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Special Education Law
DECISIONParent PrevailedIHO Case No. 203300

New York City Department of Education, Impartial Hearing Decision

February 28, 2022·Linda S. Agoston·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 546766 - NYC: 203300

FINDINGS OF FACT AND DECISION

Case Number: [Redacted]

Student’s Name: [Redacted] ("the Student")

Date of Birth: [REDACTED’

District: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: April 28, 2021

July 28, 2021

September 1 2021

September 17, 2021

October 18, 2021

November 2, 2021

November 3, 2021

December 2, 2021

December 9. 2021

January 14, 2022

Actual Record Close Date: February 18, 2022

Hearing Officer: Linda Agoston

On January 11, 2021, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act, ("IDEA") 20 U.S.C. §1415(f)(1) in the matter of [Redacted] (hereinafter "the Student"). Hearings and status conference were held on April, 28, 2021, June 2, 2021, July 28, 2021, September 1, 2021, September 17, 2021, October 18, 2021, November 2, 2021, November 3, 2021, December 2, 2021, December 9, 2021 and January 14, 2022. On January 26, 2021, at the pre-hearing conference, the Parent requested independent educational evaluations ("IEES") for Assistive Technology ("AT"), Speech and Language and Occupational Therapy ("OT") and on January 27, 2021, I issued an order that the Dept. of Education ("DOE") fund the requested IEES (Exh. XIV). The parties moved to extend the compliance date during the course of the hearing. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of the matter. Accordingly, the requests for extension of the compliance date were granted (Tr. at 194; Exh. 1-XII).

On February 18, 2022, the Parent's representative submitted her brief (Exh. XIII)). The current record close date is February 18, 2022 and the decision due date is March 5, 2022 Appended to the record of documents submitted into evidence.

The Parent alleged that the DOE failed to provide a free and appropriate public education ("FAPE") for the 2018-2019, 2019-2020 and 2020-2021 school years, ("sys") in their first due process complaint dated October 28, 2020 as (a) the DOE failed to timely and completely evaluate the Student, (b) the DOE ailed to develop and implement substantively and procedurally valid Individualized Education Plan ("IEP") for each sy alleged,(c) the DOE failed to offer the Student a timely and appropriate placement and (d) failed to follow the procedural requirements of IDEA (Exh. A at 1). The Parent filed a second due process complain for the 2021-2022 sy on September 23, 2021, as (a) the DOE failed to timely and completely evaluate the Student, (b) the DOE ailed to develop and implement substantively and procedurally valid IEP for 2021-2022,(c) the DOE failed to offer the Student a timely and appropriate placement and (d) failed to follow the procedural requirements of IDEA (Exh. L at 2). I combined both due process complaints on September 30, 2021. The Parent alleged that all of the IEPs prepared for the Student and IEP meetings during all of the school years at issue (the 2018-2019, 2019-2020,2020-2021 and 2021-2022 sys) denied her a FAPE and alleged that the IEPs included numerous substantive and procedural deficiencies that excluded the Parent from participation and denied the Student educational benefits (Exh. A at 5-6;L at 2). The IEP deficits for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 sys included inter alia the following: [Redacted] (Exh. A at 4; L at 6). The Parent challenged the goals and alleged that the teams were improperly constituted and made unilateral decisions about the IEPs and placement and failed to involve the Parent as the program and placement were predetermined and address the Student's academic delays in reading, writing and math and recommended the same placement in an Integrated Co-Teaching ("ICT") despite the lack of progress inter class for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 sys (Exh. L at 4-7) and failed to offer individualized or appropriate remote or hybrid instruction during COVID (Exh. A at 4-7).

The District did not dispute any of the factual allegations and agreed to all the relief requested by the Parent (Tr. at 50;67;207).

