New York City Department of Education, Impartial Hearing Decision

NYSED # 550472 / NYC # 206778

FINDINGS OF FACT

Case Number: 206778

NYS Case Identifier Number: REDACTED

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Dates of Hearing: March 17 & 30; May 16 & 31, 2022

Record Closed Date: September 15, 2022

Hearing Officer: Ciccone, Diane

I. Introduction

A due process complaint was filed on February 9, 2021, pursuant to the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. § 1401, et. Seq. On March 2, 2021, I was appointed by the New York City Department of Education (“Department”) to serve as the impartial hearing officer (“IHO”) in this matter. A prehearing conference call was held on March 10, 2021. The parent who was pro se raised concerns that her son was not ready to lead an independent life, could not do basic skills such as call 911, travel, take medication or go the doctor independently and should not graduate in June 2021. The DOE agreed to hold a resolution meeting. At the April 8, 2021, status conference the DOE stated a resolution was not obtained and matter was scheduled for a hearing on June 3, 2021. The parent obtained counsel that filed two amended due process complaints. The DOE rejected both. The first one was withdrawn. An order dated December 17, 2021 denied the motion to dismiss the second amended due process complaint (IHO Exh.#6).

II. Background

STUDENT is an REDACTED-year-old student who attends the REDACTED (REDACTED). The due process complaint was submitted by the STUDENT’s parent pro se. According to the parent in the due process complaint, the school advised her that her son would be graduating in June 2021 as he is academically ready to graduate. She did not want him to graduate indicating he was not ready, as he was not cognitively ready. The STUDENT graduated in June 2021 with an academic diploma. The due process complaint alleges that the STUDENT is autistic, asthmatic and has a speech and language disorder. The complaint further alleges the STUDENT does not recognize danger, is not independent, needs assistance and supervision with his adaptive and independent skills of daily living. The STUDENT does not like to socialize, does not know how to travel, take medication, go to the doctor independently and has no vocational training.

The parent retained counsel; counsel amended the due process complaint. The second amended due process complaint alleges a denial of FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years and failure to develop appropriate transition goals and services.

III. The NYCDOE’s Position The DOE’s position is that upon graduating in June 2021 and earning a high school diploma, the STUDENT is no longer entitled to FAPE. The hearing officer lacks jurisdiction over graduation and diploma related challenges. There are various adult agencies that are capable to provide the STUDENT and his family with the level of support and services needed. The DOE presented 4 witnesses and Exhibits 1-19.

IV. Parent’s Position The parent contends that the DOE failed to provide FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years for in the 2021/2022 school year, withholding critical information from the parent in decisions involving his graduation. The IEPs for the 2019/2020, and 2020/2021 failed to take in consideration the academic lack of progress in developing the IEPs. The parent is asking for compensatory education services. The parent presented 5 witnesses (4 by affidavit) and Exhibits A-HHH

V. The NYCDOE’s case The DOE’s first witness, the school psychologist who participated in two of the contested IEP meetings for the student 2019/2020 and part of the 2020/2021 (Tr. 98). For the 2019/2020 IEP referring to Exh. 1 she testified as to his cognitive profile. His overall Full-Scale IQ is within the borderline range, strength in math reasoning, weaknesses are verbal abilities, knowledge area, and ability to adjust higher order thinking, visual spatial relation, and pattern, and short-term memory are wall withing the low average range (Tr. 100,101). The STUDENT was diagnosed as having autism spectrum disorder with cognitive delays, severe language delays and challenges with emotional regulation (Tr. 101).

She testified that academically the STUDENT had average decoding skills, limited vocabularies, difficulty with figurative language and abstract concept, in writing was able to generate his thoughts, but struggles with the process, difficulty with usage of mechanics. (Tr. 103).

She testified that there was a bilingual licensed social worker at the IEP meeting (Tr. 104).

She stated the recommendation was to remain at REDACTED and continue in the small class setting with related services (Tr. 105). She felt the recommendation was appropriate given the STUDENT’s cognitive profile and needs (Tr. 105).

