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CASE NUMBER: 549015 - NYC: 205407
FINDINGS OF FACT AND DECISION
Case Number: 205407
Student’s Name[1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parents”)
Request Date/Date Complaint Filed: 01/04/2021
Date(s) of Hearing: 03/30/2022
08/05/2022
10/12/2022
Actual Record Closed Date: 12/12/2022
Date of Decision: 12/12/2022
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 30, 2022
For the Student:
REDACTED (hereinafter referred to as “Parents’ representative 1” and “Parents’ representative 2”, respectively)
For the Department of Education (“DOE”):
REDACTED (hereinafter referred to as “District’s representative 1”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 5, 2022
For the Student:
Parents’ representative 1 and Parents’ representative 2
REDACTED (hereinafter referred to as “Parent”)
For the DOE:
REDACTED (hereinafter referred to as “District’s representative 2”)
REDACTED (hereinafter referred to as “District’s Witness”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 12, 2022
For the Student:
Parents’ representative 1 and Parents’ representative 2
Parent
REDACTED (hereinafter referred to as “Parents’ Witness 1”)
REDACTED (hereinafter referred to as “Parents’ Witness 2”)
For the DOE:
District’s representative 2
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”). Student’s eligibility for special education supports and services is not in dispute.
On December 31, 2020, Parents, through Parents’ representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Exhibit IHO-I). I was appointed on November 17, 2021, to preside over Parents’ claims 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 concerning Student’s special education program.
At the prehearing conference (“PHC”) held on December 1, 2021, it was brought to my attention by Parents’ representative 2 that there was a “corrected DPC” dated November 2, 2021, which was emailed to me and the District by Parents’ representative 2 (Exhibit IHO-II). At the PHC I confirmed with Parents’ representative 2 that the contents of the corrected DPC had been altered or amended from the original DPC to include more than just a correction (T. P5, L18-22). I requested at the PHC that it be dealt with as an amended DPC. I agreed to send the corrected DPC to the case manager, so that it could be processed as an amended DPC, which I did on the same day (T. P5, L22-25; P6, L1).
I requested the District’s representative at the PHC to determine whether the District would be accepting or rejecting the amendment (T. P6, L2-6). In the former event, the case would enter the resolution period again. In the latter event, I informed the parties that we could then arrange a time for the parties’ representatives to make representations regarding the amendment and then IHO approval would either be granted or denied (T. P6, L7-25; P7, L1-7).
The corrected DPC was processed as an Amended DPC (“ADPC”) on December 2, 2021. I received notification on January 10, 2022 that the amended had been accepted and that the new 30-day resolution period would start on the day the amendment request was approved.
At a status conference held on February 16, 2022, Parents’ representative 1 indicated that the Parents were seeking an interim order for Independent Educational Evaluations (“IEEs”), and District’s representative indicated that the DOE would be seeking an order to dismiss the ADPC (T. P12, L22-25; P13, L1-2).
After receiving representations from the parties’ representatives as to whether the motion to dismiss should be addressed first (District’s request) or both motions should be heard together (Parents’ representatives’ request), I ordered that both motions would be heard together. The parties’ representatives’ representations (T. P12, L13-25; P13-17; P18, L1-23) and my ruling (T. P17, L24-5; P18-20; P21, L1) is on record and therefore not repeated in this decision.
Dates were agreed for filing the parties’ respective motions and replies, as well as a date for hearing oral argument (T. P21, L17-21). Parents’ representative filed a Motion for Interim IEEs, and District’s representative filed a Motion to Dismiss the Parents’ ADPC (Exhibits IHO-III and -IV, respectively) by the agreed date. Parents’ representatives filed their opposition to the District’s Motion to Dismiss and District’s representative filed a response to the Parents’ representatives’ Motion for Interim IEEs (Exhibits IHO-V and VI, respectively) by the agreed date.
Oral argument was heard on March 30, 2022 at a limited hearing scheduled for that purpose. Parents’ representatives put forward two proposed exhibits for admission to the record in advance of the limited hearing. After hearing from both parties, I admitted to the record the first, described as a “NYC DOE IEP” dated March 2, 2020 (9 pages) (Exhibit P-A) to the record. The second, described as a “NYC DOE IEP” dated March 15, 2022 (15 pages) was excluded at that time based on relevance[2]. A third document was presented during the hearing on March 30, 2022, being a ten-day notice (“TDN”) dated December 30, 2020 (2 pages). I admitted the TDN to the record over an objection from District’s representative 1. Both parties elected not to call any witnesses to testify in support of the relief sought in their respective motions. Both motions were dismissed in a written order dated April 8, 2022 (Exhibit IHO-VIII).
Parents, through Parents’ representative firm, filed another amended DPC on May 25, 2022 (Exhibit IHO-VII). At a status conference held on May 31, 2022, I confirmed with the representative appearing for the District at that conference that the DOE was not accepting the Parents’ proposed amendment. Parents’ representative 2 sought IHO approval/permission at the status conference to be granted for the Parents’ proposed amendments.
After hearing from the parties, considering the proposed changes, the convenience of the parties, and the interest of judicial efficiency, a written order granting leave to amend the ADPC in accordance with the second proposed amended DPC (hereinafter referred to as the “Operative ADPC”) was issued pursuant to 34 C.F.R. § 300.508 (d)(3)(ii); 8 NYCRR § 200.5(i)(7)(i)(b) (Exhibit IHO-IX).
It is asserted in the Operative ADPC that based on various procedural and/or substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parents are seeking, inter alia, a finding that the DOE denied Student a FAPE and compensatory services.
JURISDICTION
On April 5, 2022 I received an objection from Parents’ representative 2 by email as to the Office of Administrative Trials & Hearings or OATH’s jurisdiction or authority over the claims in the DPC (Exhibit IHO-XI) and responded thereto by email on April 8, 2022 (Exhibit IHO-XII). The objection was not raised again or pursued at the IH[3]. A decision in this matter is being rendered, pursuant to the IDEA[4], and its implementing regulations[5], and the New York State Education Law[6], and its implementing regulations[7].
Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”[8] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to OATH the authority to adjudicate due process complaints under Section 504.[9]
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative confirmed at the IH that the DOE was putting on a case and would be calling one witness and proposing seven documents for admission to the record. The seven exhibits were admitted to the record after confirming with Parents’ representatives that there were no objections thereto (T. P176, L3-13; P181, L8-12).
In an opening statement, District’s representative inter alia asserted: The DOE developed an IEP for Student on March 23, 2020, indicating what the program entailed; that Student’s teacher for the SY in issue would testify as to the implementation of Student’s program and progress throughout the SY; that the scope of the IH is limited to the four corners of the DPC, which does not contain any allegations or cognizable claims and should be dismissed; that there is no jurisdiction over the systematic allegations contained in the DPC; and that the DOE has provided Student with a FAPE (T. P179, L13-25; P180, L1-20).
Parents, through the Parent’s representative, submitted two additional proposed exhibits in support of the Parents’ case, which were admitted to the record at the IH (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P212, L8-11, P213, L14-15; P214, L9-25). Parents’ case was also supported by three witnesses, namely Parents’ Witness 1, Parents’ Witness 2, being the two evaluators that evaluated Student as well as Parent.
In an opening statement, Parents’ representative 1 inter alia: discussed Student’s developmental delays and diagnosis; indicated the supports and recommendations that the Student requires; referenced the program recommended in the Student’s IEP; asserted that nowhere on the face of that IEP did it provide that Student would receive remote or hybrid services and that’s what this case was about, given that in mid-March of 2020 the District switched to a remote learning environment without notice or consent of Parents thereby constituting an improper change to Student’s placement under the IDEA; asserted that there was no plan put in place for Student and Student did not receive any in person services, including related services for the remainder of the SY, and was denied Student’s management needs as documented in the IEP; informed that the evaluations obtained by Parent showed substantial regression, and that Parents were seeking compensatory services for the services denied (T. P215, L11-25, P216; P217, L1-18).
Both parties filed closing briefs (Exhibits IHO-X, and IHO-XI).
PREVAILING PARTY
Parents are the prevailing party, and an award or Order is granted in favor of Parents.
LEGAL FRAMEWORK
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 Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits[10]. 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[11].
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[12].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"[13].
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[14]. The term ESY services means special education and related services that: are provided to a child with a disability i) beyond the regular school year (“SY”) 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[15].
Section 504
Section 504 prohibits discrimination against qualified students with a disability.[16] Section 504 states, “[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”[17]
Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”[18]
Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”[19]
Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”[20] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.[21] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.[22]
Districts must conduct “periodic” reevaluations of students who are eligible under Section 504. Compliance with the IDEA’s reevaluation procedures is one way of complying with this requirement. [23]
When making decisions about services and supports for a student, Section 504 requires that districts “draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.”[24] Additionally, districts must ensure that information from these sources is “documented and carefully considered.”[25] Placement decisions must also be made “by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.”[26]
Burdens
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 – which is not applicable in this case.[27]
Parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.[28]
FINDINGS OF FACT AND DECISION
The disputes in this case do not revolve around the program developed for Student but rather whether the DOE implemented the program that was developed. In short, Parents are asserting that by unilaterally switching from in person instruction to a remote program during the Covid-19 pandemic and the school closures, without following the procedures provided for in the IDEA to effectuate a permissible change of Student’s program, without notice to or consent being obtained from Parents, the DOE denied Student a FAPE.
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP[29]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material"[30].
In seeking to meet its burden, the DOE disclosed: Student’s IEP that was prepared pursuant to an IEP meeting held on March 23, 2020 (Exhibit DOE-1-16), which has a projected implementation start date from March 30, 2020 and a projected annual review date of March 23, 2021 (Exhibit DOE-1-1); the prior written notice that related to the program developed at that IEP meeting (Exhibit DOE-2); a signed waiver to amend the IEP (Exhibit DOE-3); two related service adaption forms related to Speech-Language therapy (Exhibit DOE-4, and DOE-5); one related service adaption form related to Counseling Services (Exhibit DOE-6); and a Special Education Program Adaptations (PAD) for Blended and Remote Learning form (Exhibit DOE-7).
The special education program and services recommended in the disclosed IEP includes Integrated Co-Teaching (“ICT”) Services: Math, 10 times (period) per week; ITC Services: ELA 10 times (period) per week; Counseling Services, Group of 5, 1 time (30 minutes) per week; and Speech-Language Therapy, Group 3, 3 times (30 minutes) per week (Exhibit DOE-1-9). Based on the IEP teams’ findings and recommendations in the IEP in question, services for the ESY were found necessary and recommended. The program also recommended extended year services and recommended Special education Teacher Support Services (“SETSS”) for July and August, to commence on July 1, 2020, as follows: SETSS: Math, Direct Service, Group service, 2 times (period) per week; and SETSS: ELA, Direct Service, Group service, 3 times (period) per week (Exhibit DOE-1). The program and services were all recommended to be provided in English. There is no reason, based on the record before me, to disturb such findings and recommendations and accordingly my computation of the awarded compensatory hours is based on the provision of a FAPE for the ESY.
District’s representative also presented testimony of District’s Witness, being Student’s teacher for the 2020-2021 SY (T. P182, L6-25; P183-P202) in support of the DOE’s position that it provided Student with a FAPE.
District’s Witness testified inter alia:
That Witness has been a special education teacher employed by the DOE in that capacity for ten years; as to Witness’s educational background, certifications, and duties and responsibilities; as to Witness’s familiarity with Student, who was Witness’s student in the 2020-2021 SY; Student started off (for the SY) as hybrid up until March 2021 and then was full-time in person until the end of the SY; for hybrid learning, they tried to keep it as consistent as in person learning, so whatever the schedule would be when they were in school, it would be the same schedule at home.
They released a schedule each morning that had the tasks for the day and a link, which would be used to join any live sessions; the main lessons were pre-recorded and then they would have small groups during that class time; this was done for reading, writing, math, social studies, and other subjects; because of remote learning, the way the classroom was organized was in pods with three different groups, and ran it very much like an ITC classroom because they knew their students and peers, who also have IEPs, needed to receive those services; when Student joined remotely Student would often have access to two teachers meaning that one teacher would run the lesson and the other would hold a small group with Student, so they did ITC as much as possible given the restrictions due to Covid-19.