The Parent seeks a Final Order for the following:

  • • that the DOE has failed to provide the Student with a FAPE for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 sys and violated Section 504;
  • • that the interim order for independent evaluations is incorporated into this final order;
  • • that the DOE shall offer the Student an appropriate non-public school ("NPS") placement or in the event that such a placement is not secured in 30 days, funding for an appropriate private school as described in the neuropsychological evaluation of [Redacted], for a small, specialized school setting that can provide intensive evidence-based services for children with severe learning disabilities and language impairment with a low teacher-to-student ratio in a classroom without disruptive peers;
  • • that until the appropriate NPS placement if found that the DOE shall offer the Student [Redacted]. If the DOE is unable to secure a provider, the Parent shall be permitted to choose a SETSS provider of her choosing as long as the provider is qualified and charges reasonable market rates. If the DOE is unable to form an appropriate group of 3, all hours shall be provided on a 1:1 basis;
  • • that the Student should be provided with SLT [Redacted] and OT [Redacted];
  • • that the Student should be provided with Executive Functioning Counseling for [Redacted];
  • • that the Student should be provided with Assistive Technology including: [Redacted]
  • • that the DOE will fund the following compensatory education as follows: [Redacted];
  • • that the for any compensatory services the Parent may utilize providers of her choosing for all services awarded in the Final Order, so long as the individuals are qualified and charge reasonable market rates;
  • • that DOE shall fund transportation for any services (Exh. XIII at 16).

A hearing limited to the Parent's request for an interim order regarding independent evaluations was held on January 27, 2021, and I ordered the DOE to fund the following independent evaluations: 1) an AT evaluation, at the reasonable market rate previously paid by the Impartial Hearing Office's Implementation Unit in the last six month; 2) a Speech and Language evaluation, at the reasonable market rate previously paid by the Impartial Hearing Office's Implementation Unit in the last six months; 3) an OT evaluation, at the reasonable market rate previously paid by the Impartial Hearing Office's Implementation Unit in the last six months (Exh. XIV).

BACKGROUND

The Student is [REDACTED] years old, and has been diagnosed with a Language Disorder, Other Specified Attention Deficit-Hyperactivity Disorder, and Specific Learning Disorder with Impairments in Reading, Written Expression, and Mathematics (Exh. H at 9) and had attended [Redacted] for the 2018-2019 through 2012 2022 sys.

The Social History dated March 28, 2019, indicated that the Student entered kindergarten at [REDACTED] and that she repeat kindergarten (Exh. D at 2) and that the Student reverses her letters and numbers (Id.)

The Classroom Observation dated April 16, 2019, when the Student was in first grade at [REDACTED] and the observer indicated that the Student seemed distracted and fidgeted during instruction (Exh. E at 1)

A Psycho-educational Assessment was conducted on June 18, 2019, and the evaluator noted that the Student entered kindergarten at [REDACTED] at age five and repeated kindergarten (Exh. F at 5) and was placed in an ICT class. Her cognitive ability was assessed Wechsler Intelligence Scale for Children, Fifth Edition, ("WISC-V") ranged from Low Average to Average: Verbal Comprehension Index score was average and her Visual Spatial Index and Fluid Reasoning Index and her Processing Speed Index scores were low average (Exh. F at 3-4).

On June 18, 2019, the CSE met and developed an IEP and classified the Student with a Learning Disability and recommended a placement in an Integrated Co-Teaching (“ICT”) classroom for the second grade (Exh. B at 10). The IEP indicated that the Student performed at the Kindergarten level for reading and math (Exh. B at 14).

On June 8, 2020, the CSE met and developed an IEP and classified the Student with a Learning Disability and recommended a placement in an ICT classroom for the third grade (Exh. C at 6). The IEP indicated that the Student performed at the beginning of first grand in reading and at the end of first grade in math (Exh. C at 1).

