New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 208902

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: 2-18-22; 3-31-22; 7-15-22; 8-19-22

Actual Record Close Date: 11-28-22

Hearing Officer: Steven P. Forbes

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 18, 2022, MARCH 31, 2022, JULY 15, 2022 AND AUGUST 19, 20222

For the Student:

[REDACTED]

For the Department of Education:

[REDACTED], District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about June 18, 2021. In the DPC the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years for failure to provide an appropriate program. The Parent requested relief in the form of reimbursement for the cost of services, compensatory education and services, and other miscellaneous relief.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on December 14, 2021. Following the initial appearance, the undersigned issued an interim order directing the District to conduct a vocational assessment, an assistive technology assessment, an occupational therapy assessment, a sensory integration assessment, a speech and language assessment and a complete neuropsychological evaluation of the Student. The interim order also directed the District to reconvene the CSE upon completion of the evaluations.

The interim order also directed the District to provide transportation for the Student to and from her school. This directive was completely ignored and the record before me reveals that the District never provided the Student with transportation to or from her school. In fact, on March 4, 2022, the undersigned directed the District Representative to convey to OLS that an attorney from OLS should appear on the following date to address the District’s refusal to comply with aspects of the interim order, specifically the busing issue. At a status conference held on March 8, 2022, the District Representative appeared and indicated that the OLS attorney refused to appear. This was indicative of the utter indifference, if not disdain, the District demonstrated both to the undersigned’s orders, and, far more importantly, the Student. In any case, the interim order also authorized the District to fund SETSS services for the Student.

On March 31, 2022, the undersigned issued a second interim order, at the request of the Parent, in which the SETSS services were divided among math and ELA. That interim order was further amended with a third interim order on July 5, 2022.

A hearing regarding the Parent’s request for compensatory education was held on February 18, 2022, March 31, 2022, July 15, 2022, and August 19, 2022. The District presented neither documents nor witnesses. The Parent presented twenty-nine exhibits, which were admitted into the record.^[1] The Parent presented three witnesses, [REDACTED], and the Parents.

It is worth mentioning that the District’s participation in this proceeding was, at best, inconsistent. Specifically, the District failed to appear for a number of appearances including March 31, 2022, June 3, 2022, and August 19, 2022. When the District did appear, it only engaged in what can only be characterized as a perfunctory cross-examination of the witnesses and did not put forth any plausible effort to defend the District’s IEPs. The District similarly failed to address, let alone adequately explain, its complete and total failure to provide the Student with a FAPE over the course of many years. On top of that, OLS’s refusal to participate in this proceeding and the District’s complete unwillingness to work with the Parent’s throughout the course of this proceeding to ameliorate some of these grievous failures is a further blemish upon the District and casts the District’s efforts as a whole in a particularly poor light.

At the conclusion of the hearing in this matter, there was apparently a breakdown in communication between the Parents and their representative, [REDACTED]. Ultimately, this led to the Parent discharging Ms. [REDACTED]. As a result, the Parent requested multiple extensions after the completion of the hearing to submit their summation. That summation was eventually received by the undersigned on November 28, 2022. Unsurprisingly, the District submitted no summation.

The Parent, in their summation, requests a wide array of relief, including, among other things, compensatory education and services, as well as reimbursement for education, services and evaluations paid for by the Parent.

FINDINGS OF FACT

The Parent testified on their own behalf in this proceeding.^[2] The Parent indicated that, over the years, he would regularly write to the CSE requesting an IEP for the coming school year. In the Spring of 2019, the Student was not in a program, at all. As a result, the Parents had hired two special education teachers to teach her basic academic skills.^[3] They also had a speech pathologist working with the Student. For the entire 2018-2019, school year, the Student had no placement whatsoever and did not go to school at all. These services occurred in the home from 9:00 a.m. to 2:00 p.m.