For students with IEPs, they received small group services a lot more frequently, so they might have a small group for every subject in the day, usually reading, writing, math and social studies, where the regular students who maybe did not need as much support, they would meet a few times, but at least once a day; students were scheduled to be in a small group session almost for every subject every day, five to six students but no more were scheduled to be there, and often times it would be two to four students depending upon who showed up; Student attended some of the small group sessions; there were some issues at the beginning of the year getting student to attend all student’s small group sessions in the beginning and middle; they worked really closely with Student’s parents though and “it got a little better” and then Student was able to come back full time in March, which was “huge for him”; At the time of Students IEP meeting, Witness believed Student had 12 total absences, meaning Student did not log in, and would also log in, do some of the work but would miss a few of the live sessions, which is why they needed to work with Student’s parents and “it got a lot better”; but “definitely at the beginning and middle of the year”, Student didn't always come to Student’s small group sessions.
At the start of the 2020-2021 SY Student was “pretty below” in reading akin to a first grade reading level and needed a lot of support; had trouble with attention and focus, which is why they set Student up front, which really helped; attention and focus was Student’s biggest deficit impacting education and Student definitely needed to be close to a teacher just to get reminders to stay focused; smaller groups were really helpful for student, so that they could keep an eye on Student and make sure Student was focused and completing the task; when student was present, in smaller groups or had close proximity to the teacher, Student definitely participated.
At the start of the 2020-2021 SY Student started at a level J in reading, like an end of first grade reading level and by the end of the year tasted it level L, which is around a second grade reading level; in writing Witness recalled Student being able to read pretty small basic paragraphs, and needing some support coming up with ideas about what to write, but by the end of the year Student was writing small essays with two to three paragraphs and was much better at coming up with ideas for what to write; Student started off about a second grade level and ended the year around a third grade level; Witness could not speak to progress made based upon the related services received as Witness was not Student’s provider, but did not recall there being a huge issue with Student’s progress; Witness thought that there were a few IEP goals that Student met or made progress on all of them and since they would have a year to meet the IEP goals, the ones that were written in March 2021, Student had until March 2022 to meet.
During the 2020-2021 SY Student had speech and counselling which were implemented remotely; when the annual review was held in March, SETSS was added to address the concerns in reading, which was really great for Student; SETSS was first thing in the morning and Witness would get Student and another student who would log on to meet with the SETSS’s teacher (i.e., it was remote); there was a time during the 2020-2021 SY where Student was placed on a promotion in doubt list given that Student’s reading level was “pretty significantly below where it should have been”, however since Student made progress on Student’s IEP goals and since SETSS was added as a way to address that reading issue, they felt it was appropriate for Student to go onto the next grade.
In response to the DOE’s case, Parents’ representatives first called Parents’ Witness 1 to testify, being the speech-language pathologist who Parents had arranged to evaluate Student.
Parents’ Witness 1 testified (T. P218-233) inter alia regarding Witness’s position, namely speech-language pathology department manager at Employer 1 (defined on page 33); Witness’s educational qualifications, certifications, and professional background/work experience; Witness’s familiarity with Student, having evaluated Student and reviewed certain specified records; the formal standardized test Witness conducted on Student, namely the C.E.L.F.-5[31], based upon Student’s current age; what the testing focused on, the scores of the various subtests, and what the results of the subtests (and informal written report) revealed.
As to the results of the subtests (and informal written report), Parents’ Witness 1 testified that: in terms of Student’s overall scores Student scored below average in every subtest administered; that the one subtest where Student was considered average was actually word definitions, however, Student could also fall within that borderline score, so it was still something to look at as a whole; in terms of the scaled scores that were reported the average of a scaled score where a student performs considerably average in their age range is between a seven and a thirteen; that for the first subtest, formulating sentences, Student scored a two, recalling sentences a two, understanding spoken paragraphs a three, word definitions an eight, sentence assembly a three, and semantic relationships a four (see also Exhibit P-D-14); and that overall when looking at all of the subtests combined, Student is presenting with that overall below average score and with a difficulty in really formulating thoughts and going through the entire process of recalling the information presented and answering questions appropriately.
Significantly when asked twice by Parents’ representative 1 to compare the assessments and result Parents’ Witness 1 found with the Student’s present level of performance in terms of speech and language abilities with that in the spring of 2020, Parents’ Witness 1 testified that: it is very hard based on the documentation provided to really see where Student fell in terms of Student’s progress because not a lot of details were provided in the speech and language portions of the IEP in terms of how much support Student really needed to make that progress; and that as a blanket statement Student is still requiring significant assistance in the areas of Student’s speech and language goals, namely the WH questions, receptive levels, expressive levels, and written language skills; that Student is performing below average and not at age equivalent or age level and, in Witness’s opinion, the focus should be on increasing Student’s speech and language services to get Student back on par with Student’s peers in terms of Student’s speech language performance.
Parents’ Witness 1 further testified that:
Student is still falling within the same level of need and still needs assistance in the area of written language, taking those key thoughts and turning them into ideas on paper, organization, identifying key details, sequencing, making predictions, and answering questions; sometimes when looking at progression as a whole, if we are seeing that Student is not making progress for so long, that can be seen as regression, if Student is not making that slow steady climb to help make those academic gains; it seems as for the past few years Student has been sitting flat instead of making slow, steady progress or increase; it is possible that some regression could have occurred during the time that Student was not receiving services, because it stated that Student did not receive some services in 2020 to 2021 because of remote learning, however it is really hard to prove that specifically because of the lack of data provided in Student’s IEP.
Given that Student is performing pretty similarly and still requiring significant help it is possible that either some regression could be present, or Student may have some other speech and language needs that may have slipped through the cracks and may not be being addressed by the DOE at this time because they are focusing on the same language goals; Student is scoring significantly under where Student should be after receiving services and still having the same goals since 2019; looking at the IEP's and what is reported therein the lack of progress whatsoever could be a sign that Student is regressing and just not maintaining and not really learning from what Student is getting right now in speech and language services.