A Neuropsychological Evaluation was conducted on the Student on December 18, 2020, January 15, 2021, and January 22, 2021, when she was in third grade at [REDACTED], at the age of [REDACTED], by [Redacted], who reviewed the Student's educational history and noted at age [REDACTED], she entered kindergarten and that even though she repeated kindergarten, she " [Redacted] " (Exh. H at 2). [Redacted] noted that the Student was evaluated by the CSE at the end of first grade and was placed in a ICT class for second grade and continued to demonstrate academic delays (Exh. H at 3). [Redacted] recommended a new school placement as the Student's "current classroom setting is not sufficient to address her needs for a multitude of reasons, including significant language difficulties and challenges with attention and executive functioning. Further, she continues to perform well below age- and grade-level expectations in all academic domains, despite being retained and receiving special education supports" (Exh. H at 9). [Redacted] the student's cognitive functioning on the WISC-V and noted that the Student's cognition scores ranged from borderline to low average and that her scores were significantly lower than the prior WISC scores and noted that the Student exhibited "significant inattention during certain tasks likely adversely impacted [her] performance" (Exh. H at 5). [Redacted] assessed the Student's academic skills and noted her "ability to read isolated sight words and decode nonsense words were well below age expectations" (Id.). [Redacted] assessed the Student's language and found her language skills were "well below age expectations" (Exh. H at 6) per the results on the Clinical Evaluation of Language Fundamentals, Fifth Edition ("CELF-5") and assessed the Student's attention and found " [Redacted] " per the Behavior Assessment System for Children, Third Edition (Exh. H at 7). [Redacted] assessed the Student's executive functioning parent and teacher ratings and per the Behavior Rating Inventory of Executive Functioning, Second Edition, that the Student had a "difficult time managing her executive functions at home and in school" (Id.). The Student academic skills were assessed and [Redacted] found that her " [Redacted], and she " [Redacted] and her " [Redacted] " on the WIAT-III: Spelling and her ability to "solve untimed math calculation problems was below age expectations on the WIAT-III: Numerical Operations (Exh. H at 8).

[Redacted] diagnosed the Student with Language Disorder, Other Specified Attention Deficit-Hyperactivity Disorder ("ADHD"), and Specific Learning Disorder with Impairments in Reading, Written Expression, and Mathematics and recommended a placement "in a small, specialized school setting that can provide intensive, evidence-based services for children with severe learning disabilities and language impairments" (Exh. H at 9).

On November 3, 2020, when the Student was in third grade, she was assessed by [Redacted] [REDACTED]. (Exh. G at 1) who used the Wide Range Achievement Test ("WRAT") to test her reading skills and the Test of Written Language ("TOWL"), to test her writing skills and the Qualitative Reading Inventory to assess the Student's reading comprehension. [Redacted] found that the Student performed at a first grade level reading comprehension, and a kindergarten level writing and a low first grade level for both spelling and decoding and a mid first grade level for math (Id.). [Redacted] recommended 700 hours of 1:1 multi-sensory tutoring using Orton Gillingham techniques to build her written language, math and reading comprehension skills (Id.).

The Speech and Language Evaluation dated April 22, 2021, was conducted on the Student at the age of approximately [REDACTED] old by [Redacted], a NYS licensed and certified Speech Pathologist, who noted that the Student stated that she preferred " [Redacted] " (Exh. I at 1). She assessed the Student's literary skills on the Word Identification and Spelling Test ("WIST") and found that the Student " [Redacted] "(Exh. I at 20). Her CELF-5 scores indicated that the Student performed " [Redacted] " (Exh. I at 22) as she " [Redacted] " (Id.). [Redacted] recommended individual SLT (3x30) per week and compensatory SLT for 414 hours with no expiration (Exh. I at 23).

On May, 20, 2021, a comprehensive OT evaluation was conducted by [Redacted] when the Student was [REDACTED] old. [Redacted] assessed the Student's " [Redacted] obtained from the Bruininks-Oseretsky Test of Motor Proficiency, Second Edition and her [Redacted] (Exh. J at 31[REDACTED] recommended that the Student receive individual OT (2x30) per week and push-in OT for 30 minutes per week, on a 12 month basis. (Exh. J at 32).

On June 4, 2021, an AT evaluation was conducted when the Student was [REDACTED] years old by [Redacted], who found that the Student had "several challenges related to her ability to be independent while reading and writing" and recommended "Microsoft Surface Pro with the Surface pen... to increase her skills in the areas of reading, writing and comprehension." (Exh. K at 16).