The Parent attended an IEP meeting in June 2019 and was advised that the District would contact him in the summer with regard to a program for the Student. The District never contacted him. During that same meeting, the Parent advised the IEP team that the only education the Student was receiving was from two general education elementary school teachers that were being paid by the Parents. On the other hand, the 2018-2019 IEP indicates that the Student was being home schooled. She was not. In any case, for the June 2019 IEP meeting, the CSE asked for reports from providers. And while the IEP developed in June 2019 indicated that the Student was working with special education teachers who were working on developing the Student’s life skills, in fact, the Parent never informed the CSE that the teachers were special education teachers. The Parent advised the CSE that the Student was not receiving either services or in a school. The Student has not been in an actual school since the 2015-2016 school year.

At no point during the summer of 2019 did the CSE contact the Parent to arrange for testing, evaluations or assessments and at no point did the District ever recommend a program for her for the 2019-2020 school year. No conversation was had about the requirements that the Student had to fulfill about getting a high school diploma or equivalency. There was similarly no conversation about Regents exams or credits needed to graduate. No conversation was had about the related services.

According to the Parent, and as reflected in the June 2019 IEP, there was a transition goal mentioned in the IEP to assist the Student in traveling independently but no conversation was had about that during the actual IEP meeting in June 2019. Similarly, there was no conversation had about any of the activities that the Student was supposed to participate in, including activities in the community. (P-Ex. B, page 14). The June 2018 IEP said she would receive all the credits to receive a HS diploma. In June 2019, there was no conversation about what progress the Student had made toward achieving those goals. In fact, there was no conversation about her goals at all.

The Parents obtained several private evaluations. The last one was conducted in the summer of 2019 by a neuropsychologist. In 2019-2020 school year, the Student was not given program despite two separate IEP meetings during the course of the year. Following the second IEP meeting, the CSE finally recommended a placement at [REDACTED] High School where the Student is currently attending. The CSE informed the Parents that the Student would be able to obtain a high school diploma at this school. Then, on February 16, 2022, the Parent was informed by the Principal, for the first time, that none of the Students at the school were on a diploma track and that the Students received a “certificate of completion” which would enable the Student to have a “college experience”. Essentially, the Parent claimed that personnel of the District made material misrepresentations to the Parent about the nature of the education that the Student was receiving. Notably, the District did not even attempt to present evidence or witnesses to contradict any of the above claims from the Parent. Both the claims themselves, and the District’s silence in the face of these claims, are, to put it mildly, extremely troubling and leaves the undersigned with the distinct impression that personnel from the District intentionally misled the Parents.

The Parent also called [REDACTED], a Speech and Language Pathologist, to testify at the hearing of this matter.^[4] Ms. [REDACTED] was contracted by and paid by the Parent. She never reviewed any of the Student’s IEPs. She was contracted to address social pragmatic skills, communicating in the community, and build stronger peer and family relationships. No services were related to academics. She personally developed the goals for the Student based on her skill sets and social challenges. She was asked by the Parent to submit a report to the CSE.

[REDACTED], Ph.D., also testified for the Parent at this proceeding.^[5] In addition, Dr. [REDACTED]’s report was admitted into evidence. (P-Ex. U). Based upon Dr. [REDACTED]’s evaluation and a review of numerous other evaluations and reports, Dr. [REDACTED] diagnosed the Student with ADHD, as well as ASD. Specifically, Dr. [REDACTED] concluded, “[A]s an overall picture of her, based on the entire evaluation, it is very clear that [the Student] does have some cognitive deficits. But I do think the biggest issues and difficulties with her are her social-emotional deficits and lack of social awareness that can really impact all her daily skills. And -- so that was sort of I guess when I'm thinking about her, those are my biggest concerns, the fact that she has these significant social deficits that can really impact her daily living.”^[6] Dr. [REDACTED] also indicated that the Student’s ability to make decisions and her independent living skills were extremely poor.^[7] It was in these areas where Dr. [REDACTED] felt that both a therapist and life coach would be able to assist the Student develop the skills she needed.^[8]

