 111. Within the Second Circuit, compensatory 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 Newington, 546 F.3d at 123. Further, “an award of additional services should aim to place the Student in the position he or she would have been in had the district compiled with its obligations under the IDEA. (see Newington, 546 F.3d at 123).” (emphasis added). SRO 13-048. IHOs are granted broad authority...to determine the type of relief which is appropriate considering the equitable factors present and those which will effectuate the purposes underlying IDEA.” SRO 12-033. The IDEA itself gives hearing officers broad authority and discretion to order appropriate relief. 20 USC 1415(i)(2)(C)(iii) (“basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate.”). Furthermore, compensatory education and services have been held to “carr[y] a qualitative rather than quantitative focus.” Reid v. District of Columbia, 401 F.3d 516 (D.C.Cir. 2005).

In her closing brief the Parent requests, as compensatory education, 920 hours of compensatory 1:1 tutoring (minus any hours provided under pendency) calculated at two school years for 46 weeks (extended school year) per year. The Parent contends that the request “is appropriate for the Student and consistent with unrebutted testimony by affidavit and reports of Dr. [Redacted].”

Dr. [Redacted] conducted a neuropsychological evaluation of the Student in June and July of 2021. Ex. K. She had previously evaluated the Student in 2016. Ex. H. Dr. [Redacted] is a New York state (“NYS”) licensed psychologist and pediatric neuropsychologist. Ex. L-1. She earned a Ph.D. in clinical psychology with a concentration in neuropsychology from Fordham University in 2011, an internship with Miami Children’s Hospital, and a postdoctoral fellowship at the Cleveland Clinic. Id.

Dr. [Redacted]’s clinical training encompassed developmental, neurological, medical, psychiatric, issues with special training in the evaluation of concussion/traumatic brain injury and seizures, and epilepsy. Id.

Dr. [Redacted] has a private practice where she provides neuropsychological and psychoeducational evaluations of children, adolescents, and young adults. Id. at 2. Dr. [Redacted] evaluates pediatric, adolescent, and young adult patients presenting with a wide range of neurological, developmental, and/or psychological disorders. Id. Her evaluations integrate observations, interviews, and assessment findings with evidence-based recommendations. Id. Her evaluations include a review of the student’s educational history and documents, a parent interview, a direct clinical observation, and standardized and non-standardized assessment tools. Id.

As noted above, Dr. [Redacted] had previously evaluated the Student in 2016. Ex. H. He was referred for reevaluations to assess his cognitive, academic, and social-emotional functioning in order to assist in treatment planning. Ex. L-2. As part of her evaluation, Dr. [Redacted] reviewed various documents, including the Student’s academic and medical records, parent interview, and (2016, 2017, and 2018) neuropsychological evaluation reports. Id.

Per parent report, he struggled with social norms, anxiety, sleep, emotional regulation, time management, organization, and attention. He requires one on one support to complete academic assignments. Id. at 3. Per past neuropsychological evaluations, the Student was diagnosed with ADHD, combined presentation, specific learning disability (SLD) with impairment in reading/math/written expression, Generalized Anxiety Disorder, Acute Stress Disorder, Adjustment Disorder with mixed disturbance of emotions and conduct. Id.

The Student was evaluated over two sessions. Id. He presented as a positive and engaged child. Id. He was able to maintain his disposition and effort throughout testing with some inattentive and restless behavior. Id.

To assess the Student’s intellectual functioning, Dr. [Redacted] administered the WISC-V. Ex. K, 5-6, 18. He scored in the high average (88th percentile) verbal intelligence range low average (23rd percentile) in visual-spatial intelligence, and average (66th percentile) in nonverbal reasoning skills. Ex. L-3. Furthermore, he presented with low average (12th percentile) working memory skills, very low (5th percentile) visual-motor processing speed, and a 47th percentile IQ. Id. However, his full scale IQ is not considered an adequate summary of his intellectual functioning due to the clinically significant discrepancies between indices. Id.

