New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 551472 - NYC: 207706

FINDINGS OF FACT AND DECISION

Case Number: 207706

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parent

Date of Hearing: June 13, 2022

Actual Record Closed Date: July 21, 2022

Hearing Officer: Judith Schneider, Esq.

On June 13, 2022, I conducted (remotely via video conference) an Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”).

Procedural History

The proceeding was initiated at the request of the parent by correspondence dated April 6, 2021. (Ex. E) An amended request dated May 10, 2021 was thereafter filed and amendment was granted. I was appointed Impartial Hearing Officer on December 9, 2021. A prehearing conference was held on December 23, 2021. A second amended hearing request dated March 21, 2022, was thereafter filed and amendment was granted by the district on March 23, 2022 A prehearing conference with regard to the second amended complaint was held on April 27, 2022. An Interim Order requiring a reconvene of the CSE to consider all evaluations including a recent neuropsychological evaluation was issued on April 27, 2022. The evidentiary hearing was conducted on June 13, 2022.

Parties moved to extend the compliance date on various for settlement discussions, the scheduling of witnesses and submission of evidence, receipt and review of the transcript and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests were granted.

The current compliance date is August 5, 2022. The record closed on July 21, 2022,

Positions of the Parties The parent asserts that the district failed to provide a FAPE for the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years (“SY”) by failing to provide a finalized IEP for the 2018-2019 SY and by issuing IEPs for the subsequent school years which were procedurally and substantively defective. The parent seeks compensatory services as relief which include attendance for the 2022-2023 SY at a State approved non-public school through CBST referral, compensatory related services for related services not provided although specified in various IEPs and the conduct of an FBA and if appropriate the creation of a BIP by a BCBA. (Ex. A, T104, 113) ^[1]

The district stated that it was not putting on a case to establish it provided a FAPE for the school years claimed and was not going to take a position with regard to the requested relief except to note that the parent had not submitted the IEPs for admission into evidence and there was not an adequate basis for providing the relief sought for failure to provide certain related services. (T107-108, 110) ^[2]

Cases Presented The district presented no evidence, testimonial or documentary.

The parent presented documents for admission into evidence (a list of documents in the record is appended) and the testimony of: the neuropsychologist who conducted the 2018 and 2022 neuropsychological evaluations (“the evaluator”); the student’s mother (“the parent”)

Findings of Fact and Conclusions of Law

A) Factual Findings

Credible and uncontroverted evidence establishes that:

The student was REDACTED and in the 9th grade during the 21-22 SY. His disability classification since a 2015 IEP has been Other Health Impairment. (Exs. F, G, C) He had been receiving special education services since at least 2015. (Exs. F, G) He was in an ICT program for certain academic subjects since at least the 2018-2019 SY. (Ex. G, T86-102)

By complaint filed June 11, 2018, the parent alleged denial of FAPE from the 2015-2016 SY through the 2017-2018 SY including claims that IEPs for two of those school years had not been developed. (Ex. F) In 2018 the district declassified the student and the parent filed a separate complaint, asserting denial of FAPE for the 2018-2019 SY arising from the declassification, which complaint was consolidated with the earlier complaint. (Ex. F) At that hearing the district presented no affirmative case, did not cross-examine the parent, did not defend its decision to declassify the student and conceded on the record that it failed to provide a FAPE for the school years at issue. (Ex. F) By FOFD dated October 17, 2018 the hearing officer determined parental entitlement to compensatory education relief in the form of 686 hours of academic tutoring from the REDACTED. ^[3] An independent neuropsychological evaluation (the 2018 IEE”) which was to be considered in reclassification and the development of a new, appropriate IEP was also ordered. Further, the district was to provide an FBA and BIP. (Ex. F)

The 2018 IEE was completed on December 5, 2018. A 2018-2019 IEP had not been finalized. (Ex. A, T86-102) The student was then in the 6th grade. It was noted that the student’s history was significant for longstanding problems with attention and impulsivity, that he had been earlier diagnosed with Attention Deficit-Hyperactivity Disorder, Combined presentation (“ADHD”), that he had been exhibiting ongoing problems of anger/aggression (verbal and physical) since 2016 and had received a diagnosis of Oppositional Defiant Disorder (“ODD”) and that he had had frequent suspensions for behavior in the classroom. The evaluator diagnosed at that time: ADHD-Combined presentation; Specific Learning Disorder in the area of Written Expression; ODD. The student’s behavioral and emotional functioning remained a primary focus of treatment. (Ex. G) The evaluator recommended a “small, structured, specialized classroom environment with consistent access to individualized support/instruction” and individualized attention throughout the day and special help regarding the development of academic skills as well as various services, evaluations, accommodations and techniques. (Ex. G)