Parenthetically, Dr. [REDACTED] felt that the Student very much wanted to obtain a high school diploma and that achieving that goal would be of particular significance to the Student’s social and emotional functioning.^[9] Needless to say, the District made accomplishing that task extremely difficult by placing the Student in a school in which she is obtaining no actual credits toward that goal. Nonetheless, Dr. [REDACTED] ultimately agreed that the monumental goal of actually securing a piece of paper (a diploma) that stated the Student (who is now twenty years old) graduated high school should be subjugated to the goal of providing the Student with the skills and the means to live an independent life.^[10]

In addition, in her report, Dr. [REDACTED] detailed the breathtaking magnitude of the disservice the District visited upon the Student by essentially failing to educate or provide her with necessary services since the Student was in middle school, which is particularly concerning given that the Student is at the precipice of aging out of the system.

Specifically, Dr. [REDACTED] concluded:

[The Student]’s general cognitive ability, as estimated by the WAIS-IV, is in the extremely low range (FSIQ = 68). [The Student]'s general verbal comprehension abilities were in the borderline range (VCI = 70), and her general perceptual reasoning abilities were in the extremely low range (PRI = 69). [The Student]'s ability to sustain attention, concentrate, and exert mental control is in the borderline range (WMI = 74). [The Student]'s ability in processing simple or routine visual material without making errors is in the low average range when compared to her peers (PSI = 81).

On the WIAT-III, [The Student] presented with significant delays. She also presented with some variability. On her reading skills, she presented with significant deficits. She performed poorly on her reading comprehension abilities. She did much better on her word reading skills. She presented with vocabulary within the 8th grade level. She struggled with understanding passages. Her reading skills were delayed. [The Student] also exhibited significant deficits on her writing abilities. She did better on her spelling. She had delays but it was better than her ability to express her thoughts through writing. Her spelling fell within the 6th grade level. She struggled significantly with being able to write sentences. She scored within the 2nd grade level. Her math skills were a weakness. She exhibited significant difficulties on her math problem solving abilities.

Regarding social and emotional skills, [The Student] struggles with many of her skills. [The Student] presented as a sweet young adult. She struggles with staying focused at times on tasks. She can become chatty and interrupt. [The Student] especially struggles with her social emotional skills. She presents with poor emotion regulation. She can become easily frustrated. She does have friends and even had a boyfriend. Although, she has had a boyfriend she struggles with making healthy decisions. At times she can present with unsafe behaviors.

As a result of the above, Dr. [REDACTED] made a number of recommendations for services the Student should receive while she remained eligible to receive those services, as well as for a bank of compensatory education and services which the Student can receive even beyond that period. Before addressing those recommendations, it should be noted that the District did not even appear on March 31, 2022, one of the dates when Dr. [REDACTED] testified. Moreover, the District certainly did not offer any evidence to dispute the recommendations made by Dr. [REDACTED].

As to the services that the Student should receive before she ages out of the system, Dr. [REDACTED] recommended the Student continue to receive:

• • SETSS services, 20 hours per week provided by a BCBA, with 10 hours being dedicated to ELA and 10 hours being dedicated to math;
• • Life Coach who is a BCBA;
• • ABA Therapy;
• • Occupational Therapy;
• • Counseling Services; and,
• • Speech and Language Therapy (1:1, three times per week for 30 minutes, and group, once per week for 30 minutes, pursuant to the S/L evaluation conducted – (P-Ex. W)).

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.

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.

In the instant matter, not only did the District not present any witnesses that challenged any of the findings or recommendations of the evaluators presented by the Parent, but the District, in a multitude of ways, demonstrated complete indifference to the Student, the undersigned’s orders, the IDEA and ultimately, its own responsibilities. Indeed, the District’s failures in regard to the Student were as egregious as they were numerous. These failures have left the Student completely unable to make the transition into adulthood which she should be making at this point in her life.

