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CASE NUMBER: 546316 - NYC: 202866
FINDINGS OF FACT AND DECISION
Case Number: 202866
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou
Date of Filing: 10/16/2020 (Amended DPC: 05/27/2021)
Hearing Requested by: Parent(s)/Guardian(s)
Date of Hearing: 04/13/2021; and 03/02/2022
Record Close Date: 04/02/2022
Date of Decision: 04/16/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 13, 2021
For the Student:
REDACTED (hereinafter referred to as “Parents’ representative”)
REDACTED (hereinafter referred to as “Parents’ Witness 1”)
REDACTED (hereinafter referred to as “Parents’ Witness 2”)
For the Department of Education (“DOE”):
REDACTED, District Representative (hereinafter referred to as “District’s representative 1”)
REDACTED, District Representative 2
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 02, 2022
For the Student:
Parents’ representative
REDACTED (hereinafter referred to as “Parents’ Witness 3”)
Parents’ Witness 2 For the DOE:
REDACTED (hereinafter referred to as “District’s representative 3”)
REDACTED (hereinafter referred to as “District’s representative 4”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.
On October 16th, 2020, the Parents, through the Parents’ representative, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA. I was appointed on January 27, 2021, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC, concerning the special education program of the Student.
At a status conference (“SC”) held on March 15, 2021, the Parents’ representative stated that the Parents were seeking a neuropsychological evaluation, an occupational therapy (“OT”) evaluation and an assistive technology evaluation by way of an interim order (T. P59, L7-15).
A limited hearing was scheduled for March 25, 2021 (T. P3, L1-3) to hear the Parents’ request for an interim order for Independent Educational Evaluations (“IEEs”), which the Parents had requested in the DPC (Exhibit P-A-12; par. c). The limited hearing was adjourned to April 13, 2021.
At the limited hearing, Parents’ representative stated that the Parents were only seeking the neuropsychological evaluation and the OT evaluation (i.e., the assistive technology evaluation was no longer being sought by way of an interim order), but the Parents reserved the right to pursue the remaining IEEs as part of the main relief in the case. District’s representative 1 confirmed that entitlement for both evaluations were not in dispute, just the rates. An interim order for the two IEEs was granted on April 14, 2021 (Exhibit P-G). These were subsequently obtained and are included in the Parents’ disclosed documents (Exhibits P-Q and P-R).
The DPC was amended on or about May 27, 2021 (Exhibit-P-OO). The IH was held on March 02, 2022 to determine the claims set out in the Parents’ representative’s amended DPC (“ADPC”) concerning the special education program of the Student.
JURISDICTION
A decision in this matter is being rendered, pursuant to the IDEA[1], and its implementing regulations[2], and the New York State Education Law[3], and its implementing regulations[4].
PARTIES’ POSITIONS AND CASES PRESENTED
DOE:
At a SC held on November 12, 2021, the District’s representative 2 confirmed that the DOE was not putting on a case in the sense that it would not be calling witnesses, but that it intended to submit documentation for admission and rest on the documents (T. P185, L1-7). This was confirmed again at the IH (T. P219, L14-25).
The DOE, through District representative 3, submitted documents in support of the DOE’s case. The proposed exhibits were admitted into evidence after confirming with Parents’ representative that there were no objections to any of the documents being admitted into evidence, although a limited purpose objection was noted to Exhibit DOE-15, which is on record (T. P206, L4-25; P207; P208, L1-5).
In an opening statement at the IH, District representative 3: Asserted that the Student was not entitled to a Free and Appropriate Public Education (“FAPE”) as the Student was parentally placed for all the school years at issue, and is only entitled to equitable services; summarized what was (and was not) offered for each school year; objected to certain claims in the ADPC; and requested that, if an award for services or a bank of hours should be awarded, certain conditions should apply (T. P209, L22-25; P210-11; P212, L1-8).
Parents:
The Parents, through the Parents’ representative, submitted documents in support of the Parents’ case.
Some of the proposed exhibits were admitted into evidence after confirming with the District’s representative 3 that there were no objections from the DOE to those documents being admitted into evidence (T. P66, L15-25; P67, L1-16; P204, L10-25; P205, L1-7 & 11-17; P252, L7-16). There was an objection raised by District representative 3 to several proposed Parent exhibits (T. P203, L20-22). An agreement was reached to not include the exhibits in question as part of the record but to mark them for identification purposes only (T. P245, L15-25; P246-8; P249 L1-2). A list of the documents admitted into evidence (and those marked but not admitted to the record as per the agreement reached) is provided at the end before the Appendix.