She stated she attended the Feb. 2021 IEP (Tr.106). Referring to Exh. 12 she stated that the STUDENT was on track to earn his diploma by June. He was participating in schoolwork-based learning classes, where they tap into career exploration, training, resume writing and he had an outside job with CVS and Marshalls (Tr. 107). Academically he was reading within the 6th grade level although he didn’t always understand what he was reading, struggling with figurative language and abstract concepts, writing on a 5th grade level, difficulties in mechanic and usage in the writing area, and math on a 9th grade level (Tr. 108, 109). She also stated a bilingual licensed social worker attended the meeting (Tr. 109). The witness recalled the counselor mentioning they were going to work on transitional goals (Tr. 110). It was further discussed at the meeting working with ACCES-VR (Tr. 110). The IEP recommendation was to continue at REDACTED to complete the credits for a high school diploma and related services (Tr. 110).

On cross-examination she testified that she was not aware that the STUDENT’s grade level in reading and writing did not improve from the 2019 IEP meeting to the 2020 IEP meeting (Tr. 116). A smaller class size was not offered on the 2020 IEP (Tr.122). The class size for the 2019, 2020 and 2021 IEPs the class size remained the same (Tr 125). She could not recall if there were any discussions about changing the teaching methodology in 2021 as she was not at that meeting or the 2019 IEP that she did attend (Tr. 125). She could not recall if at the 2019 and 2021 IEP being told the STUDENT was not making progress (Tr.141). She could not recall if anyone informed the parent that she could decline the exemption to the Regents exam requirements at the 2021 IEP meeting (Tr. 159). She believed based on an email she read during cross that a waiver was discussed by the school but was unable to say if the parent was aware of the exemption (Tr.160.)

The DOE presented transition and vocational coordinator. She described her duties as making sure the academic students are passing their core classes to graduate and keeps track of ACCS-VR applications that the school counselors give to the exiting students and OPWDD referrals made by the school counselors (Tr. 206, 207). She also supervises community-based internship sites the school has in the community (Tr. 207). She knew of the STUDENT from speaking with his counselor about transition planning and that he went out to the community-based internships sites during the summer program (Tr. 207). The STUDENT according to the witness, took work-based learning classes which focus on career exploration, soft-skills training in the areas of resume writing, mock interviews, teamwork, time management skills, active listening, being flexible, soft skills, a person needs to maintain and obtain employment (Tr. 207,208). The STUDENT participated in the extended school year for 2018 and 2019 in community-based internships (Tr. 208). By doing so he earned credits for career development and occupational studies (Tr. 208,209). He worked at Marshalls and CVS (Tr.209). He had a counselor for the 19/20 and 20/21 school years (Tr.210). She testified that the counselors are the main contact with transitional planning for the student (Tr. 210). She also testified that the counselor had been in touch with the family to help fill out an application for ACCES-VR (Tr. 211). ACCES-VR she explained provides preemployment training and job placement (Tr.211).

On cross-examination she testified she could not say if the STUDENT learned any skills needed to improve interpersonal skills and to develop career interests, money management, budgeting skills to live independently (Tr. 216,217). She had no knowledge, despite ACCES-VR services being recommended on the 2019, 2020, and 2021 IEP and whether the STUDENT had been accepted (Tr. 229-233). Nor was she aware that the STUDENT did not have a car, use public transportation, or leave his house (Tr. 233). She was aware that ACCES-VR usually required a student to be able to travel independently (Tr.243).

The family consumer science teacher at REDACTED testified. His responsibilities are to educate children on life skills to prepare them for life after school such as teaching them about basic home life, home skills, washing clothes or preparing a meal or preparing a grocery list, how to use a debit card, write a check or use a credit card. (Tr. 265). The STUDENT was taught by the witness from 2019 to 2021 (Tr.266). He opined the STUDENT made progress throughout the years he had him as a student (Tr.266,267). He stated the STUDENT got through entrepreneurship, took a liking to it (Tr. 267, 268). He was able to make progress with goal setting understanding the difference between daily goals and career goals, he understood money and budgeting (Tr.268).

On cross-examination the teacher stated that the STUDENT was able to go to a bank and open a bank account but could not state whether he could actually do it, he was able to demonstrate the ability to be able to (Tr.291,292). His reading and writing were below grade level (Tr.298). He confirmed that for the 2019,2020, and 2021 IEPs the money management and budgeting goals were the same (Tr.305).

