New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 549539 - NYC: 205898

Case No.: 205898

Student’s Name: Redacted (hereinafter referred to as “Student”)

Date of Birth: Redacted

District: Redacted

Hearing Request by: Redacted (hereinafter referred to as “Parent”)

Hearing Dates: April 24, 2023, May 23, 2023, June 20, 2023, July 5, 2023

Actual Record Close Date: August 1, 2023

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 24, 2023

Redacted, Esq., Attorney — Student

Redacted — Parents

Redacted, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 23, 2023

Redacted, Esq., Attorney — Student

Redacted — Parents

Redacted, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 20, 2023

Redacted, Esq., Attorney — Student

Redacted — Parents

Redacted, District Representative — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 5, 2023

Redacted, Esq., Attorney — Student

Redacted — Parents

Redacted, District Representative — DOE

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about January 12, 2021 (P-Ex. A). In the DPC, the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2018/2019, 2019/2020 and 2020/2021 school years for failure to provide an appropriate IEP and related services (P-Ex. A)^[1]. The Parent requested relief in the form of, inter alia, independent evaluations and compensatory services.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on November 18, 2022. An Interim Order for independent educational evaluations was ordered by a previously assigned IHO dated February 26, 2021. A prehearing conference was held on January 3, 2023, to discuss the issues in the case. Status conferences were held on January 31, 2023, February 28, 2023, and March 31, 2023. A hearing on the merits was held on April 24, 2023, May 23, 2023, June 20, 2023, and July 5, 2023. The District failed to appear and was found in default. The Parent presented exhibits, which were admitted into the record^[2] and presented three witnesses by affidavit. The record closed on August 1, 2023. There were seven extensions of the timelines. Post closing briefs were due by July 21, 2023. Parent submitted her brief late and, therefore, it was precluded from the record.

FINDINGS OF FACT

The Student was an Redacted bilingual student who has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”), combined type, Specific Learning Disorder with Impairments in Reading, Reading Comprehension, Written Expression, and Math. The Student presents with deficits in sensory processing, fine motor integration, visual motor integration, phonological and language delays, visual motor skills, fine motor skills, and attention.

The Student resides in a bilingual speaking household. He attended a preschool program at age [REDACTED] during the 2018/2019 school year but was never referred for special education services. During the 2019/2020 school year, the preschool program referred him to the Committee on Preschool Education (“CPSE”) in June and July 2019. The CPSE conducted evaluations of the Student but according to the Parent, the evaluations were not thorough. The CPSE held an IEP meeting on October 17, 2019, 60 days after the initial evaluation request.

At the IEP held on October 17, 2019, it was recommended that the Student receive bilingual Special Education Itinerant Teacher (“SEIT”) services for 10 hours per week on an individual basis, bilingual speech and language therapy for 1 hour per week for 60 minutes in a group, and on a 12-month extended school year.

In March 2020, the COVID pandemic forced the preschool program to close. The preschool program turned to remote instruction and the Student was required to receive his services remotely. However, the District did not provide the Student with an iPad or laptop to allow him to participate remotely. The Student did not receive his mandated bilingual speech and language services during his remote instruction.

In April 2020, the Student turned [REDACTED] but the District did not hold a turning 5 IEP meeting. By the end of the summer of 2020, the Student was without any special education services. The Parent filed the due process complaint on January 12, 2021, and invoked the Student right to pendency. The Student began kindergarten at a dual language magnet school for the 2020/2021 school year and began to receive special education services pursuant to pendency which consisted of 10 hours per week of SEIT and bilingual speech and language therapy for 1 x 60 minutes per session.

On January 12, 2021, Parent filed the request for an impartial hearing. On February 26, 2021, IHO Redacted ordered the following independent educational evaluations for the Student: neuropsychological, speech and language therapy, auditory processing, occupational therapy, physical therapy, assistive technology and an observation with an expert in behavior.

At the hearing, the Parent offered the testimony of the neuropsychologist. He conducted an evaluation on the Student on April 6, 2021. The Student was in an Integrated Co-Teaching (“ICT”) class for kindergarten but was receiving remote instruction at the time of the evaluation. The evaluator testified that the Student had many areas of strength but presented with marked difficulty in several key areas that lead to having difficulty in accessing the kindergarten curriculum without additional support. He further testified that given the extent of attention and language difficulty, it was recommended that 1-1 teacher support continue in order for him to make academic progress. He recommended 10 hours of 1-1 teacher support services per week to be pushed into his classroom, speech and language therapy and counseling, individually for personal difficulty, and in a group for social and attention functioning. He also opined that the Student required tutoring outside of class in an evidence-based reading program and should receive special education services for an extended school year to prevent regression and loss of skills. He also testified that the Student should have received 10 hours per week of SEIT services on a 12-month basis beginning with the 2018/2019 school year and that the Student should be compensated for any missed special education services due to the COVID pandemic.