Parents’ representative requested that a negative inference be drawn due to the failure of the DOE’s witnesses, who were under subpoena for the IH[5], to appear (T. P209, L10-14) (Exhibit IHO-III).
Parents’ representative presented the testimony of two witnesses[6] by way of affidavit (Exhibits P-T and P-NN). The deponents to the affidavits were required for cross-examination and/or clarifying questions and appeared at the IH for that purpose.
In an opening statement at the IH, Parents’ representative: Asserted that the DOE failed, both substantively and procedurally in several ways to offer the Student a FAPE for three school years, also connecting the asserted failures to the past events; asserted that there was a previously undiagnosed disorder and learning disabilities; asserted that Parents’ Witness 2 evaluated the Student, diagnosed the Student (“Student’s Diagnosis”) and summarized the witness’s findings and recommendations, as well that Parents’ Witness 3 evaluated the Student and summarized the witness’s findings and recommendations; and indicated the relief sought (T. P212, L13-25; P213-218; P219, 1-10).
PREVAILING PARTY
The Parents are the prevailing party and an award or Order is granted in their favor.
FINDINGS OF FACT AND DECISION
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (“IEP”) developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits[7].
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[8].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE[9]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"[10].
School districts are not required to "maximize" the potential of students with disabilities[11], but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"[12]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"[13].
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[14].
Since this case does not involve a unilateral placement or tuition reimbursement claim[15], the DOE has the burden of proof on all issues.
Students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them[16].
Under and New York State (NYS) Education Law Section 3602-c, New York State resident students are entitled to an IESP developed by the school district where the non-public school is located and the IESP must be developed in the same manner and with the same contents as an IEP. School districts are required to provide special education services pursuant to the IESP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.
Per a New York State Education Department guidance document[17]:
“The term "equitable basis" means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district. The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs. …
Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public school student would receive based solely upon his or her status as a nonpublic student...”
Further, Section 3602-c provides a Parent of a New York state resident student the opportunity to challenge an IESP through the same due process procedures offered to students who are enrolled in a district of residence.
The assertion that the Student was not entitled to a FAPE as the Student was parentally placed for all the school years at issue, and is only entitled to equitable services, is opportunistic. The DOE developed IEPs for the Student for the 2018-2019 and 2019-2020 school years and although it developed an Individualized Education Services Program (“IESP”) for the 2020-2021 school year, it informed the Parents it was calling an IEP meeting for the purpose of reviewing the results of the reevaluation, determining the Student's continued eligibility for special education services and to develop an IEP for the next school year when the Student begins kindergarten (Exhibit DOE-6). I accept the Parents’ representative’s assertions regarding the wrongful assumption made by the DOE and that there is no evidence that the Parents told the DOE that they did not want a FAPE or an IEP for the 2020-2021 school year (Exhibit IHO-II-10 & -11).
The ADPC (Exhibit P-OO) details the grounds, both procedural and substantive in nature, in terms of which Parents assert that the DOE denied the Student a FAPE. The Student’s disabilities, only recently properly diagnosed, and the impact it has had on his learning and ability to progress is well documented (Exhibits P-Q, P-R, P-T, and P-NN). It is surprising, given this evidence, that the DOE chose not to lead witnesses to prove that the Student was provided with a FAPE (or that the DOE offered the Student equitable services, had that been applicable).
Although not the Parents’ obligation in the first place, the Parents have made out a case that the DOE denied the Student a FAPE, causing a deprivation of educational benefits, or that it failed to meet its obligation to provide equitable services, and the DOE has not met its burden in this regard. The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"[18] (my emphasis). The Student did not, based on the record, receive all the mandate services and was deprived of educational benefits. I am also unable to find that the Student was adequately assessed in the earlier school years, as the evaluations that has been entered into evidence are not supported by any witness testimony that attempts to addresses the assertions of Parents’ Witness 2 or 3.