Parent then testified speaking to Student’s present levels of performance before the switch to remote learning, the hardship that endured due to the switch, the impact it had upon the family and Student, how Student’s learning came to a halt, and the regression that resulted. After Parent testified, Parents’ representatives called Parents’ Witness 2 to testify, being the neuropsychologist who Parents had arranged to evaluate Student. Parents’ Witness 2 testified (T. P271-285) inter alia regarding Witness’s position, namely neuropsychologist at Employer 2 (defined on page 33); Witness’s educational qualifications, certifications, and professional background/work experience; Witness’s familiarity with Student, having evaluated Student on April 4, 2022 and having reviewed certain specified records listed in Witness’s evaluation (Exhibit P-D-3, & P-D-4); and that in 2020 Student was documented with a full scale IQ of 74 with average to below average performance across domains, academic testing appeared to be largely intact, and that except for Student’s applied math problems, Student was performing below suitable levels across academic domains.
Extracts from Parents’ Witness 2’s evaluation (Exhibit P-D), particularly relating to Student’s challenges with executive functioning, ability to plan and organize approaches to tasks, regulate and modulate attention, and emotional regulation skills, were confirmed by Parents’ Witness 2 as being in congruence with Witness’s personal observations of Student during testing. Parents’ Witness 2’s testified as to whether remote instruction would be suitable for Student that: Witness thinks that all children who struggle with attention and focus struggle with remote learning, particularly if there is not a direct instruction, if Student is not directly with a teacher face to face; Witness imagined that it would be very challenging for Student to retain information or even learn or grasp information; and that in general remote learning, just because of the nature of being remote and not having the physical ability to prompt and redirect and make sure that Student has retained information is challenging for kids who struggle with attention and focus; also confirming that in Witness’s professional opinion remote instruction would in general adversely affect a student with ADHD[32] more than a neurotypical student.
After confirming the testing conducted on Student, as detailed in Witness’s written report, Parents’ Witness 2’s testified that similar to prior evaluations, Witness diagnosed Student’s intellectual skills below average range and in the very low range on the WISC-4, being a full scale IQ of 70 with some variability among the domains; with verbal comprehension, visual spatial and fluid reasoning falling well below age typical levels, and as to processing speed, Student is really needing a lot more time and instruction to process information; Student’s working memory being an area of strength in the average range; showing significant delays in language functioning and memory functioning, all consistently falling below age typical levels; showing delays in executive functioning skills, which was corroborated by Parents’ report; delays in visual motor integration; for academic testing Student displayed some solid foundational skills in terms of sight word reading, the ability to decode words, but on the tests that were more abstract and complex, such as reading comprehension and math problem solving, was where Witness saw pronounced challenges and below average typical moments.
Parents’ Witness 2’s confirmed that intellectual testing was generally consistent, there not being a significant difference between Student’s full scale IQ, although there was more variability among the measured domains, although “everything else kind of fell pretty consistently”, including rote learning skills, ability to read sight words and decode words was about the same as 2020, the score for reading comprehension in 2020 fell in the average range, but scored in the low average range in Witness’s evaluation; and math was about the same, being 74 on the prior valuation and 72 on the current evaluation.
Significantly when asked by Parents’ representative 1 to compare the overall assessment with respect to Student’s current levels compared to performance levels in the spring of 2020, Parents’ Witness 2 testified that It would be hard for witness to say without looking at raw data whether the was true regression, but that they had clearly been an increase and more pronounced learning challenges over time and as demands have changed and increased.
Parents’ Witness 2 confirmed during cross examination that for remote instruction, specifically given Student’s attention issues and needing prompting, that in Witness’s opinion small group instruction administered remotely would help with Student’s learning, given Student’s attention issues. Parents’ Witness 2 did qualify that response by stating that Witness thinks Student requires a high level of specialized instruction and specialized remediation in order to retain information, and that group size would be a relevant factor, indicating that maybe two people would be beneficial but if it was a group of for example eight students, Witness would imagine that Student would not benefit too much from that.
Based on the evidence on record, I find that Student is entitled to a remedy in the circumstances of this case. I however do not arrive at this conclusion based upon the positions taken by Parents’ representatives (Exhibit IHO-XI).
In addressing the “serious misunderstanding” regarding the delivery of FAPE and the unprecedented steps districts took to manage the impact of Covid-19, OSERS and OCR explained[33] that the IDEA and Section 504 should not impede the use of virtual or online education:
"Ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction."
Districts must provide FAPE consistent with the need to protect the health and safety of students with disabilities and those individuals’ providing education, specialized instruction, and related services to these students. It was acknowledged that during the Covid-19 pandemic, schools might not be able to provide certain in-person services. "[It] may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services."
It was stated that many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.
Additional guidance[34] that was provided to Districts is, I find, determinative of the dispute in this matter. If Districts provide the general student population with educational services during an extended school closure, they must provide services, including FAPE, to students with disabilities. In general, if a school closes its doors to stop Covid-19 from spreading, and the District isn't providing educational services to the student population in general, then "'the [local educational agency] would not be required to provide services to students with disabilities during the same period of time.' Once school resumes, however, Districts must 'make every effort' to provide special education and related services to the child in accordance with the IEP or 504 plan.... The Department understands there may be exceptional circumstances that could affect how a particular service is provided." In addition, a child's IEP team would need to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.
Both Parents’ Witness 1 and Parents’ Witness 2 had difficulty arriving at a clear determination that Student’s regression was directly linked to the switch to remote services. Parents’ Witness 1 testified that given that Student was performing pretty similar at the time of the evaluation in 2022 and still requiring significant help it was possible that either some regression could be present, or Student may have some other speech and language needs that may have slipped through the cracks and may not be being addressed by the DOE at this time because they are focusing on the same language goals. Those needs that could have slipped through the cracks that are not being addressed (i.e., the other possibility raised), could have resulted from issues occurring in the 2021-2022 and/or 2022-2023 SYs, which are not before me. Parents’ Witness 2 testified that it would be hard for Witness to say without looking at raw data whether there was true regression. Their testimony could not directly attribute Student’s regression to any missed services (i.e., the causal connection or link was missing).