The student changed schools in the in his 6th grade school year (2018-2019) but continued to exhibit behavior struggles. He attended a different school for the 7th and 8th grades and yet another school for the 9th grade. (Ex. C) The student missed certain recommended services during the 2019-2020 and 2020-2021 SYs as a consequence of the pandemic. (T86-102) By the 2020-2021 SY (8th grade) a 1:1 behavior paraprofessional had been added to his IEP. (Ex. C) However, during the 8th grade, although growth and increased maturity had been observed, the student continued to display symptoms of defiance, oppositional behaviors and anger. In the 2021-2022 SY (9th grade) school staff reported the student showed himself to be defiant and unproductive across content areas, showed little growth in Math and ELA, reportedly often exhibited a degree of confusion with regard to content areas, had trouble staying on task during a lesson and inconsistently completed assignments. (Exs. C, M) Some peers appeared to distance themselves from him due to his behaviors. (Ex. C) There were numerous suspensions in the foregoing period. (T86-102, Exs, I, J, K, L, N, O, P)

The evaluator conducted another IEE in January 2022. (Ex. C) The student presented differently than previously in that he was more mature, friendly and engaging but acknowledged the reported behavioral issues. (T126) The student’s overall IQ was in the low average range but verbal comprehension/verbal reasoning was in the average range with weaknesses in processing speed and working memory (T128, Ex. C-23) Reading, decoding and comprehension were strengths but certain math and writing areas were areas of relative deficit. (T129-131) The student showed consistent improvement from 2018 in reading skills and spelling but virtually no improvement in his ability to construct sentences (3GE) and in math (5.1GE). (T143, Ex. C20-21) Attention issues impacted the student’s academics and receptive language and school staff reported that he often required redirection and individual 1:1 support in order to stay focused on the task. (T135-136,138 Ex. C-22) The evaluator concluded, however, that the student had the potential and capacity to learn at a college level. (T133)

In 2022 the evaluator added to the prior diagnoses and found: ADHD-Combined Type; Specific Learning Disability with Impairment in Mathematics; Specific Learning Disability with Impairment in Written Expression; ODD; Adjustment Disorder with mixed disturbance of emotions and conduct. (Ex. C)

The evaluator concluded that the student requires a non-public therapeutic school which could also individualize curriculum for his strengths and weaknesses given the magnitude and persistence of his social-emotional and behavioral difficulties and their impact on his academic and social functioning. (Ex. C-25, T150-152)

B) Conclusions With regard to this matter in which the student has not been unilaterally placed, the DOE has the burden of proof with regard to all matters. SRO 11-053. N.Y. Education Law §4404[1][c]. Further, I note that under §§1412 and 1415 of the IDEA, a free appropriate public education is available to all children with disabilities residing in the State between the ages of 3 and 21, and courts and hearing officers have broad authority to grant such relief as they deem appropriate. 20 U.S.C. §§1412(a)(1), 1415(i)(2)(C)(iii); Forest Grove Sch. Dist. v. T.A, 129 S. Ct. 2484, 2492 (S. Ct. 2009); Frank G. v. Bd. of Educ., 459 F.3d 356, 371 (2d Cir. 2006); Appeal No. 08-052.

It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.

The district has not contested the parent’s claim that the student was denied a FAPE for several school years. Therefore, it has not met its burden to establish that it provided a FAPE In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

The evidence supports my conclusion that the State-approved non-public school placement sought is reasonably calculated to benefit the student as required and is permissible compensatory relief. Draper v. Atlanta, 518 F.3d 1275, 1284 (11th Cir, 2008)

With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. It is not sufficient for the district to simply criticize the remedy sought by the parent but rather it must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014. In this matter, however, the district has not contested the parent’s request for a non-public school placement via the CBST and the testimony of the witnesses, which I find credible, has not been rebutted or controverted. Further, it has not presented any view of what appropriate relief should be but rather has remained silent. In the circumstances here I find no basis for denial of the above-discussed relief sought by the parent.