[Redacted], a holder of a postdoctoral fellow in pediatric neuropsychology and a doctorate in School and Clinical Psychology and employed by [Redacted] r to provide neuropsychological evaluations for children with ADHD, learning disabilities and autism, testified that she conducted the neuropsychological evaluation for the Student (Exh. H) in January 2022, and noted that the Student had received some support from the DOE in the ICT class, but despite repeating kindergarten the Student was significantly behind in all areas of reading, writing and mathematics (Tr.85).

[Redacted] stated that while cognitive assessments revealed that the Student possessed broadly intact cognitive abilities, her academic performance was significantly below grade level as she was in fourth grade, but struggled with basic word reading and decoding and that her writing was very impaired and that the Student had not yet mastered the simplest math skills (Tr. 87;99-100). She recalled that the Student demonstrated " [Redacted] " (T.89).

[Redacted] n opined that the Student did have the cognitive capacity to learn and experience academic success; however, the Student must receive the supports to address her deficits as her current ICT setting was not sufficient to meet her significant language difficulties and challenges with attention and executive functioning (Exh.H at 9; Tr.97). She stressed that without the correct support that the Student's self-esteem would decline and the Student would experience depression and anxiety (Tr.102).

[Redacted] stated that she diagnosed Student with Language Disorder, ADHD, and Specific Learning Disorder with Impairments in Reading, Written Expression, and Mathematics (Tr.105) and recommended more special education programming through school to bring the Student to grade level in a specialized school setting (Tr. 105-106) as well as 15 hours per week of individual SETSS or small group of no more than three for SETSS to receive individualized, evidence-based support and that the Student would require up to [Redacted] hours of compensatory academic services to make up for the missed academic instruction (Tr.108-113).

On cross [Redacted] stated that the number of compensatory hours was in addition to the 15 hours SETSS per week for all core academic subjects (Tr.122).

[Redacted], a holder of a master's degree in special education and the founder of [Redacted] [REDACTED] for the past 17 years that provided 1:1 tutoring to approximately 200 students with special education needs, testified and stated by Affidavit that the Student's spelling and decoding was assessed on November 2, 2020 and she found that the Student performed at a first grade level reading comprehension, and a kindergarten level writing and a low first grade level for both spelling and decoding and a mid first grade level for math (Tr. at 228; Exh. M at 2).

[Redacted] opined that with support that the Student had the potential to bring her reading, writing and math to her actual grade level as she had success with children with similar learning deficits as the Student (Tr. at 233). She recommended [Redacted] hours of 1:1 Orton Gillingham methodology tutoring to address her deficits (Exh. M at 2).

[Redacted], a NYS licensed and certified OT provider, testified and provided an Affidavit that indicated she had evaluated the Student on May 20, 2021, (Exh. J), when the Student was in third grade at [Redacted], and found that the Student demonstrated deficits in fine motor skills, gross motor skills, visual perceptual skills, and executive functioning (Exh. P at 12) and found that the Student also exhibited sensory motor impairments that contributed to inattention, motor planning, as well as overall coordination and organization and noted that the Student had not been receiving any OT (Exh. P at 2).

[Redacted] stated that the Student was unable to write her last name, home address, birthday, or parent’s phone numbers (Tr. 279; Exh. P at 4) that she had decreased [Redacted] eye movement and recommended larger-type books (Exh. P at 2:Tr. at 278). She stressed that AT would help the Student as would keyboarding and word prediction to enable her to participate at the same speed as her classmates (Exh. P at 13;Tr.289) and recommended OT sessions twice per week for 30 minutes per session and once weekly push-in OT on a 12-month basis and also recommended [Redacted] hours of compensatory OT to make up for the missed OT session (Exh. P at 12).

[Redacted], a NYS licensed and certified Speech Pathologist testified and provided Affidavits (Exh. N,O) for her AT and SLT evaluations (Exhs. K,I) and stated that she evaluated the Student for speech and language on April 22, 2021, (Exh. I) when the Student was [REDACTED] and found that she was attending school remotely without any supports from her ICT classroom (Exh. N at 2).

