New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 211270

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: February 8, 2022

April 13, 2022

May 19, 2022

May 23, 2022

June 21, 2022

July 22, 2022

August 19, 2022

September 12, 2022

October 14, 2022

December 5, 2022

January 6, 2023

Actual Record Closed Date: March 20, 2023

Hearing Officer: Judith Schneider, Esq.

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") was conducted remotely by me.

PROCEDURAL HISTORY

The proceeding was initiated at the request of the parents (hereinafter "the parent") by correspondence dated July 22, 2001. (Ex. A) I was appointed Impartial Hearing Officer on December 22, 2021. A prehearing conference was conducted on January 7, 2022. An amended hearing request dated February 4, 2022 was thereafter filed and amendment was granted. (Ex. B)

Parties moved to extend the compliance date on various occasions for settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence, receipt of the transcript and closing memoranda 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 for extensions of the compliance dates were granted.

The current compliance date is April 14, 2023. The record closed on March 20, 2023 upon my receipt of the hard copy of the parent's closing memorandum.

Positions of the Parties

The parent asserts that the district failed to provide a FAPE for the 2019-2020, 2020-2021 and 2021-2022 school years. Substantive and procedural defects in the IEPs created are alleged as well as failure to implement one of the IEPs. Further, the parent asserts that timely reviews were not provided as required for certain schoolyears. The parent seeks compensatory services: speech-language therapy-96.5 hours; 1:1 special instruction- 485 hours) and various independent educational evaluations ("IEEs") at reasonable prevailing market rates (speech-language, occupational therapy, neuropsychological).

The district did not submit a closing statement. Asserting that it intended to rely on parent documents it presented one document and no witnesses. It declined to cross examine the parent's witnesses and to present a rebuttal case. (T194, 320, 326, 373-374, 375) It did however indicate that it believed that some progress had been made in district programs.

Cases Presented

A list of documents in the record is appended. The district presented no witnesses. The parent presented the testimony of: the student's speech-language therapist ("the S-L provider"); the student's mother ("the parent")

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Factual Findings

Factual findings below were supported by persuasive evidence and were neither contested nor rebutted.

A CPSE IEP was created on January 7, 2020 for the 2019-2020 SY. The parent participated in the meeting and provided information which included family history of Autism. (T336-337, 344-345, 357, Ex. M) The Psychoeducational Evaluation dated November 8, 2019 specified certain concerns about the accuracy of the report. (Ex. DD) The CSE recommended a 10 month program of SEIT (1:1) 7.5 hours weekly and Speech Language Therapy ("SLT") 2x30 min. weekly (2:1) . (Ex, M) Occupational Therapy ("OT") was not provided although fine motor deficits had been reported. (Exs. C, FF) The student was classified as aa preschool student with a disability. (Exs. M, FF)

Speech services pursuant to the January 7, 2020 IEP did not commence until April 2021, 1 ¼ years after the IEP. (T236) The student had not previously received speech therapy. (T 242) The S-L provider persuasively testified as to her opinion that the student should have received 3x30 minute sessions weekly. (T256-257) She also persuasively testified as to her opinion that the SEIT service that had been provided by the CSE was inadequate and that the student should have received 2.5 hours daily (12.5 hours per wk.) (T258) No evidence contesting that conclusion was presented by the district and I note the S-L provider's substantial experience which includes working with children with autism. (T234, 248) Although the "Projected Date" for the next IEP was specified as January 7, 2021, the next CSE review occurred on October 29, 2021, months after the commencement of the 2021-2022 SY. (Ex. W) The CSE made no changes with regard to the services recommended.. (Ex. W)

No evidence has been presented to rebut the parent's claim that that the student had not been evaluated or screened for autism spectrum disorder ("ASD").

B. Conclusions

The parent seeks compensatory services of 1:1 special education instruction and speech-language therapy and also seeks IEEs for neuropsychological, speech-language and occupational therapy evaluations.

1) Compensatory Services

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student's unique needs, provided in conformity with a comprehensive written Individualized Education Program ("IEP") (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances" Endrew F. v. Douglas County Sch. Dist. 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR§200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student's IEP. School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof for the issues in this proceeding.

I conclude that the district has failed to establish that it provided a FAPE for each of school years at issue. Further, I note that allegations left unchallenged are deemed as true "unless found to be inconsistent with the evidence in the record." See Appeal No. 01-044; see also Appeal No. 12-006

With regard to the 2019-2020 SY, I note the failure to implement the district's speech language recommendation for the entirety of the period in that school year in which the IEP was in effect and the failure to recommend adequate SL services in view of the student's deficits each of which independently supports my conclusion.

With regard to the 2020-2021 SY, I note the CSE's failure to develop an IEP subsequent to the January 2020 IEP until October 2021. Further, I note the failure to provide any speech language services until April 2021 and that the services ultimately provided were insufficient in view of the student's deficits, I conclude that each of these independently supports my conclusion.

With regard to the 2021-2022 SY, I note the failure to have an IEP in place at the beginning of the school year as well as the provision of inadequate SL services.

Further, with regard to each school year, I find persuasive the testimony that the student required 2 ½ hours per day of 1:1 special education services. I note that the district has not contested or rebutted the evidence presented by the parent with regard to special education instruction and speech-language needs. I give no weight to any claim that the student made progress in the district's programs and note that the basis for such a claim was not articulated. Further, the burden of the district is to establish that its recommended programs were reasonably calculated to make appropriate progress in light of the student's deficits and the district has not presented evidence to support such a claim. Endrew F.