However, the parent’s request for compensatory services for mandated related services intermittently not provided over the period at issue is denied. The student will be placed in in a therapeutic non-public school and will receive mandated services. The CSE will be directed to promptly reconvene to consider related service recommendations in light of the student’s current needs made by that school should such recommendations be made.

Further, the district will be directed to fund an FBA, and if determined to be necessary, a BIP, to be conducted by a BCBA selected by the parent to be provided at market rate. The FBA shall be conducted at a time recommended by the non-public school.

The student will be entitled to 2 hours of tutoring daily at the market rate for each school day in the 2022-2023 SY (10 month) that has elapsed prior to placement in a non-public school.

ORDER

It is HEREBY ORDERED that:

• • The CSE will immediately reconvene to refer this matter to the CBST for a placement in a State-approved non-public school for the 2022-2023 SY.
• • The student is entitled to 2 hours of educational tutoring daily at the market rate for each school day (10 month program) elapsed prior to placement in the non-public school. The district shall issue authorizations for services to be utilized at the parent’s sole option.
• • The district will fund an FBA, and if determined to be necessary by the BCBA, a BIP to be conducted by a BCBA. The FBA shall be conducted after the student commences attendance at the non-public school.
• • The CSE will promptly reconvene to consider recommendations, including for changes in related services, made by the non-public school after the student’s entry.

Dated: August 5, 2022

_________/s/_____________

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers.  Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

EXHIBITS

District

NONE

Parent

A March 21, 2022 Impartial Hearing Request Amended II 13 pgs.

B November 9, 2021 Partial Resolution Agreement 2 pgs.

C January 21, 2022 Neuropsychological Evaluation Report II 33 pgs.

D May 10. 2021 Impartial Hearing Request Amended I 10 pgs.

E April 6, 2021 Impartial Hearing Request 8 pgs.

F October 17, 2018 FOFD Case No. 173620 7 pgs.

G December 5, 2018 Neuropsychological Evaluation Report I 29 pgs.

H September 29, 2020 Program Adaptations Doc. for Blended 2pgs.

And Remote Learning from the DOE

I January 13, 2020 Notice of Superintendent’s Suspension 3 pgs.

J January 10, 2020 Suspension of Office of Hearings Online 3 pgs.

K January 21, 2020 Notice of 10 Day Suspension 1 pg.

L November 11, 2021 Notice of 2 Day Suspension 1 pg.

M November 29, 2021 REDACTED H.S. Teacher Rpt. 9 pgs.

N March 24, 2022 Email Notice of Incident Report 1 pg.

O April 29, 2022 Notice of 2-Day Suspension 1 pg.

P May 25, 2022 Notice of 2-Day Suspension 1 pg.

Q ID April 12, 2019 IEP 19-20 SY I 17 pgs

R ID June 11, 2019 IEP 19-20 SY 1I 15 pgs

S ID March 24, 2020 IEP 20-21 SY 17 pgs

T ID April 14, 2021 IEP 21-22 SY 18 pgs

Impartial Hearing Officer

NONE

Footnotes

[1] As discussed herein, a prior FOFD, issued October 17, 2018. had concluded that a FAPE was not provided for several school years including the 2018-2019 SY and had ordered, among other things, compensatory tutoring services. (Ex. F) I do not address that issue, which was not raised by the district, because I conclude that the denial of a FAPE for the three remaining school years asserted and not disputed in this matter constitutes an adequate basis for the relief provided. I note, however, that the district has not disputed the claim of denial of a FAPE for the 2018-2019 SY alleged in the complaint at issue here.

[2] The district presented no evidence, declined to make an opening or closing oral statement asserting its position and conducted no cross-examination. It declined to submit a written closing statement conditioned on the opportunity for the parent to reply. (T165-166) With regard to district objections relating to parent failure to initially submit the IEPs, I initially permitted post-hearing submission, noting no prejudice to the district, but upon reconsideration have marked those documents for identification only. (T114) My determinations herein are based solely upon the testimony and Exhibits A-P.

[3] Receipt of services from REDACTED was interrupted by the pandemic but in-person services are resuming the student is expected to access the tutoring provided.