[Redacted] found that the Student had an underlying phonological disorder especially when coupled with her sound-symbol knowledge deficit (Exh. N at 8) and that she used formal assessments and she found that the Student demonstrated moderate to severe delays in language functioning, receptive language, and expressive language and recommended SLT three times per week for 30 minutes per session and [Redacted] hours of compensatory SLT to address the DOE's failure to provide SLT (Exh. I).

[Redacted] stated that she also evaluated the Student on June 4, 2021, (Exh. K) for AT intervention to access the curriculum and recommended [Redacted] to increase reading comprehension, [Redacted] reader scanning pen, [Redacted], and [Redacted] (Exh. O at 8;Tr. at 310) [Redacted] recommended [Redacted] hours of training for the Student and her Parent and the school staff to ensure confident access to these tools (Exh. O at 9).

FINDING OF FACT, CONCLUSION OF LAW

Under IDEA, New York State law and both the federal and State regulations, the right to a FAPE is guaranteed. There is no obligation on the part of the school district to provide the best education for the student but that education must be appropriate so that there is an opportunity for the student to make progress in his/her education. States receiving federal funds are required to provide "all children with disabilities" a "free and appropriate public education" (20 U.S.C. § 400[d][1][A]).(Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 122 [2d. Cir. 2007]). FAPE consists of specialized education and related services designed to meet a student's unique need, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). 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]).

To meet its burden of showing that it had offered to provide a FAPE to a student, the board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]). As for the program itself, the Second Circuit has observed that "'for an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression'" (Weixel v. Bd. of Educ., 287 F.3d 138, 151 [2d Cir. 2002], quoting M.S. ex rel. SS. V. Bd. of Educ. of the City Sch. Dist. of the City of Yonkers, 231 F.3d 96 at 103 (2d Cir. 2000); see Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 at 130 (2d Cir. 1998).  This progress, however, must be meaningful; i.e., more than mere trivial advancement (Id. at 130). The student's recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

The Court in Rowley also observed that states are not required under IDEA to maximize every disabled child’s potential (Rowley, 458 U.S. at 198). The Second Circuit further observed that the IDEA is not intended to "secure the best education money can buy" or "guarantee any particular level of education" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]) (internal citations and quotation marks omitted).

For tuition reimbursement cases 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. Dept. 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]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007] aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]); Bd. of Educ. v. Schaefer, 923 N.Y.S.2d 579, 56 IDELR ¶ 234 (App. Div. 2011).

The burden of both production and persuasion in an administrative hearing challenging the appropriateness of an IEP is on the Department of Education. N.Y. Educ. Law §4404[1][c]. The Parent's attorney asserted that the "DOE bore the burden of proof of both production and persuasion as to (a) whether FAPE was provided to [REDACTED] and (b) questions relating to relief, as the parent was not seeking tuition for a unilateral placement in a private school. N.Y. Educ. Law § 4404; see also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 016);see also Application of a Student with a Disability, Appeal No. 11-032 Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091" (Exh. XIII at 9).

I find that the DOE representative stated that the DOE representative was not going to put on a case (Tr. at 51;67). I find that the DOE representative stated that the DOE failed to provide a FAPE for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 sys and agreed that the Parent was entitled to all the relief requested by the Parent (Tr. at 209). I find that the DOE did not meet its burden on any of the issues raised in the due process complaint.

Accordingly I find that a FAPE was not offered for the 2018-2019, 2019-2020, 2021-2022 and I further find that the deprivation of a FAPE for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 sys impeded the Parent's substantive and procedural rights under the IDEA, and significantly impeded the Parent's opportunity to participate in the provision of a FAPE to her daughter.

I find that the Student was entitled to funding for an appropriate non-public school placement in a small specialized school setting that can provide intensive evidence-based services for children with severe learning disabilities and language impairment with a low teacher-to-student ratio in a classroom without disruptive peers as described in the neuropsychological evaluation by [Redacted] (Exh. H at 9). I find that the first prong of the test has already been satisfied and I find that the District did not contest that the Parent failed to cooperate and in the absence of evidence demonstrating that the Parent failed to cooperate in the development of the IEP or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim tuition reimbursement. Application of a Student with a Disability, No. 04-049.