Parents’ Witness 3 testified (Exhibit P-T) that she conducted an occupational evaluation (“OT”) of the Student on June 10, 2021 and that her report was in evidence (par.10; Exhibit P-Q); the evaluation took place at the Attending School (par. 12) in an appropriate room and included formal and informal assessments (par. 12 & 13; 40-44; 56-57; 72-75)(T. P226, L6-16), clinical observation, interviews with the Student’s mother, classroom teacher and included a review of his educational records (par. 12 & 14), and a brief classroom observation (T. P227, L4-10). Regarding the Student’s struggles that were reported and observed (par. 15-17; 22; 24; 26; 29-31; 33; 35-39; 49-55; 58-60; 64-64; 68; 69; 71) (T. P233, 12-20), Parents’ Witness 3 testified how these could impact the Student or what the results indicated (par. 23; 46-48; 61-62; 67; 69; 70; 74; 76-77). Parents’ Witness 3 also testified (Exhibit P-T) as to her findings or conclusions (par. 78[19]), recommendations (par. 79-84) and goals (par. 85).
Parents’ Witness 2 testified (Exhibit P-NN) that she conducted a neuropsychological evaluation of the Student in July 2021 (par.12); which included an in person interview with the Student at her private office for approximately 6 hours (T. P253, L88-15), an interview with his mother and Special Education Itinerant Teacher (“SEIT”) (par. 13) and a document review (par. 14 & 15)(T. P256, L11-24); as well as formal and informal assessments and rating scales (par. 16). Parents’ Witness 2 testified as to the results of the assessments and how these could impact the Student or what the results indicated (par. 20-27; 32-36; 38-42; 43-47; 48-50; 51-59; 60; 63; 64; 67; 69; 70); and the Student’s struggles that were reported and observed (par. 28-31; 36; 37; 50; 54; 61-62; 65; 66; 71-73; 81). Parents’ Witness 2 also testified as to her findings or conclusions (par. 51; 68; 74-78; 86), the Student’s Diagnosis (par. 84-85); her recommendations (par. 75; 86-90) and management needs, testing and classroom accommodations proposed (par. 91).
I find that both Parents’ Witness 2 and Parents’ Witness 3 are suitably experienced and qualified to express the findings and recommendations that they expressed (Exhibits P-E-1 & -2; P-NN-1 & -2; P-T-1 & -2).
It is clear from the evidence submitted by the Parents and highlighted by the most recent evaluations (Exhibits P-Q and P-R) that:
The DOE failed to adequately assess the Student to evaluate the Student’s needs, failing to diagnose the Student’s Diagnosis sooner; failed to recommend related services, particularly OT during the 2018-2019 school year where, based upon the evaluative material before the CSE at the time (Exhibit DOE-1 to -8) and the content of the IEP (Exhibit DOE-9), such services should have been mandated; and failed to timeously or completely provide the Student with the mandated related services. In regard to the related services that were not provided during the time that the Attending School was providing remote instruction, an impartial hearing officer in recent decision was found to have mistakenly concluded that a student was not entitled to Special Education Teacher Support Services (“SETSS”) at home during school closures. On appeal, it was held that “had the district checked state guidance, it would have known that it was obligated to furnish those services during the pandemic to the maximum extent possible”[20].
While the DOE provided documents that, on the face of those documents, lend support for the assertion that the DOE was complying with its obligations under the IDEA – which has been factored in when determining the appropriate remedy – the burden is on the DOE. If, on a balance of probabilities (even if it were 50-50), the fact finder is unable to find that the student was provided with a FAPE (or equitable services, had that been applicable), the student’s parents would be the prevailing party by virtue of the DOE failing to meet its burden. I do not agree that the Parents bear a burden, as District representative 3 asserts (Exhibit IHO-I-6).
Given the testimony of Parents’ Witness 2 and 3, I am unable to find based upon the DOE documents alone, without any testimony from the evaluators and/or the CSE team members that recommended the program encapsulated in the Student’s IEPs and IESP, that the assessments conducted were appropriate and sufficient or complete, and that the program and services recommended were adequate to provide the Student with a FAPE (or that equitable services were offered, had that been applicable). Given the evaluations and direct testimony of the Parents’ Witness 2 and 3, all of which the DOE had advance notice of before the IH, the findings and conclusions of those witnesses demanded an affirmative response from the DOE. Not only did the DOE elect not to call witnesses of it’s choosing in support of its case to gainsay that evidence, it also failed to present the DOE witnesses that the Parents had subpoenaed.
The DOE has not discharged its burden in these proceedings and the Parents are entitled to relief.
