New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 554574 - NYC: 201673

COVER SHEET

Date Requested September 22, 20202

Hearing Officer Sharyn Finkelstein

FINDINGS OF FACT AND DECISION

Student’s Name REDACTED

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing October 14, 2021

April 25, 2022

May 5, 2022

May 24, 2022

Record Close June 13, 2022

Hearing Officer Sharyn Finkelstein Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2021

FOR THE STUDENT

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 25, 2022

FOR THE STUDENT

REDACTED Attorney

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON May 5, 2022

FOR THE STUDENT

REDACTED Attorney

REDACTED Neuropsychologist

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 24, 2020

FOR THE STUDENT

REDACTED Attorney

REDACTED Parent

FOR THE DEPARTMENT OF EDUCATION

REDACTED Attorney

INTRODUCTION AND BACKGROUND

I was appointed on August 10, 2021 to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (“Student”) for the 2018-2019, 2019-2020, and the 2020-2021 school year. The parent had filed a due process complaint on December 2, 2020. The matter had been assigned to another IHO who had issued a decision. The decision was appealed and remanded to the prior IHO who recused. (Tr. 107-109)

I held a pre hearing conference on February 3, 2021, and was advised by Parent’s attorney that they wanted an interim order for evaluations. A hearing was held on February 25, to address the issue of independent evaluations. I issued an interim order for a Speech and Language Evaluation and a Neuropsychological Evaluation. (Exhibit K)

On April 19, 2021 Parent amended the due process complaint. (Exhibit J)

There were several status conferences specifically with respect to the timing of the completion of evaluations. Hearings continued on April 25, 2022 and concluded on May 24, 2022.

The parties moved to extend the compliance date on several occasions in light of time to conduct evaluations and preparations of reports, witness availability and time to prepare for hearing. 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 in this matter.

Attached is a list of persons who attended the hearing and evidence that was submitted. Both Parties submitted closing briefs. The record was closed on June 13, 2022.

Parent seeks a bank of hours for related services for counseling, occupational therapy, speech and language therapy as well as one to one special instruction to compensate Student for denials of FAPE. They request make up services for any mandated services that were not provided. They request a determination based on the recent evaluations, with respect to what would have been an appropriate program for the 2020-2021. They request additional evaluations based on the recommendations of the current evaluations. (Exhibit J)

DEPARTMENT OF EDUCATION’S CASE The Department of Education (DOE) was represented by their attorney REDACTED REDACTED. They did not put on any witnesses or submit any evidence. They conceded that they did not provide a FAPE to Student for the years at issue. It is their position that the requests for compensation services should be denied.

PARENT’S CASE The Parent was represented by their attorney REDACTED. It is their position that Student was denied a FAPE for the 2018-2019, 2019-2020 and 2020-2021 school year. They maintain that the DOE discriminated against Student because of his disability during the school years at issue. It is their position that they are entitled to compensatory services and independent evaluations.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

One of the main purposes 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]. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.13; see 20 U.S.C. § 1414[d]; 34 C.F.R. §300.347.

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which 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 a Child with a Disability, Appeal 19No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

An IEP must contain: (1) the student's present levels of academic achievement and functional performance; (2) measurable annual goals for the child; (3) the method used to measure the student's progress toward those goals...” M.H. v. Ny.Y.C. Dept't of Educ, 685 F.3d 217, 245 (2d Cir. 2012) (citing 20 U.S.C. § 200.4(d)(2).

An IEP team must conduct certain assessments and consider all evaluations and reports provided to the team, and any other assessments that they deem necessary. 20 USCS §1414(b)(2); 8 NYCRR §200.4(b)

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

A school district meets "IDEA's substantive requirements if a student's IEP is 'reasonably calculated to enable the child to receive educational benefit[s].'" Cerra, 427 F.3d at 194 (quotation omitted). The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).

The IDEA requires that educational instruction must be provided to the child in the least restrictive environment, with the child participating to the maximum extent possible in the same classrooms and activities as non-disabled children. See 20 U.S.C. § 1412(a)(5)(A); Rowley, 458 U.S. At 203-204.