The Parent's attorney argued that the compensatory "education is an appropriate remedy when, as here, a student does not receive a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed. Appx. 411 (2nd Cir. 2010) (citing Burr v. 11 Ambach, 863 F.2d 1071, 1078 (2d Cir.1988)); parent of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (C.A.D.C. 2005); Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132. Further, students denied pendency are entitled to make-up services. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. October 30, 2008)" (Exh. XIII at 11). I agree and find that compensatory education and equitable relief were also available for Section 504 violations.

The Parent's attorney asserted that the DOE improperly placed the Student in an ICT program, without creating and IEP to meet her needs and stressed that the Student [Redacted] " (Exh. XIII at 14). I agree.

The Parent's attorney asserted that the "Second Circuit has noted that, while the IDEA does not compel a hearing officer to provide a day-for-day or an hour-for-hour compensation for time missed, that type of relief is appropriate absent any evidence that it is 'over-compensatory.' Melvin By and Through Martell v. Town of Bolton School Dist., 100 F.3d 944 (2nd Cir. 1996) (it would be a rare situation where compensatory education would not be warranted). Further, the Second Circuit has approved the individualized approach adopted by the D.C. District Court, which found that compensatory education should serve as a 'surrogate for the education that a student should have received during periods when his IEP was so inappropriate that he was effectually denied a FAPE.' See P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir.2008) (citing Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (C.A. K.S. 2005))(Exh. XIII at 12).

I find that the Parent has met her burden of proof with respect to the request for a NPS placement and compensatory services and for the lack of FAPE for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 sys under the Burlington/Carter test, and I find that the Parent has met her burden for compensatory education and equitable relief under Section 504. I note that the DOE representative did not dispute the amount as calculated by the Parent for the lack of FAPE for the 2018-2019, 2019-2020, 2020-2021 and the 2021-2022 sys. I further note that the DOE representative did not raise the affirmative defense of Statute of Limitations at the hearing.

ORDER

Parent seeks a Final Order for the following:

  • • that the DOE has failed to provide the Student with a FAPE for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 sys and violated Section 504;
  • • that the interim order for independent evaluations is incorporated into this final order;
  • • that the DOE shall offer the Student an appropriate NPS placement or in the event that such a placement is not secured in 30 days, funding for an appropriate private school as described in the neuropsychological evaluation of [Redacted] for a small, specialized school setting that can provide intensive evidence-based services for children with severe learning disabilities and language impairment with a low teacher-to-student ratio in a classroom without disruptive peers.
  • • that until the appropriate NPS placement if found that the DOE shall offer the Student [Redacted] hours per week of push-in/pull-out SETSS in an ICT setting (preferably [Redacted] hours push-in and [Redacted] hours pull-out), [Redacted] hours shall be provided on a 1:1 basis and the remaining [Redacted] hours of SETSS in a small group (maximum ratio of 3:1). If the DOE is unable to secure a provider, the Parent shall be permitted to choose a SETSS provider of her choosing as long as the provider is qualified and charges reasonable market rates. If the DOE is unable to form an appropriate group of 3, all hours shall be provided on a 1:1 basis;
  • • that the Student should be provided with SLT ([Redacted] ) and OT ([Redacted] ) and 1x30 ([Redacted] in) at school;
  • • that the Student should be provided with Executive Functioning Counseling for 45-minute sessions weekly at reasonable market rate by a provider of the Parent’s choosing;
  • • that the Student should be provided with AT including: [Redacted] and [Redacted] hours of AT training:
  • • that the DOE will fund the following compensatory education as follows: [Redacted] hours of 1:1 Tutoring; [Redacted] hours of SLT and [Redacted] hours of OT;
  • • that the for any compensatory services the Parent may utilize providers of her choosing for all services awarded in the Final Order, so long as the individuals are qualified and charge reasonable market rates;
  • • that DOE shall fund transportation for any services (Exh. XIII at 16).

LINDA AGOSTON, ESQ.