Based upon District’s Witness’s testimony, I am however able to find that the switch to remote learning as a method of delivery for Student’s program and services did impact Student’s ability to learn, and that Student was deprived of educational benefits.
District’s Witness’s testified that Student attended some of the small group sessions, there were some issues at the beginning of the year getting Student to attend the small group sessions in the beginning and middle of the SY and that they worked really closely with Student’s parents though and “it got a little better”. It was clear from District’s Witness’s testimony that attendance in the small group sessions was critical for Student to be able to gain a benefit from remote learning.
It was also emphasized that when Student was able to come back full time in March, it was “huge for him”. In cross-examination, District’s witness testified when asked if Witness would agree that because of Student’s disabilities Student would have difficulty learning remotely, that Witness did not think it was harder and that is why they put Student in smaller groups so that Student could have a teacher there, and that when Student joined the smaller groups, they often helped Student to complete Students assignments. When asked if Witness would say that remote instruction and services provided to Student during that time was effective for Student given Student’s impairments, District’s Witness testified that if Student i) joined, ii) and stayed on, and iii) was able to focus, it was effective, but definitely more effective when Student was in school. District Witness conceded that in person instruction was substantially better and more effective than remote learning for Student.
During cross examination, Parents’ representative 1 elicited additional information around Student’s difficulty attending the scheduled small groups. District’s Witness testified that oftentimes when Student was scheduled for a small group Student would not join the live (session) and recalled there being issues with Student “keeping track of the schedule and things like that”. When asked by Parents’ representative 1 whether it was patently Student’s disabilities related to attentiveness that directly affected Student’s ability to go on these live sessions and attend on a continual basis, District’s Witness answered potentially. After informing District's Witness that Witness had said that Student had attention issues and that Student had to be close to a teacher, Parents’ representative 1 asked if Student was able to have a teacher during remote sessions next to Student. District’s witness answered “Physically, no. But, that's why [Student] was put in more small groups so that [Student] could have a teacher virtually next to [Student]”.
In addressing Parents’ representatives 1’s question asking District’s Witness to elaborate what promotion in doubt indicated for Student regarding reading, District’s Witness testified that because Student was significantly below 5th grade level and because Student was so far behind, they were a little bit concerned with Student’s progress given that Student wasn't fully attending sessions. District’s Witness further testified that once they worked with Parents and Student was able to come more and they added SETSS, they saw Student’s reading started to improve, Student was able to move two reading levels by the end of the year, which made them feel comfortable promoting Student to the next grade.
Not only do I find that based on District’s Witness’s testimony attending the small groups was a vital component or necessary for Student, given Student’s impairments, to receive educational benefit from remote learning, Student’s impairments prevented Student from successfully accessing those small groups without proper adult supervision. This is also corroborated by the testimony of Parents’ witnesses and the two evaluations on record (Exhibits P-D, and P-E).
Even though the teachers made efforts to address the situation it is clear that during the beginning of the SY and through the middle of the year, as testified by District’s witness, the problem persisted. Furthermore, it was only when Student returned to in person learning that effective learning resumed. Based on a preponderance of the evidence Student was deprived of meaningful educational benefits and learning, due to Student’s learning impairments, as a result of the switch to remote learning when Student was also not provided (physically) with a teacher or aide to access the remote instruction.
I had initially excluded the 2021-2022 IEP which Parents’ representative sought to include in the record at the limited hearing due to relevance, given that that SY is not before me. That IEP however does include extracts from the “Previous IEP 3/4/21”, which is part of the 2020-2021 SY (i.e., from February 15, alternatively from March 2021, through to the end of June 2021) and therefore relevant to the SY before me and is being admitted to the record (Exhibit P-B).
It is noted in that IEP that “Previous IEP 3/4/21 REMOTE LEARNING: [Student] learns much better in-person. At the beginning and middle of this school year, [Student] did not attend many of [Student’s] live sessions. [Student’s] parents are very responsive and work hard to help [Student] whenever they can. When working remotely, [Student] needs a teacher to guide [Student] through the work. [Student] needs support with completing assignments independently. [Student] has started attending more live sessions, and participating more in [Student’s] remote work. [Student] may return to 5th grade full time in-person starting on March 22nd, 2021.”
Parent testified that although the school initially contemplated returning in person during March 2021, “but that it didn’t pan out like they planned” and that Student did not start going back to in person until late April 2021 (T. P268, L7-15).
I find that although the District offered “personalized instruction” it did not provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"[35] (my emphasis). District unequivocally makes the concession in Exhibit P-B that “When working remotely, [Student] needs a teacher to guide [Student] through the work” (Exhibit P-B-3). I therefore find that the DOE has not discharged its burden in these proceedings to prove that the Student was provided with a FAPE for the 2020-2021 SY and the Parents are entitled to relief. The resulting loss of services was not insubstantial, or put differently, had a material impact on Student’s learning and progress for the 202-2021 SY.
Both parties rely on the OSEP and NYSED's Office of Special Education guidance in their closing briefs to support the relief that each party seeks.
The facts of this case and especially the central issue – whether a switch to remote instruction can sustain a cause of action - is similar to another case brought by Parents’ representatives’ firm[36]. The State Review Officer (“SRO”) in that case specifically found that the services that were missed were missed due to the switch in the provision of instruction from in person to remote in response to the Covid-19 pandemic.
Relying on the guidance mentioned above, the SRO noted that the “CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).
If the parent disagrees with a CSE's determination regarding the student's entitlement to compensatory services, State guidance notes that:
Parents of students with disabilities may resolve disputes with school districts regarding the provision of FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j).
("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).
Here, there is no indication that a CSE has conducted such a review, nor is there any indication that the parent requested that the CSE conduct such a review. The parent expressed during the hearing that, in her opinion, the student regressed during remote learning and that remote delivery was inappropriate for the student (Tr. p. 439-41). The parent stated that she informed the school of the student's difficulties with remote learning, her dissatisfaction with the same, and her desire to obtain related services in the home beginning in April 2020 (Tr. pp. 43536, 438-40). However, the parent did not testify that she requested a reconvene of the CSE, but only indicated that the CSE did not convene to consider the impact of remote instruction on the student (Tr. pp. 432-33).”