In determining the adequacy of an IEP, both parties are limited to discussing the placement and services specified in the written plan and therefore reasonably known to the parties at the time of the placement decision.

The IEP need not be designed to maximize the student's potential, but rather the IDEA represents a "'basic floor of opportunity'" that must likely produce progress more than trivial advancement. See id. at 195 (quotation and other citations omitted).

In this case the DOE conceded that they did not provide a FAPE to Student for the years at issue. (Tr. 83)

REQUESTED RELIEF

PROGRAM FOR THE 2020-2021

There were several evaluations held as a result of an interim order. The evaluators made recommendations on what Student should have received during the 2020-2021 school year. Parent requests that the recommendations should comprise what an appropriate program should have been for the 2020- 2021 school year.

Evaluations should serve as a necessary tool to aid the DOE in developing an appropriate IEP. The purpose of an evaluations is not to dictate what should be or should have been on an IEP. The purpose of the evaluations is to provide appropriate data and insight into Student’s needs for developing an appropriate IEP and ultimately an appropriate placement. The recommendations on the IEEs are recommendations and should be given appropriate weight by the team. It is not my role to step into the role of the team which consists of several members including special education teachers, psychologists, providers, and various experts in their fields. Parent requests that as part of the program, Student’s classification should be changed. Parent’s only Witness who recommended the change acknowledged that she does not work in the capacity to classify students. (Tr. 231) It is certainly not my role to change Student’s classification, especially based upon one witness.

Parent suggests that the program should be part of what constitutes a compensatory award. As stated above, it is not my role to develop a specific program. The most recent year that this hearing covered is the 2020-2021 school year. It is unknown if there has already been an IEP the 2021-2022 school year. As discussed below, Student will be receiving compensation for the denials of FAPE. This includes denials of FAPE for the 2020-2021 school year. The 2020-2021 school year is over and I find no grounds to develop a program for that year.

COMPENSATORY RELIEF

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. See SRO 08-052, at pp. 17-18; see also Student X. v. N.Y.C. Dep't of Educ., 2008 VT 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one).

Given the circumstances, the only remaining issue for the hearing officer is the matter or relief. The DOE’s burden of proof and persuasive applies to every contested issue in the hearing, including the appropriateness of compensatory relief.

With respect to the number of hours a one-to one calculation is not required and most courts seek to ascertain the child’s needs at the time the relief is sought. See, e.g., Reid ex rel. Redi V. District of Columbia, 401 F.3d 516 (C.AD.C. 2005).

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, 151 (N.D.N.Y. 1997). rst place"); Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(holding that "(a)ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"); Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10-052.

The purpose of compensatory education is not to guarantee a particular result or level of student achievement, but to fashion a remedy that attempts to place a student in the position he or she would have occupied had the district complied with its obligations under the IDEA. However, the Hearing Officer retains substantial discretion as to when equities warrant an award of compensatory services. See Suffield Bd. of Ed v. L.Y., 3:12-CV-1026, 2014 WL 104967, *11 (D. Conn. Jan. 7, 2014) (“(c)ourts have substantial discretion under the IDEA to award appropriate relief”).  A finding that a student was denied FAPE does not, ipso facto, entitle parents to the relief they seek. Id.  In addition to the statutory equitable considerations set forth at 20 U.S.C. § 1412(a)(10)(C), hearing officers have additional discretionary power to deny reimbursement. Id.

DOE is not required to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

Student is REDACTED years old. At this age Student’s needs will be changing over the next couple of years. Student should have an opportunity to be with friends and have time to participate in activities unrelated to education. I find that any services should be balanced with Student’s other needs.

REQUEST FOR TUTORING

Witness is a neuropsychologist and board-certified analyst as well as a certified school psychologist. (Tr. 199) She has a private practice and provides comprehensive neuropsychological evaluations.