The DOE presented the principal of REDACTED. He testified that most of the students at the school have a classification of autism (Tr. 315). The curriculum is aligned with NYS learning standards, Next Gen standards and follow NYS graduation requirements (Tr.316). The content is modified according to what is specified in the IEP, self-contained classrooms, the staff follows the individualized learning needs outlined in the IEP, use manipulatives, hands-on opportunities (Tr.317). The school offers Regents diploma, local diploma and CDOS credentials (Tr. 318). The STUDENT graduated in 2021 with 26 credits, 22 needed to graduate, and with a Regents diploma (Tr.323).

On cross-examination the principal explained that a student can earn a local diploma with lower scores on a Regents exam than scores needed for a Regents or Advanced Regents exam or a superintendent determination where a student does not need to pass any Regents exams (Tr.326,327). The school sends home a form to advise the parent if they want their child to get a superintendent’s determination (did not pass any Regents exams, but passed the course) to get a diploma, if the parent says no, the child does not get a local diploma (Tr.327). A student can also get a CDOS commencement credential (Tr. 328). A CDOS credential with a student on a Regents track, the classes are work-based learning (Tr. 329). During the pandemic, if a student was scheduled to take a Regents exam and it was canceled and they passed the course, they could get an exemption for that canceled exam and thus would be eligible to receive a Regents diploma (Tr. 338-340). The STUDENT was able to get a Regents diploma because of the exemption (Tr. 340). The witness could not state whether the school notified the parents of the right to decline the exemption since he was not the principal at the time and opined that the principal would have followed through with her responsibilities (Tr. 340-342). He did not recall the State Education Department sending two memos,” parental right to decline exemption waivers” to REDACTED discussing the exemption (Tr.343). He was not aware if the parent was sent the notice but did recall that she wanted to extend his time at REDACTED but have him graduate with a diploma (Tr. 346). He confirmed he had a conversation with the mother that the STUDENT could not stay in the school after getting his diploma but did not tell her she could decline the exemption from the Regents exam as he was not aware of the waiver (Tr. 351).

The DOE submitted the affidavit of the bilingual clinician and social worker (Exh.19) and presented her for cross-examination. In her affidavit she stated she participated in two IEP meetings for the STUDENT on Feb. 2019 and Feb. 2021. She stated that she translated both meetings and used her skills to help the parent understand the process. She did a social history with the parent of the STUDENT (Tr.386). She learned from the parent that the STUDENT had anxiety on public transportation and dependent on his mother for day-to-day needs (Tr. 386).

VI Parent’s case The parent presented several witnesses by testimony and affidavit. The first witness was the care manager for the family. Her responsibilities are to provide services to individuals to insure they follow the doctor referrals, programs, evaluations waiver of service as well as education, representing them at IEP meetings or any meeting with the school that requires the presence of a parent (Tr. 421). She had been working with the family since 2018 (Tr.423). She testified that she was unable to have a full conversation with the STUDENT, he only gave a phrase or word after a few minutes when answering a question (Tr.423). She noticed difficulties with independent living skills (Tr.423) such as the needing total support in some areas of daily living skills (Tr. 424).

She testified that generally the schools discuss with her a transition plan and help plan or guide the family to different programs, but REDACTED never did (Tr. 424). She opined that ACCES-VR would not be an appropriate program for the STUDENT, due to his inability to travel, socialize, afraid to go outdoors and needed to have independent Adult Daily Living skills (Tr. 425,426). She attended the 2020 and 2021 IEP and at the 2021 IEP there was discussion about the STUDENT graduating (Tr.426). She stated the school said he had the credits and passed the Regents exam and had to graduate (Tr. 427). She stated no one explained there was an exemption to the Regents requirement, that he was getting a diploma because of the exemption or that it could be waived (Tr.428,429). She testified that the mother thought he was going to graduate at 21 and it was a shock to her (Tr.429). She further stated that she spoke during the meeting about needing documentation and was not aware of his transition programs, traveling training, or if they were helping him with his skills so he could be independent at 17. She said the team got upset with her and said they were going to report her and terminated the meeting (Tr. 430).