The bilingual speech and language therapist also testified for the Parent. She evaluated him in March and April 2021. She testified that the District’s mandate of speech and language therapy for 2 x 30 minutes per session was not sufficient to meet the Student’s needs and that he should receive 3 x 30-minute sessions per week, individually and in a group, for an extended school year. She further testified that he should receive compensatory bilingual speech and language therapy consisting of a bank of 144 hours of home-based/after-school therapy.

The District failed to appear at the hearing and failed to present any evidence that it offered a FAPE to the Student for the years in question.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see, Forest Grove v. T.A., 129 S. Ct. 2484[2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and

6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

The District failed to appropriately evaluate the Student. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. See, SRO 08-052, SRO 08-060. Reevaluations must be conducted every three years unless both parents and the district agree that a reevaluation is unnecessary. 34 CFR §300.303(b)(2). It is fundamental that the CSE’s placement recommendation be based upon the IEP and that the IEP be based upon current evaluations. See, SRO 11-126. In the instant matter, the District failed to evaluate the Student for years and is the reason why the IEPs were so deficient and caused a denial of FAPE for the three years.

Here, the District failed to appear at the hearing and was found in default. They did not present a case and therefore failed to meet its burden. Based on my review of the documents and affidavit testimony, I find that the District did not provide the Student with FAPE for the 2018/2019, 2019/2020 and 2020/2021 school years. Compensatory Services

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must “do equity and …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Newington, supra. Here, based on the facts above, I find that the Student is entitled to compensatory services and compensatory tutoring to attempt to place the Student in the position he should have been in, if he had received the supports required as indicated in the private evaluations and based on the denial of FAPE for the three school years in question.

DECISION

Based on a review of the record and the details mentioned above, I find that the District failed to provide FAPE to the Student for the 2018/2019, 2019/2020 and 2020/2021 school years. I also find that the Student should receive special education services that include 10 hours weekly of 1-1 bilingual special education instruction, individual bilingual occupational therapy 2 x 30 minutes per session, individual bilingual speech and language therapy 2 x 30 minutes per session, bilingual group speech and language therapy 1 x 30 minutes per session, individual counseling 1 x 30 minutes per session, and group counseling 1 x 30 minutes per sessions, all on an extended school year basis. I further find that the student is eligible for compensatory services and tutoring as indicated below and that the recommendations in the independent educational evaluations should be followed and provided to the Student.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

1) ORDERED, that the district shall convene an IEP meeting for the Student and develop an IEP and adopt the recommendations and findings in the independent educational evaluations.

2) ORDERED, that the district shall fund a bank of 138 hours of individual occupational therapy to be provided by a provider of the parent’s choosing at a reasonable market rate.

3) ORDERED, that the district shall fund a bank of 144 hours of individual speech and language therapy to be provided by a provider of the parent’s choosing at a reasonable market rate.

4) ORDERED, that the district shall fund a bank of 460 hours of individual special education instruction/tutoring to be provided by a provider of the parent’s choosing at a reasonable market rate.

5) ORDERED, that the district shall directly fund Redacted transportation company for the cost incurred in transporting the Student for the independent educational evaluations, upon proof of invoices.

6) ORDERED, that the district shall fund a tutoring assessment for the Student to be provided by a provider of the parent’s choosing at a reasonable market rate.

DATED: August 4, 2023

Marisa Carbone____

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. District Evidence List

NONE

Parent Evidence List

No. Document Date Pages A Impartial Hearing Request 01/12/2021 17 B IEP 10/17/2019 17 C DOE Pendency Determination 01/25/2021 2 D Interim Order for Independent Educational 02/26/2021 3

Evaluations (“IEEs”) E CPSE Initial Evaluations with Redacted 06/2019; 47

07/2019 F Independent Speech Language Evaluation 05/03/2021 18 G Independent Occupational Therapy Evaluation 10/01/2021 9 H Independent Auditory Processing Evaluation 09/18/2021 10 I Independent Neuropsychological Evaluation 09/27/2021 39 J Independent Physical Therapy Evaluation 09/23/2021 9 K Independent Assistive Technology Evaluation 09/17/2021 10 L Redacted Rideshare Agreement 08/26/2021 2 M Resume of Redacted Undated 4 N Resume of Redacted Undated 2 O Redacted Invoice 09/18/2021 1 P Affidavit of Redacted 04/25/2023 10 Q Affidavit of Redacted 6/20/2023 11 R Affidavit of Redacted 6/28/2023 5 IHO Evidence List

NONE

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] The list of exhibits is attached.