Having said that, both Parents, who are educated professionals within the legal community themselves, made choices of their own which can only be characterized as puzzling. Specifically, their decision to essentially home school the Student for two full school years, with general education teachers no less, deprived the Student of essential social, emotional, academic and therapeutic benefits that an in-person education would have afforded the Student. Indeed, the isolation imposed on the Student during this time period almost certainly had an adverse effect on the Student’s overall development.

Moreover, as stated above, it is beyond the undersigned’s understanding why the Parents did not take more assertive, tangible actions sooner to have the Student either receive SETSS or related services provided to the Student funded by the District or, short of that, unilaterally place the Student at a non-public school that was capable of implementing the Student’s IEP and seeking funding for that placement from the District which was not even offering the Student a program of any kind. Nonetheless, while there may be blame to go around for why the Student finds herself in the position she is currently in, the District’s legion of failures was ultimately to blame for allowing this situation to develop in the first place and to continue for as long as it did. No amount of parental misjudgments can absolve the District of those failures.

In the Parent’s summation, they ask that the undersigned direct the District to extend the Student’s eligibility to receive services until she reaches the age of twenty-six. The Parent, who inexplicably discharged their advocate at the conclusion of the hearing, cites to no statute or case law which would authorize such an IHO to issue such an order. The same can be said of the Parent’s request that the undersigned issue an order directing the District to retroactively give the Student high school credits for the classes she has been attending for the past two years. Similarly, the Parent cites to no authority that the District should be compelled to fund the cost of the Student’s college education.

On the other hand, there is at least some legal support for the idea that a school district that has utterly failed to provide the Student with a FAPE during the time of that Student’s IDEA eligibility, that the District can be compelled to fund the cost of college classes which might assist the Student in ultimately obtaining the high school diploma that the District failed to provide the student. Stapleton v. Penns Valley Area School District, 2017 WL 6336611 (M.D. Penn. 2017).

It follows then, that even assuming the IDEA authorizes payment of college tuition as a form of compensatory education, the disbursement of those funds under the IDEA for college courses and attendant expenses must align with identified educational services the student did not receive from the school district for the period of time he or she was deprived a FAPE. Plaintiffs have not demonstrated to the Court’s satisfaction that the costs associated with the Student’s college attendance were, in fact, for educational services the Student was denied in secondary school.

Id., at 6. However, even then, the court in Stapleton was also clear that the school district could not be ordered to fund “unconditional college tuition.” Id. Here, the Parent has requested that they be reimbursed $899.00 for the cost of enrolling the Student in an online GED program. Having done so, it appears that the Parents themselves have elected to forego the goal of the Student obtaining high school diploma. In addition, while Dr. [REDACTED] recognized the importance the Student attached to obtaining her high school diploma, her initial report, recommended that the Student be enrolled in a GED program, ostensibly recognizing the practical difficulties the Student would have in obtaining a full high school diploma at this point.^[11]

To the extent that the Parents would have the undersigned issue an order directing the District to fund college courses to assist the Student in obtaining a high school diploma, the Parents have not identified a specific school, let alone classes, that the Student would take in furtherance of that goal. In any event, this claim for relief is premature to the extent that the Student remains enrolled in the public school and may very well continue in that school into the 2023-2024 school year. Given these factors, it makes far more sense for the Student to continue in her current placement, with the services she will continue to receive and to have the CSE reconvene forthwith to determine the best course of action going forward.

As to the claim for compensatory services, there is clear legal authority for those services to be provided well beyond the point when the Student’s IDEA eligibility comes to an end. Pihl v. Massachusetts Dept. of Ed., 9 F.3d 184 (1st Cir. 1993). It is in this relief that the Student will realize the greatest benefit and where many of the District’s failures will be ameliorated.