APPROPRIATE REMEDY
Compensatory Services:
Parents are seeking compensatory education or compensatory services for the DOE’s failure to provide the Student with a FAPE. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE[21].
An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA[22].
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
Given the duration of the deprivation and the testimony on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e., the quantitative approach). Each domain however has been assessed according to its own merits, given that Parents’ witnesses have not used the same approach when determining recommended compensatory hours.
Parents’ representative took a position and made clear the compensatory hours that the Parents asserts the Student should be awarded with respect to the type and scope of compensatory education that would be appropriate, in the event that a FAPE deprivation were to be found (Exhibit IHO-II-22). Parents’ witnesses detailed, as part of their recommendations, compensatory related services as follows:
A bank of 138 hours of compensatory OT, as recommended by Parents’ Witness 3; and bank of 1,380 hours of compensatory 1:1 SEIT services, as recommended by Parents’ Witness 2. No evidence was led regarding the hourly rates charged by any proposed service provider for the compensatory services, but reasonable market rates are proposed.
Although no witnesses were called by the DOE to substantiate the number of compensatory hours that would be appropriate in the event that a FAPE deprivation being found, District’s representative 3 challenged the veracity of the Parents’ position through cross-examination or challenges to the testimony of Parents’ witnesses. District representative 3 asserts that “the record shows that the student is in same educational position he would have been in if he had remained in the classroom, which negates the argument that compensatory education is an appropriate remedy” (Exhibit IHO-I-3). The evidence on record does not support that assertion.
Parents’ Witness 2 confirmed in cross-examination that her calculation was based upon 10 hours of SEIT instruction for 46 weeks for three school years, where the Student should have gotten 12-month services and 10 hours week (T. P263, L2-12).
During cross-examination Parents’ Witness 3 testified: That the teacher had not discussed during their conversation that the Student was receiving OT services at the time of her evaluation, but that the teacher reported on the Student’s performance in the classroom (T. P227, L19-25); in response to the question regarding the purpose of compensatory hours that she was recommending, that the recommended compensatory hours are to help the Student “minimize his deficits so he is able to make appropriate gains and access learning” or “participate in school appropriately”, and clarified that by “appropriate gains”, she did not mean age appropriate but rather that the Student is able to make progress and become more independent and successful in what he needs to do in school (T. P231, L6-24).
Parents’ Witness 3 testified: That the recommended 138 hours are the hours that she felt the Student needs to have access to, to catch up where he would have been if he had been getting the appropriate services (T. P233, L24-25; P234, L1-8); and that she could not predict that following the 138 hours of OT recommended that the Student would be on grade level, but that it was her hope that giving the Student these consistent hours would help him to achieve some of his OT goals and he would be more independent and successful in school (T. P234, L24-25; P235, L1-6).
During re-direct Parents’ Witness 3 testified: She considered both the Student’s strengths and weaknesses in her analysis when coming up with the 138 hours of recommended compensatory education (T. P239, L20-25) and that the Student’s sensory processing challenges are impacting his attention and ability to tolerate many experiences, making learning activities and fine motor activities challenging for him; that he needs a whole body approach in terms of his sensory processing, his whole body strength, so that he is able to develop his fine motor and visual motor skills to be able to participate in learning activities in the classroom (T. P240, L1-15). She also clarified that the one hour per week was arrived at considering she was recommending two times a week for 30 minutes, which would have given the Student an hour a week for the last three years and that is how she determined the appropriate number (T.P242, L20-25; P243, L1-6).
I agree with DOE representative’s assertion that it seems improbable that both Parents’ Witness 2 and Parents’ Witness 3’s computation of compensatory services in the respective domains, which purported to rely on both a qualitative and qualitative approach (T. P266, L11-13), would perfectly align or equate, for both domains, to a qualitative computation based upon a three year denial of a FAPE, multiplied by the extended school year (i.e., 46 weeks), and the maximum amount of related services offered for each domain (i.e., 1 hour for OT and 10 hours for SEIT services) (T. P273, L14-23) (Exhibit IHO-I-5). This (which I address below), together with other equitable considerations, necessitates an adjustment to the final award of compensatory hours being granted.
The record supports a finding that not all services and mandated related services were provided to the Student and District representative 3 even concedes that some OT services may be warranted (T. P211, L20-21) (Exhibit P-S). Additionally, Parents’ Witness 2’s clarified for me that her calculation contemplated that the amount of services the Student did receive should result in a deduction from the bank that she had proposed (T. P280, L10-25, P281, L1-3).