Based on this neuropsychological profile, behavioral observation, and record review, Dr. [Redacted] agreed with the pre-existing diagnosis of Attention-Deficit/Hyperactivity Disorder (ADHD), Combined Presentation (DSM-5 314.01), Specific Learning Disorder (SLD) with Impairment in Mathematics (Memorization of arithmetic facts and accurate or fluent calculation), and Specific Learning Disorder with Impairment in Written Expression (Spelling accuracy, grammar and punctuation accuracy and clarity or organization of written expression; DSM-5 315.2). Ex. L-5.

Dr. [Redacted] found that overall, the Student presented as a bright child who is motivated to succeed academically and socially. Ex. L-5. It is anticipated that with the appropriate educational setting and services to address his individual learning needs and concurrent interventions to minimize his ADHD symptoms and emotional stress, his academic performance will improve and he will gain greater confidence in his skills and potential. Dr. [Redacted] testified under cross-examination that the Student had not made academic gains she first evaluated him in 2016 and thus was able to recommend that he required compensatory services to make up for the District’s failure to provide him with an appropriate education. Tr. 145-147.

With regard to his educational needs, Dr. [Redacted] found that the Student currently meets criteria for special education services under the classification of “Learning Disability” given his diagnoses of SLD in Mathematics and Written Expression, which significantly interfere with his academic progress. She noted that his co-occurring ADHD symptoms are also clearly having a negative impact on his academic performance and will need to be addressed in the school setting. Dr. [Redacted] made detailed recommendations in her report the Student’s IEP classification, school placement and curriculum, classroom setting, extended school year, Special Education Teacher Support Services (SETSS), and individual academic support on written expression, math and reading, noting that these are services, including related services, that the Student should have received during the 2019-2020 and 2020-2021 school years. Ex. K.

I find Dr. [Redacted]’s testimony and report to be detailed, comprehensive, credible and persuasive. I find that the evidence is clear and convincing that the Student failed to make progress since at least 2016, as a result of the District’s failure to provide a FAPE, by both comparison to previous evaluations and by objective evidence. Tr. 145-146.

The Second Circuit has endorsed one of two different methods of calculating relief: (a) an hour-for-hour return^[2], or (b) based upon the analysis set forth in Reid ex. rel. Reid v. Dist. Of Columbia, requiring an award to “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.” 401 F.3d 516, 522-23 (D.C. Cir. 2005). See also Newington Bd. of Educ., 546 F.3d at 123; M.W., 2015 WL 5025368, at *4; E. Lyme Bd. of Educ., 790 F.3d at 457. The award must provide what the student “needs to elevate him to the position he would have occupied absent the school district’s failures.” Reid, 401 F.3d at 524.

The Parent’s requests compensatory special education consisting of 920 hours of 1:1 SETSS, less any SETSS provided during pendency, based on the two 46-week 12-month school years of 2019-2020 and 2020-2021.^[3] Contrary to the District’s assertion in its closing brief, I find that the record does support such request, based on Dr. [Redacted]’s unrebutted and uncontested report, Ex. K, and testimony, Tr. 144, that the Student should have been receiving a minimum of 10 hours per week of SETSS during the 2019-2020 and 2020-2021 school year, on a 12-month basis to avoid regression.

Here, the District bore the burden of proof of facts, liability and remedy. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; 11-091; 11-053 (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). The SRO has expressly clarified that the burden of proof is in the district even with respect to questions of the appropriate remedy; it is inappropriate for the district to fail to introduce evidence and then criticize the parent’s proposed remedy without an evidentiary submission or counter-proposal. See SRO No. 14-014.

In this regard I would note that even after Dr. [Redacted] testified, again, on cross-examination that the services she described in her report, including the SETSS, should have been provided to the Student during the two school years in question, the District did not question Dr. [Redacted] as to the number of compensatory hours that would be appropriate, and at no time did the District present any evidence, or even a suggestion, about what compensatory education would be appropriate to remedy the two-year denial of FAPE. Tr. 141-147.

Based on the foregoing, I find that the Parent has provided a basis for the requested 920 hours of compensatory SETSS, less any SETSS already provided during the applicable period.