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) Further, "[i]f the student has become ineligible for special education by reason of age or graduation, compensatory education has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001])." Appeal No. 11-027. However, it is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209. "…[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.

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 parent's claim of entitlement to services based upon the number of hours of services the student should have received and did not has not been rebutted or specifically contested by the district. It is noteworthy that the district did not indicate the number of hours it believed would be appropriate in the event of a finding of a denial of FAPE, as I have concluded has occurred. See Appeal No. 11-091 and Appeal No. 14-014.

Further I conclude that the evidence does not support a basis for reduction/denial of services requested on equitable grounds.

Based upon the foregoing, I conclude that the student is entitled to receive: 485 hours of 1:1 special education instruction; 96.5 hours of speech language therapy (based upon the number of SL sessions recommended which were not provided and the additional services (SL and SEIT) I have found should have been recommended but were not.

2) IEEs

The parent seeks IEES as follows: Neuropsychological Evaluation which shall include consideration of a diagnosis of Autism Spectrum Disorder; Speech Language Evaluation; Occupational Evaluation.

The district has not articulated an objection to these evaluations. I conclude that the evidence supports the need for these evaluations to enable the CSE to develop an appropriate program. 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. Further, I note that the although these requests were made in both the July 2021 and February 2022 due process complaints, the district did not file a due process complaint challenging the basis for this request. 8 NYCTT 205(g) I conclude in the circumstances here that the district does not dispute the provision of them. ^[1]

ORDER

It is hereby ordered that:

1) The student is entitled to a "bank" of 485 hours of special education instruction and 96.5 hours of speech language therapy to be provided at market rates from qualified providers selected at the sole option of the parent. However, DOE providers may be utilized if acceptable to the parent. The district shall issue appropriate authorizations. The services provided must be utilized by August 31, 2026.

2) The district shall fund the following independent educational evaluations at reasonable market rates from evaluators selected at the sole option of the parent:

Neuropsychological Evaluation (including consideration of ASD, ADHD and Sensory Processing Disorder); Speech-Language Evaluation; Occupational Therapy Evaluation. The district shall issue appropriate authorizations. 3) The student is entitled to special education transportation or reimbursement for parentally provided transportation for compensatory services provided herein.

Date: April 4, 2023

_________/s/

JUDITH SCHNEIDER, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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.

EXHIBITS

District

1 OMITTED

2 IEP (Turning -5) 3/5/2022

Parent

A Due Process Complaint 7/22/2021 17pp

B Amended Due Process Complaint 2/4/2022 20pp

C CPSE Evaluations November 2019 24pp

D DOE Subpoena with subpoena-response Documents Various 132pp

E Index of Subpoena-response Documents Undated 2pp

F Email from DOE Records Room Manager 6/14/2022 1pg

G Letter to Parent from DOE 3/31/2022 2pp

H Prior Written Notice (PWN) 5/29/2022 4pp

I Consent Signed by Parent 3/31/2022 1pg

J SESIS Fax Cover Sheet Undated 1pg

K Social History Update 3/30/2022 4pp

L Email from CSE6 Social Worker 1/6/2020 1pg

M IEP 1/7/2020 14pp

N Preschool SEIT Acceptance Letter 1/8/2020 1pg

O Final Notice of Recommendation 1/7/2020 1pg

P A1P—Initial Authorization to Attend 1/7/2020 1pg

Q CSE Meeting Notice 3/11/2022 3pg R PWN 3/30/2022 4pp S PWN Proposal to Reevaluate 2/10/2022 3pp T PWN Speech Language Impairment 3/31/2022 4pp U Child Outcomes Summary Form 3/30/2022 1pg V Request for Reevaluation Referral by Teacher/Provider 2/10/2022 1pg W IEP 10/29/2021 21pp X Speech Language Progress Report 10/21/2021 3pp Y SEIT Progress Report 10/23/2021 3pp Z Signed Consent to Evaluate 11/8/2019 1pg AA Evaluation Checklist 11/26/2019 1pg BB Preschool Student Evaluation Summary Report 11/8/2019 2pp CC Confidential Social History 11/8/2019 3pp DD Psychoeducational Evaluation 11/8/2019 3pp EE Speech-Language Evaluation (CPSE) 11/20/2019 6pp FF Occupational Therapy Evaluation 11/15/2019 3pp GG Physical Therapy Evaluation 11/18/2019 3pp HH Classroom Observation 11/8/2019 2pp II Health Examination Form 11/6/2019 1pg JJ Home Language Identification Survey 11/8/2019 2pp KK Physician's Recommendation 11/6/2019 1pg LL Speech Therapy Authorization 11/26/2019 1pg MM Child Outcomes Summary Form 1/7/2020 12pp NN Social History Update (cover page) 3/30/2022 1pp OO SESIS Log 2/20/2022-6/14/2022 5pp

PP Consent for Use of Electronic Mail (unsigned) 2/10/2022 2pp

QQ Classroom Observation 3/3/2022 2pp

RR CSE Meeting Notice 3/11/2022 3pp

Impartial Hearing Officer

I Parent Closing Memorandum

Footnotes

[1] In light of the foregoing findings and conclusions, I do not address other claims made by the parent except to state my conclusion that I do not have jurisdiction to consider such claims as constitute a challenge to district policies generally.