The formulation of the various recommended hours in each domain should not disregard in its entirety the program and related services provided to the Student as a whole, over the years in issue. In analyzing the complete educational program offered in each IEP and the IESP relevant to each school year in issue, I find that although the DOE’s offering did fall short of providing the Student with a FAPE, the DOE still attempted to meet its obligations, re-evaluate the Student, revise his program as a whole, including enhancing management needs, interventions and goals compared to the prior program offered.
Services were provided for and then increased, but then reduced (and switched to SETSS); related services initially found to be unwarranted based upon evaluations conducted and relied upon the CSE team in the 2018-2019 school year, were subsequently added the following year and maintained the year after that; extended year services were initially found unnecessary based upon evaluations conducted in the 2018-2019 school year, but then added the following year, albeit removed the year after that.
The programs were not insubstantial and significant were efforts made by the DOE to provide the Student with "personalized instruction” and educational benefits, which would have contributed to address the Student’s deficits and diminish his maladaptive behaviors that interfere with skill acquisition, albeit not at a level that resulted in the DOE providing the Student with a FAPE under the regulations and/or at a level to prevent regression.
Whilst the Parents’ witnesses address the Student’s Diagnosis and the inadequacy of the recommended programs and mandated related services to provide the Student with a FAPE, their evidence is mostly relevant to the most recent school year at issue (2020-2021) given such witnesses’ recent evaluation of the Student. Whilst the Parents’ witnesses make assertions regarding prior school years, these allegations are, by and large, not backed up by specific details regarding the specific shortfalls in each school year, supporting the conclusions reached, based upon observations or testing they conducted at that time.
To illustrate the point, the fact that the Student’s OT services fell short, according to Parents’ Witness 3 in the 2018-2019 school year by 1 hour (as none were mandated) is not linked by that witness to the asserted shortfall in the program in that year that resulted from the FAPE deprivation, taking into account the Student’s present level of performance (“PLOPS”) at that time; is not linked to the asserted shortfall in the 2019-2020 school year by 1 hour in the program in that year that resulted from the FAPE deprivation (bearing in mind OT was mandated for that school year), taking into account the Student’s PLOPS at that time, and so forth. This speaks directly to District’s representative 3’s assertions (Exhibit IHO-I-6).
Given the lack of specificity and supporting evidence to substantiate the approach adopted by extrapolating, based upon their current assessments of the Student’s PLOPS, to past school years as a uniform approach, without specifically linking it to the Student’s PLOPS at that time (for each prior school year), the accuracy of such witnesses’ assessment of the asserted shortfall(s) and the accompanying recommendation for each prior school year becomes less reliable the further back one goes.
Additionally, although the DOE’s evaluations may have fallen short, a school district is not required to conduct its own evaluations in developing an IEP and recommending an appropriate program but may rely on information obtained from the Student’s private school personnel, including sufficiently comprehensive progress reports, in formulating the IEP[23]. Having regard to the contents of the SEIT’s progress report, there are numerous instances of documented progress the Student was making, resulting from the SEIT services that were being provided (Exhibit DOE-13-2; -3; & -4), who also did not recommend that the mandated services be increased (Exhibit DOE-13-5).
Furthermore, a District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of FAPE to the child[24]. The term ESY services means special education and related services that: are provided to a child with a disability i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency[25].
Based on the testing and findings in the reports on record for the 2018-2019 school year, notwithstanding the lack of supporting testimony from the DOE; the assertions in the ADPC; and the recommendations and testimony of Parents’ Witness 2 and 3, I do not find that the record supports a 12-month program to prevent regression based upon one of the methods of analysis[26] that would have required the DOE to provide ESY programming service on an individual basis to provide the Student with a FAPE during the 2018-2019 school year.
Based on the team’s findings and recommendations for the 2019-2020 school year, ESY was found necessary and recommended. The record however lacks the necessary evidentiary support, given the CSE team’s recommendation for the 2019-2020 school year, to justify removing those ESY services for the 2020-2021 school year.
The compensatory education award is accordingly based on the normal school year in calculating compensatory hours for the 2018-2019 school year, but not for the two subsequent years.
There is also authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]”. I am mindful that an overwhelming quantity of hours awarded has the potential to be burdensome.