Based on all of the above, I conclude that the District has conceded, for all intents and purposes, and I so find, that it completely denied the Student anything even resembling a FAPE over the course of the 2018-2019, 2019-2020, 2020-2021 and 2021-2022 school years. It is clear that the Student was not provided with anywhere near the level of services that she required and as a result, the Student is far behind her peers. In addition, while the District did, in fact, develop IEPs for the Student for all of the school years in dispute, the District elected not to defend any of those IEPs and they certainly made no effort during the course of the hearing to prove that they had implemented, or attempted to implement, any mandate contained in those IEPs.

Based on the evidence presented by the Parent, it is clear that the Student requires compensatory education and services. It is equally clear that the Parent is entitled to reimbursement for the cost of services and evaluations that the Parent paid that should have been provided by the District.

DECISION

Based on a review of the record and the details mentioned above, I find that the District failed provide FAPE to the Student for the 2019-2020, 2020-2021 and 2021-2022 school years.

ORDER

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

It is Ordered that the Student shall be entitled to the following:

• • Compensatory Education and Services:
• • A bank of 2070 hours of individual SETSS services to be provided by a BCBA of the Parent’s choosing with said provider to be compensated by the District at market rate;
• • A bank of 92 hours of compensatory counseling services to be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at market rate;
• • A bank of 138 hours of Speech and Language Therapy to be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at market rate;
• • A bank of 276 hours of Occupational Therapy to be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at market rate;
• • A bank of 100 hours of Transitional and/or Vocational Services to be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at market rate;
• • A bank of 1200 hours of life coach services.

There shall be no expiration date on the aforementioned banks of compensatory education and services. The above services shall be provided by providers of the Parent’s choosing with those providers to be compensated by the District at market rate. There shall be no limitations as to when or what days the above services can be provided.

• • Reimbursement The District shall reimburse the Parent for the following services which Parent has paid:
• • $45,792 – representing the amount Parent paid for Student to receive teachers/tutors in the home;
• • $1,250 – representing the amount the Parent paid for Speech and Language Therapy provided by [REDACTED];
• • $21,700 - representing the amount the Parent paid for Speech and Language Therapy provided by [REDACTED];
• • $890 – representing the amount the Parent paid for an online high school diploma program;
• • $1,270 – representing the amount the Parent paid for a vision assessment and therapy;
• • Evaluations – the District shall reimburse the Parent amounts expended for obtaining independent evaluations as follows:
• • Occupational Therapy evaluation ($1800.00);
• • Assistive Technology evaluation ($2800.00);
• • Sensory Integration Diagnostic evaluation ($3800.00);
• • Speech and Language evaluation ($1800.00); and,
• • Neuropsychological evaluation ($8000.00).
• • Services The Student shall be entitled to the following for the balance of the 2022-2023 school year:
• • SETSS services, 20 hours per week provided by a BCBA, with 10 hours being dedicated to ELA and 10 hours being dedicated to math;
• • Life Coach who is a BCBA, 1;1, 7 hours per week;
• • ABA Therapy, 1:1, twice per week for 30 minutes;
• • Occupational Therapy, 1:1, twice per week for 30 minutes;
• • Counseling Services 1:1, twice per week for 30 minutes;
• • Vision Therapy, 1:1, once per week for 30 minutes;
• • Speech and Language Therapy, 1:1, three times per week for 30 minutes; and,
• • Speech and Language Therapy, Group, once per week for 30 minutes.

To the extent the above services are not being provided by the District, said services are to be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at market rate.

• • Transportation The District shall provide the Student with transportation to and from the [REDACTED] High School for the balance of the 2022-2023 school year in an air-conditioned bus with a travel time not to exceed 45 minutes.
• • Reconvene It is further Ordered that the District shall forthwith reconvene the CSE, upon reasonable notice to the Parent, to determine what, if any, modifications need to be made to the Student’s IEP. The District is specifically directed to consider the independent evaluations obtained by the Parent, including the neuropsychological, assistive technology, speech and language, vocational and life coach.

DATED: December 3, 2022

_Steven P. Forbes____

Steven P. Forbes

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.