Witness evaluated Student and submitted a report. (Exhibit Y) She had conducted two testing sessions in her office that lasted approximately four to five hours. (Tr. 202) She reviewed documents to ensure she had proper background information. She spoke with Student’s teacher and the school counselor.

She described the formal testing that she conducted which consisted of a comprehensive battery in neuropsychology. With respect to intellectual functioning, Student is a very bright boy and scored in the 75th to 84th percentile. (Tr. 207)

She explained that he had a lot of “scatter” in his testing between his verbal abilities and visual-spatial abilities. He had nice strength in verbal- comprehension but his visual-spatial is significantly weaker and fell in the 16th percentile. His fluid reasoning was in the high average range. His working memory was in the high average range. His processing speed was average. (Tr. 208)

Academically, Student’s results were above age expectancy. He had exceptionally high reading skills. He scored in the high range in spelling. She pointed out that when things were timed, he tended to perform a little slower. His Math skills were average to above average.

In summary, she described him as a very bright child. (Tr. 209)

Student had been mandated to receive five hours per week of special instruction over the past three years. Witness recommended that Student receive services to make up for what he missed but that he should receive a minimum of ninety-two (92) hours.

It is very unclear on what basis Witness recommended the minimum of ninety-two hours of compensatory services. What is clear is that the evaluation that she conducted indicated that Student is average and or above average in most academic areas. Witness described the results of Student’s academic testing. His rating was above age expectations in reading, spelling, and in math. (Tr. 211-212)

There is no correlation as to how Student would have performed had the DOE provide a FAPE. There is no indication that he should have received additional SETSS. Witness opined that Student was not provided with appropriate support and services. (Tr.219) Witness does not explain how she arrived at the conclusions or what DOE should have provided.

I do not underestimate Parent’s involvement and contribution to Student’s education but I cannot find this to be the basis of his academic achievement.

Witness opined that “first and foremost, Student’s classification was incorrect. (Tr. 321) I agree with the DOE that her opinion about an incorrect classification clearly was one of the reasons for her recommendation and has no bearing on request for compensatory tutoring.

Witness stated that Student’s mandates were inconsistently provided. (Tr. 221)

Parent testified that student did not receive his SEIT services during the 2018-2019 school year. (Tr. 261)

Parent testified that during the 2019-2020 school year the SEIT services began in December. The services shut down from March until May because of COVID. (Tr. 262)

Parent testified that during the 2020-2021 school year Student received the mandated five hours per week of SEIT services for the entire school year. (Tr. 266) I find no grounds to award compensatory SEIT for the 2020-2021 school year.

Evidence establishes that Student did miss some of his mandated services. I find that Student is entitled to make-up services. I find no grounds to award additional compensatory services.

SPEECH AND LANGUAGE

REDACCTED is a NYS licensed Speech and Language Pathologist. She conducted a Speech and Language evaluation which consisted of an extensive records review, interviews with Student’s teachers, parent and informal testing. She found that Student presents with moderate-to severe delays in receptive language skills, mild delays in expressive language skills, moderate delays in articulation skills, delays in phonological awareness skills, moderate delay in reading and writing skills, as well as some inappropriate behaviors. (Exhibit Z)

Student did not receive any speech and language therapy over the past three years. (Tr. 247) Witness agreed with the recommendation in the speech and language therapy evaluation for a total of 120 hours. This represents one hour per week for forty weeks for three years. (Exhibit Z) (Tr. 246) DOE did not offer any alternate recommendation. I find that 120 hours is appropriate.

COUNSELING

Witness recommended 23 hours of compensatory counseling. It is unclear on what basis this is being recommended. (Tr. 248) It is clear that Student did not receive some of their mandated services. I find that Student is entitled to receive make-up services. I find no grounds to award additional compensatory counseling services.

OCCUPATIONAL THERAPY

Witness reviewed the occupational therapy report. She opined that Student required occupational therapy and recommended that he receive an evaluation to guide the scope of the services. She opined that student should receive at least twenty-three hours of compensatory occupational therapy per year for the three years. (Tr. 225) She explained that in her testing of Student she saw that Student was slightly weaker with completing tasks that were not time. She described it as a “big red flag” for underlying motor difficulties. (Tr. 230) There were also indications in the Speech and Language evaluation of difficulty with certain writing tasks.