These considerations have factored into my calculation of compensatory hours awarded as follows (rounding has been used in the calculation, where required):
- • 138 compensatory hours of OT claimed - adjusted award: 84 compensatory hours of OT being awarded (i.e., +61%), being the sum of:
- • 18/19 SY: 1 hour (2 x 30 mins) per week x 40 weeks x 0.25 = 10
- • 19/20 SY: 1 hour (2 x 30 mins) per week x 46 weeks x 0.65 = 30
- • 20/21 SY: 1 hour (2 x 30 mins) per week x 46 weeks x 0.95 = 44 Total: = 84 hours
- • 1,380 hours of compensatory 1:1 SEIT services - adjusted award: 686 compensatory hours SEIT services being awarded (i.e., +50%), being the sum of:
- • 18/19 SY: 10 hour per week x 40 weeks x 0.30 = 120
- • 19/20 SY: 10 hour per week x 46 weeks x 0.55 = 253
- • 20/21 SY: 10 hour per week x 46 weeks x 0.68 = 313 Total: = 686 hours Other than the reasons provided for adjusting the award for compensatory services and for denying part of the award (see below), I do not find any other equitable factors applicable.
Relief pursued (Exhibit IHO-II-22) that was not granted:
The failure to provide all of the mandated services and related services has been considered as an equitable factor against the DOE, when calculating the award of compensatory services to be awarded.
The award seeks to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA[27]. The purpose of compensatory education is neither to punish[28] the District nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress”[29].
If an award for “make up” services were to be provided in addition to the compensatory services award being granted, it would result in the DOE being penalized (by more than what is necessary) for its failure to comply with its obligations under the IDEA, as the compensatory services already seek to place the Student in the position that he would have been in had the district complied with its obligations under the IDEA. On the same reasoning, the awarded hours are not being reduced by actual hours provided by the DOE, as requested by District representative 3 (Exhibit IHO-I-6, note #1).
Although there is an assertion in the ADPC that the Student was declassified (Exhibit P-OO-2), the record does not support this and it was not pursued at the IH. In fact, the DOE admits that neither party disputes that the Student is a student entitled to special education instruction and services under the IDEA (Exhibit IHO-I-2). This is therefore does not need to be addressed.
An IEE is an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student[30].
If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense[31]. An IEE may be requested by parents[32], or by an impartial hearing officer[33].
If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria”[34]. The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs.
Upon the receipt of the request for an IEE, a school district must either make the evaluation available at public expense “without unnecessary delay” or must file a due process complaint requesting a hearing to “show that its evaluation is appropriate or that the evaluation obtained by the Parent is inappropriate.” The second circuit addressed a parent’s entitlement to IEEs under the IDEA in the Trumbull Bd of Educ. case[35]. In dealing with the alternative basis for the parents’ claim to IEEs based upon their disagreement with the October 2014 Triannual Evaluation, which the District Court had found to be untimely, the Court in the Trumbull Bd of Educ. case wrote the following:
“As a practical matter, a parent's right to disagree with an evaluation and obtain an IEE at public expense is tethered to the frequency with which the child is evaluated. And the IDEA establishes a logical timeframe in which a parent's right to request an IEE is actionable. "A parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted.” (my emphasis).
The Court went on to find that applied to the facts of the case, the parents’ disagreement with the October 2014 Triennial Reevaluation was not untimely, as they had asserted their general disagreement with all evaluations of the student in that case conducted before his next reevaluation had occurred in October 2017 and that the statute of limitations did not apply to parents' IEE request.
Parents’ representative asserts that Parents’ Witness 2 recommended a Functional Behavior Assessment (“FBA”) and Behavior Intervention Plan (“BIP”) (referring P-R-12) and as such, the Parents request these IEEs should be ordered at reasonable prevailing market rates consistent with the rates that the Impartial Hearing Implementation Unit pays to the providers who have been funded for IEEs or comparable providers at comparable rates.
Besides the court’s finding in the Trumbull Bd of Educ. case that an FBA is not an evaluation as the term is employed in the relevant IDEA provisions and that a parent’s dissatisfaction with an FBA does not entitle them to a publicly funded IEEs, this relief is not being awarded either under 8 NYCRR § 200.5(g)(1) or based upon my discretion exercised under 8 NYCRR § 200.5(g)(2), for two reasons: It is not being sought on the basis that the Parents are disagreeing with an FBA and BIP conducted by the DOE (even if that would be a permissible claim to pursue); and because the purpose of IEEs as expressed in the Trumbull Bd of Educ. case is to “level the playing field” between the Parents and government by securing a parent's ability to obtain an independent assessment of their child's disability if the school's falls short[36]. The IH is concluded and the purpose would no longer be served, for these proceedings.