• • STATE EDUCATION DEPARTMENT OF NEW YORK
• • _______________________________________________X
• • In the Matter of a Complaint Pursuant to Part 200 of the Case No.: 208902
• • Regulations of the Commissioner of Education Regarding,
• • STUDENT, a minor, by and through his/her
• • Parent(s),
• • Petitioners
• • -against-
• • NEW YORK CITY DEPARTMENT OF EDUCATION,
• • Respondent.
• • ________________________________________________X
• • CERTIFICATION OF RECORD
• • The record before me as the Hearing Officer in this matter of the following:
• • Administrative Due Process Complaint dated June 18, 2021.
• • Notice of Hearing and Appointment dated December 14, 2021.
• • Parent’s Exhibits A-CC totaling four hundred sixty-seven (467) pages.
• • The written transcript of the hearing totaling three hundred ninety-nine (399) pages.
• • Findings of Fact and Decision dated December 3, 2022.
• • I, Steven P. Forbes, the Hearing Officer in this matter, do hereby certify that the attached record is accurate and encompasses the entire record in the above-entitled matter as of this date.
• • I further certify that the materials forwarded herewith are the original or a true copy of the original documents and/or other tangible items that constitute the record in this matter.
• • EXECUTED this 3rd day of December, 2022.
• • __Steven P. Forbes_______
• • STEVEN P. FORBES
• • Impartial Hearing Officer

DISTRICT EVIDENCE

No. Description Date Pages

None.

PARENT EVIDENCE

No. Description Date Pages

A DPC 12-22-21 31

B IEP 6-12-19 18

C IEP 6-22-22 25

D IEP 7-22-22 22

E IEP 6-21-22 21

F Neuropsychological Evaluation June 2015 26

G Neuropsychological Evaluation May 2018 18

H Neuropsychological Evaluation Sept. 2019 40

I OT Evaluation 6-3-21 12

J Doctor’s letter re Transportation 7-9-21 1

K Psychoeducational Evaluation Nov 2021 11

L Price Schedule 12-21-21 2

M 8 NYRCC 100.7 - 6

N NYSED Guidance re Transition - 8

O S/L Report 2-8-22 2

P Invoices for S/L Therapy 10-17/1-21 1

Q IEP 6-20-18 16

R Guide to IEP Development 2/10 3

S Visual and Perceptual Evaluations 7-15-22 6

T Sensory Integration and Praxis Test 5-6-22 14

U Neuropsychological Evaluation 5-31-22 24

V Assistive Technology Evaluation 5-2-22 17

W S/L Evaluation 5-2-22 25

X Vocational Evaluation 5-20-22 35

Y Life Coach Evaluation 7-7-22 3

Z Penn Foster GED Online Program 9-22-21 1

AA Invoices – S/L 5/19-6/22 7

BB Invoices/Proof of Payment – Tutoring 9/19-6/20 61

CC Invoices – S/L 8/20-12/20 5

IHO EVIDENCE

No. Description Date Pages

None

Footnotes

[1] The list of exhibits is attached.

[2] T., pages 91-151.

[3] It is unclear, to say the least, why the Parents chose the route they did. Specifically, in the face of the ongoing and seeming implacable indifference from the District, and the total failure of the District to recommend an appropriate program for the Student, or any program at all, why the Parents did not seek to place the Student in a unilateral placement where the Student could have received the education and services she sorely needed. Given the scale of the District’s failures here, it is virtually inconceivable that the District would not have been directed to fund the cost of such a placement. Instead, the Parents cobbled together a makeshift plan with at-home teachers and a scattering of related service providers that were, on the whole, ill-equipped to provide the Student with the level of education and services she needed. To some extent, this decision contributed to the state the Student currently finds herself in. Of course, this in no way exonerates the District.

[4] T., pages 79-91.

[5] T., pages; 199-248; 301-359

[6] T., pages 302-303.

[7] T., pages 303-304.

[8] T., pages 306-307.

[9] T., pages 308-309.

[10] T., pages 309-317.

[11] P-K, pages 11-12.