Student had not been mandated for occupational therapy. (Tr. 243) I find that without the results of an occupational therapy evaluation, it is difficult to assess what services Student should have received for occupational therapy. I find that evidence establishes that Student did require some occupational therapy. DOE did not raise any specific objections to the recommendation or offer any alternative. I find that requested number of hours which is approximately a half hour per week is reasonable.

REQUESTS FOR EVALUATIONS

OCCUPATIONAL THERAPY

I find that the evidence establishes that Student requires an occupational therapy evaluation. (Exhibits Z, VV and Y) I find Parent is entitled to an independent evaluation.

FUNCTIONAL BEHAVIOR ASSESSMENT AND BEHAVIOR INTERVENTION PLAN

Witness testified that Student showed no behavior concerns. Teacher described him as a “great role model” His school counselor described him as shy and kind. (Tr. 204) Parent described him as very responsive and cooperative. (Tr. 205) Witness stated that at the evaluation Student did not appear overly distracted or inattentive. (Tr. 205)

Witness recommended a functional behavior assessment and behavior intervention plan. (exhibit U) Based on Witnesses observations and testimony, I find no need for this assessment or plan at this time.

Swallowing Evaluation

As a result of the evaluation (Exhibit S) evaluator recommended a feeding and swallowing evaluation. I find that Parent is entitled to an independent evaluation.

REQUEST FOR REEVALUATION WITHIN ONE YEAR FOR SPEECH AND NEUROPSYCHOLOGICAL

I find no grounds at this time to award reevaluations for either a speech or neuropsychological evaluations within a year. I find it is premature and unknown what Student will require. It is also unknown what evaluations have been conducted during the 2021-2022 school year.

In summary, I find that the DOE failed to provide Student with a FAPE for the 2018-2019, 2019-2020 and 2020-2021 school year. I find that Student is entitled to compensatory services for the Special Instruction that was mandated and not provided. I find that Student is entitled to compensatory services for the counseling that was mandated and not provided. I find Student is entitled to compensatory services for occupational therapy that should have been provided. I find that Student is entitled to compensatory services for speech and language therapy that should have been provided. I find Student is entitled to some of the requested additional evaluations.

I find no evidence of discrimination based on Student’s disability.

I find no grounds to create the program for the 2020-2021 school year.

ORDER

DOE shall provide Student with a bank of 69 hours of occupational therapy hours by a provider of Parent’s choice at market rate. The services are valid for three years from the date of this decision.

DOE shall provide Student with a bank of 120 Speech-Language Therapy hours by a provider of Parent’s choice at market rate. The hours are valid for three years from the date of this decision.

DOE shall fund a bank of “make-up” services for Counseling that were mandated o and not provided during the three years. The implementation unit shall calculate the number of mandated hours for each service for the three years as well as the number of hours actually received during the three years in order to determine the amount of makeup hours owed to Student. Services shall be valid for three years from the time the number of services is calculated. Parent may use provider of their choice at market rate.

DOE shall fund a bank of “make-up” services for the special instruction that was mandated during the 2018-2019 and 2019-2020 school years and not provided. ^[1] The implementation unit shall calculate the number of mandated hours for each service for the three years as well as the number of hours actually received during the three years in order to determine the amount of makeup hours owed to Student.^[2] Services shall be valid for three years from the time the number of services is calculated. Parent may use provider of their choice at market rate.

DOE shall fund an independent occupational evaluation.

DOE shall fund an independent swallowing evaluation.

Sharyn Finkelstein IHO June 20, 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.