An affidavit and no cross examination of the witness who is Director of a company that provides educational remediation, behavioral intervention services, transitional services, vocational assessments, Functional Behavioral Assessments, academic achievement assessments, and transitional services and vocational training (Exh. EEE). She stated she conducted a vocational assessment on the STUDENT over the course of three days in August and September 2021 for approximately six hours. After completing several assessments, she opined that in order for the STUDENT to successfully and independently enter into the workforce upon leaving school, it will be necessary for the STUDENT to receive transitional/vocational services to teach him skills to facilitate independence. Transportation training, reading, and understanding public transportation maps and schedules and to independently navigate bus and subway systems; hands-on experiences with meal-planning, shopping from a list, making and receiving correct change, meal preparation, and laundry skills are among those which will be necessary for him to live with a maximum degree of independence. Additional tutoring in work-related functional literacy skills will also be necessary if he is to obtain and maintain employment. (Exh. EEE para. 22). She also stated that the STUDENT overall presented with deficits across all areas measured including reading, listening, and speaking skills, functional writing skills, math skills, job-related writing skills, jo-related knowledge and skills, communication skills, and independent living skills. She opined it is necessary that he receive transitional/vocational services in the deficit areas to appropriately prepare him for post-secondary living (Exh. EEE para 23).

The affidavit and no cross-examination of the founder and director of a company specializing in tutoring programs that provide one on one home, virtual, and on-site instruction using research-based, multi-sensory techniques to special education students that are individualized to the needs of each student (Exh. FFF). She stated in her affidavit she assessed the STUDENT in March 2022 to determine his academic areas of strength and weakness and to evaluate his specific instructional needs. The goal was to learn his reading, spelling, mathematics, and written expression skill levels by conducting a variety of tests. The assessment was approximately one hour. She reviewed prior to the assessment the 2021, 2020, 2019 and 2014 IEPs, an educational evaluation of Feb. 2018, psychoeducational evaluation of August 2021, a neuropsychological evaluation of Sept. 2014, and a psychological evaluation of Sept. 2018. She used the Wide Range Achievement Test “WRAT” to test his decoding, spelling, and mathematic skills. To assess his written expression ability, she had him complete a writing sample using the Test of Written Language “TOWL”. She also used the Qualitative Reading Inventory “QRI” to assess his reading comprehension skills.

After reviewing the prior assessments and evaluations and conducting her own assessments she opined the STUDENT is in critical need of one-on-one multi-sensory instruction using Orton Gillingham technique to develop his reading and spelling skills. He should also receive similar structured, multi-sensory instruction to build his written language, mathematics, and reading comprehension skills. She strongly recommendation that he receive 800 hours of intensive, one-on-one multi-sensory tutoring using the Orton Gillingham methodology and similar research based, multi-sensory techniques to develop his reading comprehension, writing, and mathematics skills. In her professional opinion, she wrote that he has the potential to achieve at least a ninth grade level across the board academically, if not higher, with the 800 hours of one-on-one instruction.

The parent submitted an affidavit in Spanish that was translated (Exh. HHH and GGG). In her affidavit she stated she was a native Spanish speaker and did not understand English. She stated that she never received any of her son’s IEPs from either the school or the DOE. She stated that her son had trouble with reading, word math problems, he needed to learn how to live independently was unable to travel alone and didn’t know how to follow directions all that she expressed at the IEP meetings.

During the 2018, 2019, 2020 and 2021 IEP meetings she asked why her son was not making progress in reading and writing and she was told he was doing fine, and it would take time. She was told they did not need to change his IEP or classes and that for him to make progress that he would make progress “little by little”. She stated she was never told of the goals for the year or if he met the goals the next year.

At the 2019 IEP occupational therapy was taken away and she was told he didn’t need it and they reduced his speech/language time also that he didn’t need it. She did not remember being told any specific transition goals. She did state that the school did provide some employment training as well as classes to teach him how to count and use money. She stated at the IEP meetings she went to, that her son also needed help with other kinds of life skills like learning how to travel by himself, learning how to use the phone, and learning how to take medicine.

In Oct. 2020 she recalled getting a telephone call from the school that her son was on pace to graduate in June 2021 and if he earned enough credits, he would graduate and would not be allowed to remain at the school. She stated that she was not told the only reason he was on pace to graduate was he was no longer required to pass the NYS Regents exam and she was not told that she had the right to decline the exemption from the Regents exam requirement. She stated she never received any mail or letters explaining that he could graduate without passing all the Regents exams.

