New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 553704 - NYC: 209809

FINDINGS OF FACT AND DECISION

Case No.: 209809

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: August 23, 2023, September 21, 2023

Actual Record Close Date: October 25, 2023

Hearing Officer: Marisa Carbone, Esq.

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

For the Student:

Redacted, Esq., Attorney

Redacted, Parents

Redacted, Speech pathologist

For the Department of Education:

Redacted, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 21, 2023

For the Student:

Redacted, Esq., Attorney

Redacted, Parent

Redacted, Neuropsychologist

For the Department of Education:

Redacted, District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Amended Due Process Complaint (“DPC”) filed on or about April 20, 2022. In the DPC, the Parent asserted, inter alia, that the District failed to provide the Student a free appropriate public education (“FAPE”) during the 2021/2022 school year by failing to provide an appropriate placement and services. The Parent requested relief as follows: (a) the District shall immediately implement the Student’s pendency; (b) should the District not implement the Student’s pendency, fund a private placement with transportation; (c) fund a bank of compensatory services; (d) fund a dual program of home-based/after school instruction and related services; (e) fund a placement at a private ABA-based program, if necessary, as a form of compensatory and/or equitable relief; (f) reimburse and/or fund transportation costs for the Student and Parent to attend services; reimburse and/or fund the cost of private school tuition; an order for a legally valid IEP; (g) order any services to be provided by a provider of the Parent’s choosing at enhanced rates; (h) fund 1-1 instruction with behavioral support at an enhanced rate; and (i) reimburse for any out of pocket expenses relating to the Student’s special education needs.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on September 10, 2021. A due process complaint was filed on July 1, 2021 and an amended due process complaint was filed on April 20, 2022. A pre-hearing conference was held on October 7, 2021. Status conferences were held on October 22, 2021 and November 29, 2021. A hearing was scheduled for January 10, 2022 but was adjourned. A status conference was scheduled for April 28, 2022 but was adjourned. The Amended Due Process Complaint was filed on April 20, 2022. A prehearing conference was held on June 7, 2022. Status conferences were held on July 28, 2022, September 13, 2022, November 1, 2022, December 1, 2022, December 22, 2022, January 27, 2023, February 28, 2023, March 30, 2023, May 17, 2023, June 20, 2023, and July 25, 2023. A hearing on the merits was held on August 23, 2023, and September 21, 2023. The District failed to appear and was found in default. The Parent presented exhibits, which were admitted into evidence^[1] and presented three witnesses by affidavit. The record closed on October 25, 2023. Post closing briefs were submitted on October 6, 2023. There were nineteen extensions of the timelines to allow for the District’s investigation to conclude, for witness availability and for submission of closing briefs.

FINDINGS OF FACT

The Student was a Redacted student during the 2021/2022 school year. The Student is diagnosed with Autism Spectrum Disorder, Level III with cognitive impairment. She exhibits significant cognitive and social delays. The Student is classified with Autism and her classification is not in dispute.

The Student had been attending the Redacted in a 6-1-3 class since April 2021. According to the Parent, the District never offered a placement for the Student by July 2021, the beginning of the 2021/2022 school year. After the Parent filed the DPC on July 1, 2021, the District and Parent consented to pendency. The pendency agreement was signed on October 7, 2021, and agreed that the Student should remain in a 6-1-3 special class with related services of individual speech and language therapy 2 x 30, group speech and language 1 x 30, individual occupational therapy 2 x 30, individual physical therapy 2 x 30, parent counseling and training 60 minutes per month, and special transportation. The District failed to provide a placement or program for the Student to attend during pendency. The Parent could not afford to privately fund Redacted so from July 2021 through October 2021, the Student was not enrolled in school or receiving services. According to the Parent, they used compensatory services that were awarded from a previously litigated case to pay for home-based ABA services.

The Parent had a neuropsychological evaluation performed on the Student in May 2021 and submitted the report to the District in August 2021. On October 15, 2021, the District issued a Nickerson letter for the Student to attend Redacted, an approved non-public state school. On November 1, 2021, the Student began Redacted. The District agreed to provide the Student with special education transportation, however, it was unreliable so the Parent was forced to privately pay for transportation.

An IEP meeting was held on January 13, 2022. The Committee on Special Education (“CSE”) recommended that the Student be placed in an 8-1-4 special class in a non-public school with related services as follows: individual occupational therapy 2 x 30, individual physical therapy 2 x 30, individual speech and language therapy 2 x 30, group speech and language therapy 1 x 30, parent counseling and training 4 x 60, use of assistive technology, an iPad mini at home and school, and special education transportation. The CSE did not include the home-based ABA and BCBA services as recommended by the neuropsychologist.