Impartial Hearing Officer

Dated: February 28, 2022

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.

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 26, 2021

  • • Decision on Extension, 1/26/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON APRIL 28, 2021

  • • Decision on Extension, 4/4/21, 1 p. IHO
  • • Decision on Extension, 4/28/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JUNE 2, 2021

  • • Decision on Extension, 6/2/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JULY 28, 2021

  • • Decision on Extension, 7/1/21, 1 p. IHO
  • • Decision on Extension, 7/28/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 1, 2021

  • • Decision on Extension, 9/1/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON SEPTEMBER 17, 2021

  • • Impartial hearing request, 10/28/20, 9 pp. Parent
  • • Consent for initial provision of services, IEP, PWN, for 2019, Parent 6/18/19 and 13 6/26/19, 20 pp. Parent
  • • IEP for the 2020 school year, 6/8/20, 12 pp. Parent
  • • Social history evaluation, 3/28/19, 2 pp. Parent
  • • Classroom observation, 4/9/19, 2 pp. Parent
  • • Psychoeducational evaluation report, 20 6/18/19, 11 pp. Parent
  • • Letter from [Redacted] [REDACTED], 11/3/20, 1 p. Parent
  • • [Redacted] at [Redacted] a neuropsychological evaluation, 12/9/20 -1/22/21, 25 pp. Parent
  • • [Redacted] speech and language evaluation, 3 4/22/21, 26 pp. Parent
  • • [Redacted] occupational therapy evaluation, 5/20/21, 35 pp. Parent
  • • [Redacted] assistive technology evaluation, 8 6/4/21, 19 pp. Parent
  • • Decision on Extension, 9/17/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON OCTOBER 18, 2021

  • • Impartial hearing request, 9/23/21, 9 pp. Parent
  • • Decision on Extension, 10/18/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON NOVEMBER 2, 2021

  • • Decision on Extension, 1/2/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 2, 2021

  • • Impartial hearing request, 10/28/20, 9 pp. Parent
  • • Consent for initial provision of services, IEP, PWN, for 2019, Parent 6/18/19 and 13 6/26/19, 20 pp. Parent
  • • IEP for the 2020 school year, 6/8/20, 12 pp. Parent
  • • Social history evaluation, 3/28/19, 2 pp. Parent
  • • Classroom observation, 4/9/19, 2 pp. Parent
  • • Psychoeducational evaluation report, 20 6/18/19, 11 pp. Parent
  • • Letter from [Redacted] [REDACTED], 11/3/20, 1 p. Parent
  • • [Redacted] at [Redacted] neuropsychological evaluation, 12/9/20 -1/22/21, 25 pp. Parent
  • • [Redacted] speech and language evaluation, 3 4/22/21, 26 pp. Parent
  • • [Redacted] occupational therapy evaluation, 5/20/21, 35 pp. Parent
  • • [Redacted] assistive technology evaluation, 8 6/4/21, 19 pp. Parent

DOCUMENTATION ENTERED INTO THE RECORD ON DECEMBER 9, 2021

  • • Decision on Extension, 12/9/21, 1 p. IHO

DOCUMENTATION ENTERED INTO THE RECORD ON JANUARY 14, 2022

  • • Impartial Hearing Request in Case # 218265 09/23/2021, 11 pp. Parent
  • • Affidavit of [Redacted] 11/30/202,1 3 Parent
  • • Affidavit of [Redacted], M.S. Ed, M.S., CCC-SLP, Regarding Speech and Language, 1/12/22, 9 pp. Parent
  • • Affidavit of [Redacted], M.S. Ed, M.S., CCC-SLP, Regarding Assistive Technology, 1/12/22, 9 pp. Parent
  • • Affidavit of [Redacted], OTR/L Undated, 14 pp. Parent
  • • Decision on Extension, 1/14/22, 1 p. IHO

POST HEARING SUBMISSION

  • • Parent's Findings of Fact and Closing Statement, 2/18/22,16 pp. IHO
  • • Interim Order on Independent Evaluations, 1/27/21, 1 pp. IHO