She was told at the Feb. 2021 IEP that her son was reading at a 6th grade level, and he had reached all of his goals and would graduate and be able to go to college. During the meeting she was told there was nothing more they could do for her son, and he needed to go somewhere else. She said she was never told she could demand that her son remain in school until he passed the Regents exam requirement or turned 21.

The parent presented a clinical neuropsychologist as a testimonial witness. She conducted a psychoeducational evaluation on the STUDENT in August 2021 (Exh. F). Prior to conducting her evaluation, she reviewed an educational evaluation report from the DOE that was conducted in Feb. 2018, a social history from Feb. 2018, a psychoeducational evaluation from the DOE from Sept. 2011, a neuropsychological, psychoeducational, and vocational evaluations conducted by Dr. REDACTED in Sept. 2012 and a psychological evaluation done in YAI in Sept. 2017 (Tr. 451). She did an in-person evaluation with both the STUDENT and mother taking approximately 3 hours with some extra time with the parent (Tr. 452). She testified that she learned the STUDENT had a longstanding history of developmental delays since birth and was premature. He was diagnosed with autism spectrum disorder and intellectual disability during his early childhood (Tr.453). The STUDENT had significant emotional and behavioral dysregulation, tantrums, and self-harm behaviors since early childhood (Tr.453).

She stated he had been receiving special education since preschool (Tr.454). The REDACTED was a specialized placement for students with severe developmental delays, in a nonpublic school setting (Tr. 454). She stated he has difficulties with independent functioning and adaptive functioning throughout his life, sensory processing differences, functioning in all contexts. He is unable to use transportation alone, dependent on his mother for all his day-to-day needs (Tr.455). She stated from a review of the history the biggest challenge was difficulty with communication skills (Tr.456). He has trouble relating to peers, difficulty making friends, doesn’t seek out interactions, and generally prefers to be alone (Tr.458).

At the evaluation the STUDENT appeared physically his stated age, his behavior and social relatedness was that of a much younger child, very poor eye contact, did not engage in any spontaneous speech and exhibited a lot of repetitive behaviors that were unusual, he was responsive to questions, but his expressive language was clearly delayed with very limited output, not speaking in full sentences, he struggled with comprehending instructions, he worked really slowly and needed extra time during many of the tasks but generally cooperative and hardworking (Tr.460). His speech was slow and with a lot of grammatical errors (Tr. 461).

She administered tests of intelligence and cognition, the WAIS-4, test of academic achievement, WJ-4 achievement, two parent behavior rating scales to measure adaptive functioning and behaviors that are commonly seen in individuals with autism the Vineland Adaptive Behavior Scales and the Social Responsiveness Scale in both English and Spanish (Tr.461). with IQ he scored in the 89% which is in the low average range, with an overall percentile in the 23rd percentile, verbal reasoning in the 5th percentile, 9th percentile for vocabulary, and with general information below average in the 9th percentile, high average for visual spatial processing, working memory 6th percentile, processing speed 34th percentile (Tr.466-468). His reading skills are below average and reads on a 5th or 6th grade level (Tr. 468). His fluency skills are the 4th percentile, so his writing is at an extremely slow rate (Tr.469). His math skills are an area of relative strength for him particularly math calculations skills with straight calculation but below expected levels for his age and grade when solving word problems, applied problems, and lacked automaticity with basic math facts (Tr. 469, 470).

He had severe symptoms of autism and he struggles with social cognition or the ability to understand the thoughts and feelings of others, struggles with social communication, does not engage in spontaneous speech, doesn’t advocate for himself, deficit in social motivation, poor eye contact (Tr.472). For the Vineland-3 test to assess adaptive functioning skills he scored in the low range in all areas, the lowest range on the test (Tr.474). It means he is functioning daily at the level of a much younger child and is not able to function independently in many activities that would typically expect an REDACTED-year-old to do on his own (Tr.475). She offered as examples following instructions, responding to questions, using the Internet, using appliances safely, traveling on his own, what to do in a dangerous situation (Tr. 475-6).

Her diagnosis was autism spectrum disorder consistent with history (Tr.476). She specified the severity level was level two requiring substantial support, with accompanying language impairment, and without intellectual impairment, with significant verbal cognitive delays and adaptive functioning delays. He also had associated specific learning disorders in all areas, including reading, writing, and math (Tr.476-7). He functions in many areas at a level of a much younger child and requires substantial support to live his day-to-day life and to make progress in his development (Tr.479).