…
“At this point, the CSE should have reconvened to develop an IEP for the student for the 2021-22 school year (see Parent Ex, B at p. 1 [showing a projected date of annual review of April 6, 2021]), and the parent was required to raise these concerns concerning the student's regression and compensatory education with the CSE in the first instance. As discussed above, the USDOE and NYSED's Office of Special Education have indicated that, under these unique circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic. Accordingly, the IHO erred in ordering compensatory education at this juncture. However, the parties, if they have not already done so, should conduct a review of the student's present levels of academic achievement and functional performance as envisioned by federal and state education authorities and convene a CSE to engage in educational planning for the student, which should include a consideration of whether any compensatory services may be warranted to make-up for a loss of skill during school closures and the delivery of instruction and services to the student remotely. Once a CSE conducts such a review, if the parent disagrees with the recommendations thereof, she may pursue dispute resolution through one of the mechanisms described above.
Therefore, because the IHO's order alters the procedure that must be followed with regard to compensatory education services arising out a change in the delivery of instruction during the COVID-19 pandemic, it cannot be upheld.
[VII. Conclusion] In summary, given the allegations in the parent's due process complaint notice, the IHO erred in denying the district's motion to dismiss. The IHO should not have decided whether the district offered the student a FAPE from March 2020 through the 2020-21 school year, notwithstanding the shift to remote instruction due to school building closures resulting from the COVID-19 pandemic. Even if the district's delivery of remote instruction could support a finding that the district failed to provide the student a FAPE, the student would not be entitled to relief in the form of compensatory services at this juncture as it does not appear that a CSE review occurred.” The facts of the case before me differs in a material respect, namely I find that the CSE did in fact de facto conduct such a review, and therefore has had the first opportunity to consider Student’s needs and whether any additional services may be warranted as a result of the pandemic. There is therefore no altering of the procedure that must be followed with regard to compensatory education services arising out a change in the delivery of instruction during the Covid-19 pandemic.
During the 202-2021 SY, District’s Witness testified that Student was put on a promotion in doubt list given that Student’s reading level was pretty significantly below where it should have been, but that since Student made progress in Student’s IEP goals and since they added SETSS as a way to address that reading issue, they felt it was appropriate for Student to go the next grade. During cross-examination, District’s Witness directly connected the adding of SETSS due to Student being so far behind, and their concerns with Student’s progress given that Student was not fully attending sessions; and that once they worked with Parents and Student was able to come more and they added SETSS, they saw Student’s reading started to improve. Student was able to move two reading levels by the end of the year, which made them feel comfortable promoting Student to the next grade (T. P199, L8-16).
According to District’s Witness the additional SETSS were added directly in response to Student’s missed remote sessions (and which I factor in below when determining the appropriate remedy), which helped Student to make progress towards reading, leading to Student being promoted to the next grade. Accordingly, the District had the first opportunity to consider Student’s needs and whether any additional services may be warranted as a result of the pandemic, which could only have been done pursuant to a review[37].
Despite taking steps to address the deficit, the DOE concedes in Student’s later IEP that “[Student] has been set back since COVID, 4th grade and has never caught up” (my emphasis) (Exhibit P-B-2).
In the decision cited above, the SRO noted that “the due process complaint notice does not include any allegations relating to a CSE's consideration of compensatory education or lack thereof because of responsive measures by the government to mitigate the public health threat from COVID-19”.
Whilst allowing parents “to add a new claim after the resolution period has expired would allow them to sandbag the school district”[38], there is no risk of that having occurred here. The ADPC (Exhibit IHO-II) was thoroughly and comprehensively addressed by the parties at the limited hearing and as part of the motion to dismiss. It was clear that Parents were seeking compensatory damages due to the switch to remote services, and not due to alleged deficiencies in the IEP – Parents agreed with the program.
District’s representative 1, relying on the cited authority, asserted in the Motion to Dismiss that “a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic. There is no indication that this has yet occurred for this student” (Exhibit IHO-IV-15). In answer to my clarification questions, District’s representative 1 confirmed that an interpretation of the cited authority to, firstly require the CSE to have had such an opportunity as a precursor to a claim by a parent arising (or having a right of action), and secondly for it to be pleaded that this has occurred (T. P107, L15-25; P108-110; P111, L1-11). Accordingly, going into the hearing, such response was already within the contemplation of the District.
Given that the issue was expressly addressed at the time of the limited hearing, the parties knew when the impartial hearing took place what the case was about and what relief was being sought. District’s representative 1 raised that Parents’ representatives’ firm had brought many such cases, noting the outcomes. The DOE called the District’s Witness, who provided testimony on that central issue. A comprehensive closing brief has been filed by District’s representative 2, which again relies on case authority germane to the central issue of the case.
As regards the Operative ADPC and pleading generally, a parent may file a due process complaint on any of the matters relating to the identification, evaluation, or educational placement of a child with a disability or the provision of a FAPE to a child. The word “any” has an expansive meaning, that is, “one or some indiscriminately of whatever kind”[39].
The due process complaint must include: the name of the child; the address of the residence of the child; the child’s attending school; a description of the nature of the problem of the child relating to the proposed or refused initiation or change, including facts relating to the problem; and a proposed solution to the problem, to the extent known and available to the complaining party at the time.[40] The complaining party is not required to include in the DPC all the facts relating to the nature of the problem. Nor is the complaining party required to set forth in the due process complaint all applicable legal arguments in “painstaking detail”.[41] The IDEA’s due process requirements impose “minimal pleading standards”.[42] This however does not equate to a “bare notice pleading requirement”.[43]
The guidance provided by OSEP and NYSED's Office of Special Education does not expressly place any higher standard of pleading upon parents and I do not find in the circumstances of this case that there is no resulting prejudice by Parents’ failure to spelling out the nature of the dispute in greater detail, given that the District was fully aware of the case it had to meet and sought to address that very case through evidence and legal argument.