Other than the relief set out in my Order below, I find that no basis and/or evidence in the record supports any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE shall fund the following compensatory services for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by a provider of the Parents’ own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #2 of this Order for each of the services:
- • 84 compensatory hours of OT by a New York State licensed occupational therapist; and
- • 686 compensatory hours of 1:1 SEIT Services, by a New York State licensed Special Education Itinerant Teacher, by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
- • FURTHER ORDERED that, the bank of compensatory services set out in #1 of this Order shall not expire until the expiration of 3 (three) years from the date of this Order and that the amount payable by the DOE for each of the services to the providers of the Parents’ own choosing shall be limited as follows:
- • Compensatory OT at a rate not to exceed $180 per hour.
- • Compensatory SEIT services at a rate not to exceed $200 per hour.
- • FURTHER ORDERED that, the DOE shall fund the necessary transportation costs to and from the service provider(s) providing the awarded compensatory services.
- • FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
SO ORDERED.
DATED: April 16, 2022
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1.
Consent for Initial Evaluations
08/03/2018
1
2.
Home Survey
08/03/2018
1
3.
Social History Update
08/03/2018
3
4.
Pre-k Evaluation Summary Report
08/22/2018
2
5.
Bilingual Speech Language Evaluation
08/22/2018
3
6.
OT Evaluation
08/16/2018
6
7.
Bilingual Psychoeducational Evaluation
08/08/2018
5
8.
IEP (18.19)
10/09/2018
11
9.
Child Outcome Summary
10/09/2018
8
10.
Notice of Services
10/09/2018
1
11.
Final Notice of Recommendation
10/09/2018
1
12.
IEP (19.20)
09/10/2019
17
13.
REDACTED Progress Report
01/12/2020
5
14.
Notice of IEP Meeting
02/05/2020
4
15.
IEP (20.21)
05/12/2020
10
16.
OT Service Records
2020-2021
4
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A.
IH Request
10/16/2020
14
B.
Request for Records via Fax
02/26/2021
8
C.
REDACTED Social History Evaluation
08/03/2018
24
D.
Affidavit of Parents’ Witness 2
03/26/2021
3
E.
Affidavit of Parents’ Witness 1
03/29/2021
3
F.
Order on Pendency
12/07/2020
6
G.
Interim order on IEES
04/14/2021
14
H.
DOE Document Subpoena
05/19/2021
2
I.
IEP 2018
10/09/2018
11
J.
IEP 2019
09/10/2019
17
K.
Letter to Amend IEP based on June 2020 IEP
07/06/2020
9
L.
CSE Meeting Notice
02/05/2020
3
M.
Child Outcomes Summary Form
10/09/2018
11
N.
SEIT Student Progress Report March 2020
03/10/2020
2
O.
SEIT Student Progress Report June 2020
06/10/2020
2
P.
Rationale for Extension of SEIT Services Through Summer
06/15/2020
2
Q.
Parents’ Witness 1 Speech services OT Evaluation
06/10/2021
19
R.
Neuropsychological Evaluation by Parents’ Witness 2
07/28/2021
16
S.
Service Records
04/23/2020 -
06/23/2021
4
T.