She recommended he requires special education and all related services up until the age of 21 in a specialized setting for students with autism spectrum disorder, and the services should be provided throughout the entire year (Tr. 479). He should be in an environment with students with similar challenges that do not have aggressive behavior issues, with a very low student to teacher ratio, evidence based and multisensory methodologies, instruction in life skills and vocational training, speech language services to improve language and social communications skills, support for sensory processing issues via occupational therapy (Tr. 479-480). He needs to learn with hands on experience, in vivo, practice in the real world until he achieves mastery in different skills, support with executive functioning, with thinking flexibly, problem solving, planning, and organizing (Tr. 480). She recommended one-on-one support from a learning specialist, multi-sensory teaching strategies, a lot of modeling and teaching for new tasks, a lot of repetition and scaffolding, slower pace of instruction, modified assignments, verbal instructions presented visually and psychotherapy and ABA(Tr.481-2).

On cross-examination she explained she was not aware of the specific methodologies at REDACTED only that it was a specialized, small placement for students on the autism spectrum (Tr. 485). She testified that recommending home-based intervention services and school-based intervention services would be for generalizing skill development for home, school, and community environments (Tr. 486).

VII. Findings of Fact and Discussion

A central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) is to ensure that students with disabilities have available to them a FAPE (20 U.S.C. § 1400[d][1][A]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07). While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA (Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).

Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]). The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132).

Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Walczak, 142 F.3d at 130). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the LRE (20 U.S.C. § 1412[a][5][A]; 34 C.F.R. §§ 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Walczak, 142 F.3d at 132). An appropriate educational 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 (Application of the Dep't of Educ., Appeal No. 07-018).

In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” 20 USC § 1415(i)(2)(C)(iii). The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted). Compensatory education is a prospective award of educational services designed to catch-up the student to where he should have been if a FAPE had not been denied. Brennan v. Reg’l Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 265 (D. Conn. 2007). It requires a flexible approach to determine the services and amount of services needed for remediation.  Reid v. District of Columbia, 401 F.3d 516, 521 (D.C.  Cir.  2005). See also Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (preferring "a flexible approach, rather than a rote hour-by-hour compensation award to remediate the student”). Moreover, the purpose of compensatory education is not to punish the district. see C.W. v Rose Tree Media Sch.  Dist., 395 Fed. App'x 824, 828 (3d Cir. Sept. 27,2010) [noting that "[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education."]). In addition, the purpose of any award of compensatory educational services is not to maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need, and it would not serve the needs of the student if the delivery of an award of compensatory educational services only served to overwhelm the student or otherwise adversely impacted the student’s current special education program or services.

Notwithstanding the above, the record must provide sufficient “insight about the precise types of education services [the student] needs to progress.” Mary McLeod Bethune Day Acad. Pub. Charter Sch. v. Bland, 555 F. Supp. 2d 130, 135 (D.D.C. 2008) (citation omitted). Pertinent findings to enable the hearing officer to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. Branham v. District of Columbia, 427 F.3d 7, 12 (D.C. Cir. 2005). The DOE has the burden of proof on compensatory education. M.M. v. N.Y.C. Dep't of Educ., 2017 U.S. Dist. LEXIS 47812, at *11 (S.D.N.Y. Mar. 30, 2017).

First, it was unconverted that the parent never received any of the IEPs in her native language Spanish. There was testimony from a DOE witness who was bilingual that she was present at two of the contested IEP meetings and served to translate and to make sure the parent understood what was being said. However, the meeting is a discussion, and the IEP is developed after the meeting and without it being sent to the parent in her native language it impedes her ability to fully participate in her son’s education.

Furthermore, in the parent’s pro se due process complaint she had advised the school she felt her son was not ready to graduate as he was autistic, had speech and language disorders and he doesn’t recognize dangers, cannot call 911, travel alone and depends on assistance, support, and supervision 24 hours a day. The school insisted that he was academically ready to graduate, and he could get services elsewhere and in fact he graduated in June 2021 with a Regents diploma. The DOE argues the hearing officer does not have the subject matter jurisdiction and the review of any decision on the conferring of a diploma “is within the purview of the Commissioner of Education to hear cases regarding the award of course credit and related issuance or revocation of a diploma. Appeal No. 19-004 ….and that a parent’s disagreement with the DOE determination the IDEA is not the proper forum” (Doe closing brief p.6).