EVIDENCE ENTERED INTO THE RECORD EVIDENCE ENTERED INTO THE RECORD

PARENT

Exhibit

Description

Date

Pages

A Impartial Hearing Request 09/22/2020 16

B REDACTED Psychological Evaluation 11/20/2019 5

C REDACTED Social History Evaluation 11/20/2019 2

D REDACTED Educational Evaluation 12/02/2019 4

E Records Request via Fax 03/17/2021 8

F

REDACTED Services, P.C. Price Menu of Services

Undated

1

G Pendency Agreement in Case # 201673 11/16/2020 2

H FOFD in Case # 201673 04/21/2021 76

I Order on Consolidation in Cases 207500 & 201673 04/01/2021 1

J Amended Impartial Hearing Request 04/19/2021 16

K Interim Order 10/19/2021 7

L DOE Document Subpoena Undated 2

M Request for Records via Fax 03/17/2021 8

N Consent for Evaluations 11/20/2019 1

O REDACTED Preschool Evaluations 11/20/2019, 12/02/2019 12

P CPSE Meeting Notice 12/30/2019 1

Q Medical Form, Speech Referral and Immunization from New York Presbyterian Hospital Printed on 12/03/2019 4

R Child Outcomes Summary Form 01/14/2020 8

S DOE Classroom Observation 03/04/2020 1

T Prior Written Notice of Recommendation May 2020 05/15/2020 3

U Prior Written Notice of Recommendation June 2020 06/15/2020 4

V Related Service Form for Counseling Services 01/26/2021 3

W REDACTED Teacher Progress Report 04/23/2021 5

X Play Therapy Summer Report 05/03/2021 2

Y Neuropsychological Evaluation by REDACTED, Psy.D., BCBA NCSP 10/07/2021 17

Z REDACTED and Language Evaluation 10/14/2021 22

AA REDACTED SETSS Service Hours 12/02/2021 1

BB REdACTED Children Center SEIT Service Hours 12/02/2021 1

CC Webpage Procedural Safeguards Notice Printed on 05/03/2021 6

DD Part B Procedural Safeguards Notice 07/2017 51

EE Webpage of the New York State Next Generation English Language Arts Learning Standards Printed on 05/03/2021 4

FF New York State Next Generation English Language Arts Learning Standards 2017 129

GG Webpage of the New York State Next GenerationEnglish Language Arts Learning Standards Crosswalks Printed on 04/30/2021 3

HH Crosswalk between P-12 ELA Common CoreLearning Standards (2011) and the Revised NYS Next Generation ELA Learning Standards (2017) Main Summary 2017 14

II NYSED Kindergarten ELA Crosswalk 2017 7

JJ NYSED Prekindergarten ELA Crosswalk 2017 7

KK Webpage of the New York State Next Generation Mathematics Learning Standards Printed on 05/03/2021 3

LL New York State Next Generation Mathematics Learning Standards 06/2019 171

MM Webpage of the New York State Next Generation Mathematics Learning Standards Crosswalks Printed on 04/30/2021 3

NN The New York State Next Generation Mathematics Learning Standards Crosswalk Documents Undated 4

OO New York State Next Generation Mathematics Learning Standards Kindergarten Crosswalk Undated 8

PP New York State Next Generation Mathematics Learning Standards Pre-Kindergarten Crosswalk Undated 6

QQ

Webpage of the Resource Guides for School

Success in Early Learning

Printed on 05/03/2021

4

RR

Resource Guides for School Success in Early Learning the Pre-Kindergarten Standards

2019

81

SS The New York State Kindergarten Learning

2019

43

Standards

TT New York State Prekindergarten Foundation for the Common Core Undated 62

UU

Continuum of Special Education Services

Summer 2020

23

VV

Affidavit of REDACTED, M.S., C.C.C.-S.L.P.

04/25/2022

7

WW

SRO Decision No. 21-120

07/22/2021

21

XX Affidavit of REDACTED Undated 4

YY

Closing Brief

6/3/2022

16

DEPARTMENT OF EDUCATiON

IDENTIfICATION

1 Closing 6/3/2022 6

Footnotes

[1] As noted above Student had received mandated services for the 2020-2021 school year

[2] Parent’s attorney had requested the information on a number of occasions (Exhibits E and M)