Affidavit of Parents’ Witness 3
11/22/2021
12
U.*
Webpage Procedural Safeguards Notice
(printed)
05/03/2021
6
V. *
Part B Procedural Safeguards Notice
07/2017
51
W. *
Webpage of the New York State Next Generation English Language Arts Learning Standards
(printed)
05/03/2021
4
X. *
New York State Next Generation English Language Arts Learning Standards
2017
129
Y. *
Webpage of the New York State Next Generation English Language Arts Learning Standards Crosswalks
(printed)
04/30/2021
3
Z. *
Crosswalk between P-12 ELA Common Core Learning Standards (2011) and the Revised NYS Next Generation ELA Learning Standards (2017) Main Summary
2017
14
AA. *
NYSED Kindergarten ELA Crosswalk
2017
7
BB. *
NYSED Prekindergarten ELA Crosswalk
2017
7
CC. *
Webpage of the New York State Next Generation Mathematics
Learning Standards
(printed)
05/03/2021
3
DD. *
New York State Next Generation Mathematics
Learning Standards
06/2019
171
EE. *
Webpage of the New York State Next Generation Mathematics Learning Standards Crosswalks
(printed)
04/30/2021
3
FF. * The New York State Next Generation Mathematics Learning Standards Crosswalk Documents
Undated
4
GG. *
New York State Next Generation Mathematics Learning Standards Kindergarten Crosswalk
Undated
8
HH. *
New York State Next Generation Mathematics Learning Standards Pre-Kindergarten Crosswalk
Undated
6
II. *
Webpage of the Resource Guides for School Success in Early Learning
(printed)
05/03/2021
4
JJ. *
Resource Guides for School Success in Early Learning the Pre-Kindergarten Standards
2019
81
KK. * The New York State Kindergarten Learning Standards
2019
43
LL. *
New York State Prekindergarten Foundation for the Common Core
Undated
62
MM. *
Continuum of Special Education Services Summer
2020
23
NN.
Affidavit of Parents’ Witness 2
12/03/2021
17
OO.
ADPC
05/27/2021
18
IHO EVIDENCE
Exhibit
Title
Date
Pages
IHO-I
DOE’s representative 3’s Closing Brief and Memorandum of Law for the DOE
Undated
6
IHO-II
Parents’ representative’s Memorandum of Law in Support of the Petitioner’s Requested Relief
04/01/2022
23
IHO-III
Signed Subpoenas
11/12/2021
3
APPENDIX
Redacted Information
Term Used In FOFD
REDACTED
Footnotes
[1] U.S.C. § 1400 et seq.
[2] C.F.R. § 300 et seq.
[3] Educ. Law Art. 89 § 4404 et seq.
[4] NYCRR § Part 200.
[5] The IH had initially been scheduled for December 15, 2021 but was adjourned.
[6] For the main case (i.e., not including the affidavit and testimony of Parents’ Witness 1 presented at the limited hearing held on April 13, 2021, which related to the rate being sought for the OT evaluation).
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[9] U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[12] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[13] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[14] NYS Educ. Law § 4404(1)(c).
[15] Although there is a proposed solution that refers to reimbursement of Private School tuition, if applicable, this was not pursued as a remedy (Parents’ representative’s closing brief refers – Exhibit IHO-II-22).
[16] Provisions of section 3602-c; See also 34 CFR 300.130 and 300.145-147.
[17] Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1, September 2007.
[18] Rowley, 458 U.S. at 203.
[19] At the IH Parents’ Witness 3 made a correction to this paragraph and therefore the testimony is considered, with the correction (i.e., without the words that the witness requested to be omitted) (T. P223, L16-25; P224, L1).
[20] New York City Department of Education, 77 IDELR 237 (SEA NY 2020).
[21] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[22] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[23] G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *23 [S.D.N.Y. March 29, 2013], aff'd 554 Fed. App'x 56 [2d Cir. Feb. 11, 2014]; S.F., 2011 WL 5419847, at *10.
[24] C.F.R. § 300.106[a][2].
[25] C.F.R. § 300.106[b].
[26] Regression-recoupment analysis (Cordrey v. Euckert, 17 IDELR 104 (6th Cir. 1990)); Significantly jeopardized analysis (M.M. v. School Dist. of Greenville County, 37 IDELR 183 (4th Cir. 2002)); Substantial regression analysis (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 557 IDELR 315 (5th Cir. 1986)); Additional factors analysis (Johnson v. Independent Sch. Dist. No. 4 of Bixby, Tulsa County, Okla., 17 IDELR 170 (10th Cir. 1990), cert. denied, 110 LRP 38025, 500 U.S. 905 (1991)).
[27] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[28] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].
[29] See Application of the Board of Ed. of the S.C.S.D, Appeal No. 21-065.
[30] NYCRR § 200.1(z).
[31] NYCRR § 200.5(g)(1).
[32] NYCRR § 200.5(g)(1).
[33] NYCRR § 200.5(g)(2).
[34] NYCRR § 200.5(g)(1)(iv).
[35] D.S. v. Trumbull Bd of Educ., 975 F.3d 152 (2d Cir. 2020).
[36] D.S. v. Trumbull Bd of Educ.