The neuropsychologist evaluated the Student in May 2021. The evaluator testified that the Student requires placement in a program that will provide her with structured, data-driven behavioral interventions (applied behavior analysis) integrated throughout the entire curriculum. The placement should have the capacity to implement the Student’s need for school-based occupational therapy, speech and language therapy, physical therapy and counseling services. Th evaluator further testified that the Student requires 20 hours per week of home-based after school ABA instruction and 2 hours per month of BCBA supervision as well as 2 hours per month of parent training.

At the hearing, the Parent presented three witness to testify. The District failed to appear and was found in default.

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.

Here, the District filed to appear and present a case. The District failed to meet its burden and did not provide the Student with FAPE for the 2021/2022 school year.

COMPENSATORY SERVICES

Where a deprivation of FAPE is found, the IDEA allows a hearing officer to fashion a remedy that he or she finds appropriate under the circumstances, including an award of compensatory education tailored to meet the unique circumstances of the case. Here, Parent is seeking compensatory services for the District’s denial of FAPE for the school year in question.

“Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay or failure to offer educational services to an eligible child.” Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011)). For a child who has been denied an appropriate education for a protracted period of time, including the time during which the matter is litigated, prospective placement without a compensatory remedy is analogous to an “empty victory.” Id. at 296. “One court concisely captured the essence of the compensatory education remedy, holding that ‘compensatory education’ involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period to provide a FAPE to a student.” Id. (citing G. v. Ft. Bragg Indep. Sch., 343 F.3d 295, 309 (4th Cir. 2003)); see also SRO 14-014, at p. 11-12 (distinguishing between a hearing officer’s order for occupational therapy services in the student’s new IEP as “prospective relief” and his order for compensatory occupational therapy, which the SRO found “constitutes a remedy which is retroactive relief designed to compensate the student for the district's failure to offer her a FAPE,” and rejecting the DOE’s argument that the remedies were duplicative).

“[I]t is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case.” SRO 10-052, at p. 15 (citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)). Within the Second Circuit, compensatory education 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 P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (&quote;[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]”). Pursuant to this approach, there must be evidence regarding the child’s“specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526. The goal of a hearing officer in awarding compensatory education is to make the child educationally whole. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 624 (3d Cir. 2015) (“compensatory education must cover the entire period and must belatedly provide all education and related services previously denied and needed to make the child whole.”) (quoting 150 Cong. Rec. S11851 (daily ed. Nov. 24, 2004) (statement of Sen. Tom Harkin)).

Compensatory education awards can generally be crafted pursuant to two schools of thought: a quantitative approach and a qualitative approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which the student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on the student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct the deficits).

The District bears the burden of proof with respect to the compensatory remedy sought. SRO 17-105 at 8-9. The District, however, failed to appear or present any evidence at the hearing with regard to the amount or nature of compensatory services that should be awarded to the Student to address the uncontested FAPE denial. The Parent, however, offered substantial evidence to support the award for compensatory services.

DECISION

Based on a review of the record and the details mentioned above, I find that the District failed to provide FAPE to the Student for the 2021/2022 school year. I find that the Student is entitled to compensatory services as awarded below. I find that the Student is entitled to an independent feeding evaluation, occupational therapy evaluation, assistive technology evaluation and physical therapy evaluation. I find that the Parent is entitled to reimbursement for transportation costs from February 2022 to June 2022. I find that the Student is required to be in a 12-month special education program consisting of 1-1 ABA instruction with related services of individual occupational therapy 2 x 30, individual speech and language therapy 4 x 30, group speech and language therapy 1 x 30, individual physical therapy 2 x 30, individual counseling 1 x 30 and a 1-1 behavior paraprofessional. I find that the Student is entitled to after school/home-based ABA instruction of 20 hours per week and 2 hours per week of BCBA supervision. I find that the Student is entitled to after school/home-based speech language therapy of 3 x 30 minutes per week. I further find that the District shall provide the Student with special education transportation of limited time travel, in an air-conditioned minibus, with door-to-door pick up and drop off, and a 1-1 transportation paraprofessional. As to any other relief requested in the DPC, it is denied for lack of evidence.

ORDER

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

1) ORDERED, that the District shall fund a feeding evaluation to be provided by a provider of the Parent’s choosing at a reasonable market rate.

2) ORDERED, that the District shall fund an occupational therapy evaluation to be provided by a provider of the Parent’s choosing at a reasonable market rate.

3) ORDERED, that the District shall fund an assistive technology evaluation to be provided by a provider of the Parent’s choosing at a reasonable market rate.

4) ORDERED, that the District shall fund a physical therapy evaluation to be provided by a provider of the Parent’s choosing at a reasonable market rate.

5) ORDERED, that the District shall reimburse the Parent for all costs associated with transportation from February 2022 through June 2022 regarding the Student’s schooling, upon proof of invoices/receipts.

6) ORDERED, that the District shall fund a bank, without expiration, of 172.5 hours of speech and language therapy to be provided by a provider of the Parent’s choosing at a reasonable market rate.

7) ORDERED, that the District shall fund a bank, without expiration, of 1200 hours of 1-1 ABA instruction to be provided by a provider of the Parent’s choosing at a reasonable market rate.