The Parent’s second request for relief in her closing brief is for an IEP meeting to be held within 30 days of the issuance of the FOFD herein, to consider Dr. [Redacted]’s evaluation. I agree, and that is basically what the District asked for in its closing brief.

The Parent’s third request for relief in her closing brief was a direction that the District calculate what related services called for in the IEP’s for the 2019-2020 and 2020-2021 school years were not provided, provide an accounting to the Parent within 30 days, and fund a bank of applicable compensatory hours. I find that the record supports this request and I agree.

The Parent’s final request for relief in her closing brief is for the funding of transportation for the compensatory services, should transportation be necessary. I agree.

Consequently, I find that;

• • The District failed to provide the Student with a FAPE for the 2019-2020 and 2020-2021 school years, and that as a result the Student failed to progress academically;
• • The Parent has established that 920 hours of 1:1 SETSS is appropriate compensatory education, less any SETSS already provided;
• • The Parent has established that the CSE should be directed to convene am IEP meeting to consider Dr. [Redacted]’s report and recommendations;
• • The District should determine the number of hours of IEP-mandated related services that the Student should have received and did not, if any, during the 2019-2020 and 2020-2021 school years, and provide a bank of compensatory hours; and
• • The Parent has established that the District should fund transportation as required for the Student to obtain the compensatory services.

ORDER

Based on the foregoing It is hereby ORDERED that:

• • The District shall forthwith create a bank of 920 hours of 1:1 SETSS, to be used in the Parent’s discretion for the benefit of the Student within the next 48 months, to be provided by the District on demand by the Parent, or to be funded by the District using an authorized provider obtained by the Parent, at the prevailing rates paid to such provider by the District’s Impartial Hearing Implementation Unit, or comparable rates to comparable providers, for the same or similar students, provided however that the District may subtract from the 920 hours any SETSS provided pursuant to the pendency order dated December 6, 2021;
• • The CSE shall convene an IEP meeting within 30 days of the date of this Order, to consider the report and recommendations of Dr. [Redacted] set forth in the July 15, 2021, neuropsychological evaluation, and to determine an appropriate special education program for this Student, provided however that the District shall not ignore or reject any of the recommendations in the report absent articulable and evidence-based reasons therefor;
• • The District shall determine the number and type of hours of IEP-mandated related services of physical therapy, occupational therapy and counseling that the Student should have received and did not, if any, during the 2019-2020 and 2020-2021 school years, and provide a bank of the missing compensatory hours to be used at the Parent’s discretion within the next 24 months, to be provided by the District on demand by the Parent, or to be funded by the District using an authorized provider obtained by the Parent at the prevailing rates, for 1:1 service, paid to such provider by the District’s Impartial Hearing Implementation Unit, or comparable rates to comparable providers, for the same or similar students; and
• • The District shall provide transportation, either through car service, reimbursement for car service, or public transportation, as needed in order for the Student to obtain the above compensatory services.

Dated: March 25, 2022

______________________________

Mitchell Regenbogen, Esq.

Impartial Hearing Officer

Appendix of Attendees (by telephone)

For the Parent:

[Redacted], Esq.

Dr. [Redacted], Witness

For the District:

[Redacted], Representative

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] While the Parent argues in her closing brief that the IHO should award compensatory education as an equitable remedy for the 2015-2016, 2016-2017, 2017-2018, and 2018-2019 school years, I find that the due process complaint alleges a violation of only the 2019-2020 and 2020-2021 school years, and the complaint further acknowledges that a prior IHO issued a Findings of Fact and Decision (FOFD) for the 2015-2019 school years.

[2] See Melvin By and Through Martell v. Town of Bolton School District, 100 F.3d 944 (2d Cir.1996); Student X.,2008 WL 4890440, at *23.

[3] The Parent’s request for relief in its closing brief is significantly different than the relief requested in the now-almost one year old second amended due process complaint, and I will deem the additional requests for relief in that complaint to be withdrawn. Also, the Parent now requests 920 hours of “tutoring,” which I take to mean SETSS, based on her reference to the pendency order, which provided for 1:1 SETSS, and to Dr. [Redacted]’s report, which recommends a minimum of 10 hours of SETSS per week. Ex. K.