However, the evidence submitted at this hearing demonstrated the STUDENT was able to obtain a Regents diploma based on exemptions provided by the New York State Education Department during the pandemic (Exh. J, K, L). The unconverted evidence further demonstrated that the DOE failed to advise the parent her right to object to the exemptions (Exh. HHH, Tr. 428,429) and thus it leads an open question as to whether the STUDENT would have had the requisite credits to obtain a diploma without the exemptions. While it is not the function of this hearing to speculate whether the STUDENT may have still obtained a diploma in June 2021 without the exemption, what is clear is the parent’s right to the information and to decide and participate in her son’s education was compromised by the DOE’s failure to inform her of all her options. Arguably, if the parent had refused the waiver, the STUDENT may have been at the school for the next year and been able to access transitional services and adult daily living skills to better prepare him for independent living.

By failing to even acknowledge the parents’ concerns of her son’s readiness to graduate and failure to provide the IEPs for the 2019/2020, 2020/2021 and 2021/2022 in her native language the district undermined the “cooperative process” between parents and districts that the Supreme Court has held constitutes the “core of the [IDEA]” (Schaffer v. Weast, 546 U.S. 49, 53 [2005], citing Rowley, 458 U.S. at 205-06; see also 20 U.S.C. § 1400[c][5] [stating Congress’ finding that the education of students with disabilities can be improved by “strengthening the role and responsibility of parents and ensuring that families of such children at school and at home”]).  Thus, the district’s failure to respond to the parent, where the parent raised concerns regarding the student's ability to be ready to graduate significantly impeded the parent’s ability to participate in the decision-making process regarding the student’s readiness to graduate and thereby denied the student a FAPE (20 U.S.C. § 1415[f][3][E][ii][II]; 34 CFR 300.513[a][2][ii]; 8 NYCRR 200.5[j][4][ii]).

In the 2017 IEP (Exh. A) recommendations included related services of Speech/language therapy both individually (2x30) and in a group of three (1x30). In the 2018 IEP (Exh. B) the recommendations for Speech/language remained the same however, were reduced in the 2019 IEP (Exh.C) without any new evaluations. Instead, there was a note in the IEP that suggested keeping the status quo “STUDENT is progressing toward meeting his annual speech and language goals” (Exh. C p.3) that was ignored when the service was reduced.

One of the many purposes of the IDEA is to prepare students for future employment and independent living. The transition recommendations remained the same from the 2018 IEP through to the 2021 IEP. The STUDENT was to participate at the IEP meetings, continue with counseling and speech/language therapy, learn money management skills, and meet with ACCES-VR to review post-secondary education plans and employment goals and supports needed, and do career and interest inventories. (Exh. B,C,D,E). According to the testimony of the DOE transition and vocational coordinator witness, she could not say if the STUDENT learned any skills needed to improve interpersonal skills and to develop career interests, money management, budgeting skills to live independently (Tr. 216,217). She had no knowledge, despite ACCES-VR services being recommended on the 2019, 2020, and 2021 IEP whether the STUDENT had been accepted (Tr. 229-233). Nor was she aware that the STUDENT did not have a car, use public transportation, or leave his house (Tr. 233). She was also aware that ACCES-VR usually required a student to be able to travel independently (Tr.243).

The family consumer science teacher taught by the STUDENT from 2019 to 2021 (Tr.266). He opined the STUDENT made progress throughout the years he had him as a student (Tr.266,267). He stated the STUDENT got through entrepreneurship, took a liking to it (Tr. 267, 268). He was able to make progress with goal setting understanding the difference between daily goals and career goals, he understood money and budgeting (Tr.268).

On cross-examination the teacher stated that the STUDENT was able to go to a bank and open a bank account but could not state whether he could actually do it, he was able to demonstrate the ability to be able to (Tr.291,292). His reading and writing were below grade level (Tr.298). He confirmed that for the 2019,2020, and 2021 IEPs the money management and budgeting goals were the same (Tr.305).

The recommendations over the course of the contested IEPs did not change. The evidence demonstrated little to no progress made by this STUDENT over the years. However, the recommendations did not vary nor did they reflect any recommendations designed to suit the individual needs of this STUDENT.