APPROPRIATE REMEDIES
- • 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[44].
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 the student would have been in had the district complied with its obligations under the IDEA[45].
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).
Neither party substantiated the number of compensatory hours that would be appropriate in the event that a FAPE deprivation being found. The facts however, supplemented by equitable consideration, simplify what compensatory services would be appropriate in the circumstances of this case:
I find that although the DOE’s offering did fall short of providing the Student with a FAPE, not because of a deficient program but due to impractical implementation thereof, the DOE’s program was appropriate as admitted by Parent and Student was making progress thereunder (T. P243, L22), the DOE still attempted to meet its obligations notwithstanding the extreme circumstances that presented as a result of the Covid-19 pandemic. According to Parent, the program was not only providing a FAPE before the switch to remote, but Student was making progress. Parent in answer to my clarification questions confirmed that there were no missed services (i.e., the services were offered), although it is asserted the services were ineffective or inappropriate given Student’s impairments.
From September 2019 to about the third week of March 2020 Student received in person services (T. P238, L22-25; P239, L1-4). The period from March 2020 through end of June 2020 falls within the 2019-2020 SY, which is not before me[46], although the complete duration of deprivation is a permissible factor to be considered when awarding compensatory services.
The summer program only started during the last week of July, first week of August 2020, and even so was remote, minimal, and no aide or supervision was provided. It was only provided in response to Parent’s request because a teacher “felt bad” and assigned random work, like two assignments (T. P242, L12-25; P243, L1-3).
A complete remote program was initially implemented, later switched to a hybrid model where Student would attend in person based on a rotation system or schedule. Student went back in person in late April 2021, but with the hybrid model there were many weeks where the school closed due to everyone having to quarantine and then it would only be via remote instruction (T. P268, L7-25; P269, L1-5).
When the school learned or heard that remote instruction was not working, they worked with Parents and Student to rectify those issues (T. P197, L16-25, P198, L1). Getting Student to attend the small group sessions in the beginning and middle of the SY was difficult and that they worked really closely with Student’s parents though and “it got a little better”.
Even after Student returned in person, SETSS and speech continued up until June 2021 to be remote, whereas counseling returned to in person (T. P258, L4-19).
The DOE provided notice to Parents regarding the switch to remote instruction or teletherapy (Exhibits DOE-4, DOE-5, DOE-6, and DOE-7). It is noted that Student’s mom, who did not testify, consented to Student receiving counseling services remotely (Exhibit DOE-6-2).
The school team worked to address the issue of Student’s failure to fully attend the remote sessions, worked with Parents, added SETSS (i.e., providing additional services warranted as a result of the pandemic after considering the Student's needs, albeit not fully or successfully – the concession in Exhibit P-B-2 refers), which resulted in improvement in Student’s reading and progress (T. P199, L8-16).
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"]”.
Additionally, the purpose of compensatory education is neither to punish the District[47] 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.”[48] The facts and evidence of this case supports the conclusion that Student was deprived of educational benefits, notwithstanding good faith efforts by the school to develop a remote and then a hybrid program in extreme circumstances, precipitated by the Covid-19 global pandemic. The District’s efforts, which included adding additional SETSS to Student’s program and working with the family to address the obstacles that would make learning available to Student, due to Student’s unique learning challenges, were commendable and timely, but unfortunately did fall short. The CSE team concedes as much.
These above considerations have factored into my calculation of compensatory hours, which merely seeks to place Student in the position Student would have been in had a FAPE been provided, and are awarded as follows (rounding has been used in the calculations, where required):
- • 242 compensatory hours of SETSS calculated as follows:
- • 20/21 SY: July & August 2020 (24 periods per week x 8 weeks x 0.45) = 86.4 hours
- • 20/21 SY: September 2020 - April 2021 (24 periods per week x 27[49] weeks x 0.24) = 155.5 hours Total: 242 hours
- • 14 compensatory hours of Speech-Language therapy for the 20/21 ESY: 1[50] hour (2 x 30 minutes) per week x 46 weeks x 0.30 = 14 hours
- • Other relief: Reimbursement of cost re: Parents’ evaluations; Reconvene; Costs; & Other Parents initially sought an order for reimbursement of the cost of the two evaluations obtained by Parents (Exhibit P-D, and P-E). Not only did Parent confirm that there was no contract signed for the Speech and Language evaluation (although Parent understood Parent would be liable for a cost of around $2,000.00 to $2,500.00) Parents had not been billed for that evaluation (T. P261, L12-24; P266, 1-6). Additionally, Parent confirmed that the neuropsychological evaluation was obtained through Parent’s insurance at no cost to Parents. Given that these evaluations do not assist in determining an appropriate remedy for this case (no recommendations of compensatory hours were formulated) and otherwise do not provide a reliable basis for determining regression (given the evaluators’ testimony), it is understandable that the cost of these evaluations ultimately were not pursued as the final relief sought (Exhibit IHO-XI-15).
- • Given that the CSE has reconvened at least twice since the start of the 2020-2021 SY, based upon the contents of Exhibit P-B, an order to reconvene is unnecessary and was not pursued in the final relief (Exhibit IHO-XI-15).
Finally, as part of the proposed relief in the Operative DPC is a request for attorney’s fees to be awarded (Exhibit P-VII).
Only a court can determine which party is entitled to attorney’s costs and fees, and I would be exceeding my scope of authority if I determined that Parents were the prevailing party entitled to attorney’s fees, or if I included it in my award.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
- • 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:
- • 242 compensatory hours of SETSS by a New York State licensed Special Education Teacher; and
- • 14 compensatory hours of Speech-Language therapy by a New York State licensed speech pathologist, by issuing payment directly to the providers within 30 (thirty) days upon the submission of invoices for services rendered.
- • FURTHER ORDERED that, the bank of compensatory services set out in #2 of this Order shall not expire until the expiration of 1 (one) year 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 SETSS at a rate not to exceed $175 per hour.
- • Compensatory Speech-Language therapy at a rate not to exceed $200 per hour.
- • FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
SO ORDERED.