8) ORDERED, that the District shall fund a bank, without expiration, of 92 hours of BCBA supervision to be provided by a provider of the Parent’s choosing at a reasonable market rate.

9) ORDERED, that the District shall fund a bank, without expiration, of 92 hours of BCBA parent training to be provided by a provider of the parent’s choosing at a reasonable market rate.

10) ORDERED, that the District shall fund a bank, without expiration, of missed services that were awarded through pendency, after a final accounting by the implementation unit.

11) ORDERED, that the District shall fund a non-public placement with ABA services for the Student on a 12 month basis as well as a home-based program that consists of 20 hours per week of ABA services, 2 hours per week of BCBA supervision and speech and language therapy 3 x 30 minutes per week.

12) ORDERED, that the District shall provide the Student with special education transportation that includes limited time travel, an air-conditioned minibus, door-to-door drop off and pick up, and a 1-1 transportation paraprofessional.

DATED: October 26, 2023

Marisa Carbone____

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

District Evidence List

None

Parent Evidence List

A. Impartial Hearing Request - 07/01/2021 (12 pages)

B. DOE CPSE IEP - 06/08/2019 (13 pages)

C. Redacted Acceptance Letter - 08/31/2020 (2 pages)

D. Ten Day Notice Letter - 08/26/2020 (14 pages)

E. Redacted - Progress Reports - 12/2019 –1/2020 (12 pages)

F. Proposed Pendency Order for Case No.195459 - Undated (1 page)

G. Independent Neuropsychological Evaluation Report - 05/24/2021; 05/27/2021 (21 pages)

H. Emails with DOE CSE Chairperson with Attachments - 08/04, 08/10, 8/23/2021 (30 pages)

I. Order on Pendency - 09/23/2020 (2 pages)

J. Order on Pendency Corrected - 12/15/2020 (5 pages)

K. Early Intervention Evaluation Reports - 08/16/2017; 07/25, 7/31, 8/3/2017 (34 pages)

L. Individualized Family Services Plan (IFSP) - 02/14/2018 (4 pages)

M. CPSE IEP - 01/09/2019 (24 pages)

N. DOE Turning Five Letter - 01/02/2020 (1 page)

O. DOE Evaluation Consent Form - 01/03/2020; 01/16/2020 (1 page)

P. DOE GARS-3 Summary/ Response Form and Vineland-3 Comprehensive Parent/Caregiver Form with Parent Email Confirm - 01/20/2020 (22 pages)

Q. DOE GARS-3 and VINELAND-3 Report - 04/27/2020; 01/16/2020 (3 pages)

R. Turning 5 IEP - 05/11/2020 (23 pages)

S. DOE 12-Month School Year Consent Form - 05/28/2020 (2 pages)

T. DOE Prior Written Notice - 05/28/2020 (2 pages)

U. DOE Prior Written Notice - 06/16/2020 (3 pages)

V. Parent Email re Public School Placement - 08/13/2020 (1 page)

W. DOE and Parent Emails re Public School Placement - 08/25/2020, 08/26/2020 (4 pages)

X. Redacted Enrollment Contract – 6 months - Undated (4 pages)

Y. Redacted Record Review and Behavioral Observation - 11/10/2020 (2 pages)

Z. CPSE Initial Evaluations - Undated; 1/17/2018, 1/22/2018, 1/23/2018, 2/15/2018 (26 pages)

AA. CPSE IEP Summary Page, Attendance Page and Final Notice of Recommendation - 05/04/2018 (4 pages)

BB. Parent Email to CSE District Representative - 04/21/2020 (2 pages)

CC. DOE Assistive Technology Evaluation Report - 04/12/2021 (5 pages)

DD. Independent Speech Language Evaluation Report - 05/14/2022 (22 pages)

EE. DOE Nickerson P-1 P-2 Letter - 10/15/2021 (5 pages)

FF. Parent Signed DOE P-2 Form - 10/19/2021 (3 pages)

GG. Amended Impartial Hearing Request with Email Confirmation - 4/19/2022; 4/20/2022 (27 pages)

HH. DOE Prior Written Notice - 10/13/2021 (6 pages)

II. DOE Assessment Planning Notice with email - 10/13/2021 (4 pages)

JJ. DOE Signed Pendency Form - 07/01/2021 (2 pages)

KK. DOE Social History Update - 10/14/2021 (7 pages)

LL. Redacted Home ABA Progress Report - 12/9/2021 (6 pages)

MM. DOE IEP - 01/13/2022 (27 pages)

NN. Affidavit of Redacted - 08/23/2023 (9 pages)

OO. Affidavit of Redacted - Undated (9 pages)

PP. Affidavit of Redacted - Undated (7 pages)

IHO Evidence List

I. Parent’s Closing Brief - 10/6/23 (12 pages)

Footnotes

[1] The list of exhibits is attached.