Academically even though the STUDENT received a Regents Diploma, he had a 6th grade reading level, 5th grade writing level and a 9th grade math level (Exh. E). At the time of the 2019 IEP (Exh. C) his reading level was at a 7th grade level and at the 2020 IEP (Exh.D) his reading had regressed to a 6th grade level, yet there was no change in the recommendations from the 2019 to the 2020 IEP to address this regression and no progress over the years.

The DOE psychologist who attended several of the IEPs in dispute testified that she was not aware that the STUDENT’s grade level in reading and writing did not improve from the 2019 IEP meeting to the 2020 IEP meeting and in fact the reading level had declined (Tr. 116). A smaller class size was not offered on the 2020 IEP (Tr.122). The class size for the 2019, 2020 and 2021 IEPs the class size remained the same (Tr. 125). She could not recall if there were any discussions about changing the teaching methodology in 2021 as she was not at that meeting or the 2019 IEP that she did attend (Tr. 125). She could not recall if at the 2019 and 2021 IEP being told the STUDENT was not making progress (Tr.141). She could not recall if anyone informed the parent that she could decline the exemption to the Regents exam requirements at the 2021 IEP meeting.

The DOE failed to make any changes to the recommendations to the IEP when the STUDENT’s reading levels regressed, nor was there any attention to whether the transition recommendations to the IEPs produced any progress for a transition to either post-secondary education or independent living that was individualized for this STUDENT.

The evidence is clear that the DOE had failed to provide IEPs that were appropriate and reasonable calculated to enable the STUDENT to receive an educational benefit and provide appropriate transitional/vocational support services..

I find the DOE failed to provide FAPE for 2019/2020, 2020/2021 and 2021/2022 school years and the failure to develop appropriate transition goals and services and developing recommendations for the STUDENT’s regression in reading.

The evidence is also clear that the DOE significantly impeded the parent’s ability to participate in the decision-making process regarding the STUDENT’s academic and transitional goals and needs by failing to provide IEPs in Spanish and not advising her of her right to refuse to except the Regents exemption particularly when she expressed concern that her son was not ready to graduate and was very clear in articulating why he wasn’t.

I find that STUDENT is entitled to compensatory tutoring/services to remediate STUDENT’s significant deficits and enable STUDENT to receive educational/transitional/vocational benefit from the denial of FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years.

In this case, the hearing record contained information, as it should have, that related to whether or not the student was offered a FAPE for the 2019/20, 2020/2021 and 2021/2022 school years and STUDENT was not offered a FAPE. Parent presented a well-developed record for compensatory education. The DOE did not present any witnesses on this issue, nor did it challenge Parent’s evaluations.

VIII. Order

IT IS THEREFORE ORDERED THAT:

a). The DOE shall fund 800 hours of compensatory services for the 2019/2020, 20202/2021 and 2021/2022 schoolyears. The compensatory services must include travel training, transitional/vocational training, speech therapy, and that includes one -on-one multi-sensory tutoring to develop his reading comprehension, writing and math skills.

Diane Ciccone, Esq.

Diane Ciccone, Esq. IHO

Dated: September 22, 2022

NOTICE OF RIGHT TO APPEAL

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

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

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

Present at the Hearing on March 17, 2022 (remotely)

For the District

REDACTED

For the Parent:

REDACTED

Present at the Hearing on March 30, 2022 (remotely)

For the District

REDACTED

For the Parent

REDACTED

Present at the Hearing on May 16, 2022 (remotely)

For the District

REDACTED

For the Parent

REDACTED

Present at the Hearing on May 31, 2022 (remotely)

For the District

REDACTED

For the Parent

REDACTED

Exhibits

For the District

REDACTED

For the Parent

REDACTED

For the IHO

IHO1- Order on motion to dismiss- 5.25.21- 7 pages

IHO2- 2019 IEP- 2.25.2019-18 pages

IHO3- 2020 IEP-3.2.20-17 pages

IHO4- 2021 IEP-2.2.21-16 pages

IHO5- IEE- 6.3.21- 5 pages

IHO6- Order on motion to dismiss -12.17.21-5 pages

IHO7-Order motion to quash subpoena-3.7.22- 3 pages