DATED: December 12, 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.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENTS’ EXHIBITS
Exhibit
Document
Date
Pages
P-A
NYC DOE IEP
03/02/2020
9
P-B
NYC DOE IEP
03/15/2022
15
P-C
Ten Day Notice
12/30/2022
2
P-D
Neuropsychological Evaluation
04/04/2022
17
P-E
Speech Language Evaluation
09/05/2022
5
DOE’S EXHIBITS
Exhibit
Document
Date
Pages
DOE-1
Individualized Education Program
03/23/2020
16
DOE-2
Prior Written Notice
04/13/2020
4
DOE-3
Waiver to Amend IEP
09/22/2020
2
DOE-4
Related Service Adaptations – Speech
10/05/2020
3
DOE-5
Related Service Adaptations – Speech Update
01/11/2021
3
DOE-6
Related Service Adaptations – Counseling
10/07/2020
3
DOE-7
Program Adaptations Document
09/21/2020
4
IHO’S EXHIBITS
Exhibit
Document
Date
Pages
IHO-I
Due Process Complaint and Email
12/30/2020
4
IHO-II
Amended Due Process Complaint and Emails
11/02/2021
6
IHO-III
Parents’ Motion for Interim IEEs
03/02/2022
5
IHO-IV
District’s Motion to Dismiss
03/02/2022
15
IHO-V
Parents’ Opposition to Motion to Dismiss
03/16/2022
15
IHO-VI
District’s response to Parents’ Request for IEEs
03/16/2022
6
IHO-VII
Operative ADPC
05/25/2022
4
IHO-VIII
Order on IEEs and Motion to Dismiss
04/08/2022
18
IHO-IX
Order granting Leave to Amend
05/31/2022
7
IHO-X
District’s representative 2’s Closing Brief
11/14/2022
15
IHO-XI
Parents representative 2’s Closing Brief
11/14/2022
15
IHO-XII
Parents’ representative 2’s Email to IHO
04/05/2022
2
IHO-XIII
IHO’s Email response to Parents’ representative 2’s Email
04/08/2022
1
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] This exhibit has now been admitted to the record, which I address below.
[3] I am a State-certified impartial hearing officer. OATH is an independent adjudicatory agency and the impartial hearing officers employed by OATH are appointed pursuant to multiple sources of authority, including authorization by the Mayor and the New York City Department of Education, to hear the claims brought in this case. Please visit the OATH Special Education Hearings Division webpage, at https://www1.nyc.gov/site/oath/about/special-education-hearings-division.page, for more information.
[4] U.S.C. § 1400 et seq.
[5] C.F.R. § 300 et seq.
[6] Educ. Law Art. 89 § 4404 et seq.
[7] NYCRR § Part 200.
[8] C.F.R. § 104.36.
[9] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.
[10] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[11] 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].
[12] U.S.C. § 1415[f][3][E][i].
[13] Rowley, 458 U.S. at 203.
[14] C.F.R. § 300.106[a][2].
[15] C.F.R. § 300.106[b].
[16] U.S.C. § 794(a).
[17] U.S.C. § 794(a).
[18] C.F.R. § 104.33(a).
[19] C.F.R. § 104.33(b).
[20] C.F.R. §104.3(j)(1).
[21] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).
[22] See 28 C.F.R. § 35.108(c)(1)(ii).
[23] C.F.R. § 104.35(d).
[24] C.F.R. § 104.35(c)(1).
[25] C.F.R. § 104.35(c)(2).
[26] C.F.R. § 104.35(c)(3).
[27] NYS Educ. Law § 4404(1)(c).
[28] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).
[29] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[30] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[31] It was stated that due to time constraints, two of the sub-tests were not administered (T. P225, L1-3).
[32] Parent testified that Student was only recently diagnosed with ADHD.
[33] Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elem. and Secondary Schs. While Serving Children With Disabilities, 76 IDELR 104 (OSERS/OCR 2020).
[34] Questions and Answers on Providing Servs. to Children With Disabilities During the Coronavirus Disease 2019 Outbreak, 76 IDELR 77 (EDU 2020).
[35] Rowley, 458 U.S. at 203.
[36] Application of a Student with a Disability, Appeal No. 22-031.
[37] District’s Witness notes that this occurred in March 2021, which was the time of the next review meeting based on the “Previous IEP 3/4/2021”. I also note that although this date post-dates the initial DPC (Exhibit IHO-I), it precedes the Operative ADPC (Exhibit IHO-VII).
[38] R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014].
[39] Lillback v. State of Connecticut Dep’t of Educ., 397 F. 3d 77, 42 IDELR 230 (2d Cir. 2005) quoting Department of Hous. & Urban Dev. v. Rucker, 535 U.S. 125, 131 (2002).
[40] U.S.C. § 1415(b)(7)(A)(ii)(I-IV); 34 C.F.R. § 300.508(b).
[41] IDELR 272 (S.D. Ala 2005).
[42] Schaffer v. Weast, 546 U.S. 49, 44 IDELR 150 (2005).
[43] M.S.-G., et. Al v. Lenape Regional High Sch. Dist. Bd. of Ed., 51 IDELR 236 (3rd Cir. 2009).
[44] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[45] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[46] The issue of the DPC not addressing the 2019-2020 SY was expressly dealt with in an Interim Order (Exhibit IHO-VIII-14). Parents subsequently amended the ADPC and failed to avail themselves of the opportunity to introduce that SY as part of the proposed amendment at that time and also did not, to my knowledge, issue a further DPC and seek consolidation. Contrary to the assertions in Parents’ representatives’ closing brief (Exhibit IHO-XI), the Operative ADPC does not include the 2019-2020 SY. Parents’ representatives were invited, in addressing an objection raised by District’s representative 2, to indicate where in the Operative ADPC the prior SY (to the 2020-2021 SY) was referenced and declined to do so, noting that it would be too late to try and amend (T. P254, L12-25; P255-256).
[47] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].
[48] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
[49] Factoring in days that schools were closed during the 2020-2021 SY.
[50] Parents consented to a correction based on a clerical error to Student’s IEP to reflect speck services x2 a week (Exhibit DOE-3).