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NYSED # 555731 / NYC # 211774
FINDINGS OF FACT AND DECISION
Case Number: 211774
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Roberta Wolf
Date of Filing: 8/25/2021
Hearing Requested by: Parent
Dates of Hearing: 4/4/2022, 4/8/2022
Record Close Date: 07/18/2022
Date of Decision: 07/29/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON April 4, 2022
For the Department of Education (DOE):
None
For the Student:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED ON April 8, 2022 For DOE:
[REDACTED]
For the Student:
[REDACTED]
[REDACTED], Parent
[REDACTED], Director, [REDACTED] Therapy Placement Services
[REDACTED], Physical Therapist
[REDACTED], Occupational Therapist
BACKGROUND
On August 25, 2021, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 211774, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)).[1]
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) by failing to provide services after its Committee on Special Education (CSE) convened a review meeting on June 29, 2021, to develop an Individualized Education Program (IEP) for the Student for the 2021-2022 school year.[2] The CSE recommended that the Student receive individual occupational therapy (OT) for 60 minutes, three times a week, for the 12-month, extended school year (the same as in the Student’s previous IEP for the 2020-2021 school year), but reduced his individual physical therapy (PT) from three 60-minute sessions to one 60-minute weekly session. The Parent now seeks: (1) reinstatement of three weekly PT sessions; (2) a Speech and Language (S/L) assessment and subsequent treatment; (3) enhanced rates of $210 per hour for both PT and S/L services;[3] and (4) an enhanced rate of $350 per hour for OT services.[4]
PROCEDURAL HISTORY
I was appointed impartial hearing officer (IHO) for this case on June 14, 2022, after a previously appointed IHO recused herself on June 13, 2022. DOE did not hold a resolution meeting, but at the pre-hearing conference held on January 21, 2022, asked for additional time to pursue settlement. The prior IHO granted the request and rescheduled the case for a status conference on February 18, 2022; however, DOE did not appear. The previous IHO then set the case for a hearing on April 4, 2022, and DOE again did not appear. The previous IHO rescheduled the hearing for April 8, 2022, which proceeded on the merits.
DOE did not file a Due Process Response, nor did it contest pendency resulting from a prior unappealed decision by an IHO issued on April 17, 2021 (decision 196520), ordering it to fund the Student’s PT and OT (three weekly sessions each) at an enhanced rate of $210 per hour for the 2020-2021 school year. At the instant hearing, DOE waived its opening statement, produced no witnesses, provided no documentary evidence, made no objections to the Parent’s evidence, and engaged in limited cross-examination focused on clarifying questions. In its closing statement, DOE contested the Parent’s request for an enhanced rate of $350 per hour for OT services because the Parent asked for $210 per hour in the DPC and did not amend it to reflect the higher rate.[5] The Parent presented four witnesses, six documents, and a closing brief. I convened the parties for a status conference on June 30, 2022. The record closed on July 18, 2022.
FINDINGS OF FACT
The Student is [REDACTED] years old student and his eligibility for special education supports and services is not in dispute. He is classified by the CSE as a student with a “Traumatic Brain Injury.”[6] Per the IEP: “He is ventilator and g-tube dependent. He is able to see shapes and shadows and has some hearing. He relies on his hearing to access different items in his environment. He is diagnosed with Traumatic Brain Injury, Seizure Disorder, Febrile Infection-Related Epilepsy Syndrome, Visual Impairment, and Chronic Respiratory Failure.... Parent: [the Student] is non-ambulatory... [He] cannot stand or walk. He requires total assistance to turn in the bed.”[7] The Student’s fragile medical condition is well-known to DOE and requires all educational programs and services to be provided at home.[8] Unable to participate in daily activities without support, he needs 24-hour nursing care.[9] His neurologist recommended at least three weekly, individual, 60-minute sessions of PT, as well as S/L therapy, describing PT as “absolutely essential... It is needed to maintain [his] current function and prevent further decline, including worsening respiratory and GI function, muscle contractures, and bone fractures. Sessions three times a week are needed; with lesser frequency, [he] is at too great [a] risk for regression between sessions.”[10] The Student previously showed improvement as a result of three-times weekly PT and regressed once it stopped.[11] The Student stopped receiving OT on June 1, 2021, when his provider no longer had therapists available.[12] PT and OT supported the Student’s ability to, for example, sit up and use assistive technology to respond to his home-instruction teachers.[13] Similarly, an S/L assessment and therapy would help the Student improve muscle tone to better communicate with teachers and the Parent.[14]
The Parent attended the CSE meeting on June 29, 2021, that developed the IEP for the Student’s 2021-2022 school year.[15] In preparation, she submitted a letter from the Student’s neurologist recommending three-times-weekly PT; however, the panel would not consider it,[16] deferring instead to its own evaluation conducted in 2019.[17] The Student had received special education services since 2015 and every year the Parent described his needs, but nevertheless, the CSE crafted his IEPs based only on the recommendations of its evaluator.[18] The 2019 evaluation only occurred because an IHO ordered it.[19] The Parent recalled that DOE’s evaluator arrived late for the appointment and when the Student was asleep (the evaluator went to the wrong house).[20] The evaluator never interacted with the Student and instead based his findings on an interview with the Parent.[21] When the Parent read the evaluation, she could not reconcile statements claiming that the evaluator observed the Student sitting up.[22] The Parent also noticed that the evaluator identified the Student by the wrong name.[23] The Parent told the CSE that she disagreed with its recommendation to reduce PT services because the Student’s doctor recommended three weekly sessions; nevertheless, the CSE informed the Parent that if she wanted more sessions, she would have to file a DPC.[24] The Parent asked for an S/L assessment (as she did every year) and the CSE finally verbally obliged, but no evaluator ever contacted her, and the IEP failed to memorialize DOE’s commitment.[25]
The Parent called every PT and OT provider given to her in a booklet provided by DOE and all of them refused to provide services for the Student.[26] However, when the Parent notified the CSE that she needed assistance finding PT and OT providers, it told her that it fulfilled its obligations by providing the aforementioned booklet and the Parent must locate services on her own.[27] The Parent found the Student’s current physical therapist through an independent search, and he began providing services in March 2022 for $210 per hour, the market rate for a patient with the Student’s extreme medical needs.[28] The Student needed PT three times per week because he could not undertake a regimen on his own and instead needed a therapist to physically move him to prevent deterioration of his condition.[29] With respect to occupational therapy, the Parent located one available therapist with experience treating children with traumatic brain injuries and complex medical needs; however, she charged $350 per hour, so the Parent had not yet hired her.[30]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[31] A FAPE “consists of educational instruction specially 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.”[32] To establish that DOE offered a FAPE, it must show that (a) the IEP developed by its CSE through the IDEA’s procedures was reasonably calculated to enable the student to receive educational benefits; and (b) DOE complied with the procedural requirements set forth in the IDEA.[33] An appropriate program requires an IEP to accurately reflect the results of evaluations to identify the Student's needs,[34] and provide for the utilization of sufficient special education services.[35] DOE must also provide “an IEP that is ‘likely to produce progress, not regression.’”[36]
Here, DOE contested none of the Parent’s evidence, including her assertion that she provided to the CSE a letter from the Student’s neurologist underscoring the importance of PT sessions administered at least three times weekly for 60 minutes, and S/L therapy. Nevertheless, the CSE ignored that recommendation in favor of a 2019 evaluation, apparently endorsing fewer PT sessions. However, the IEP itself made no reference whatsoever to that evaluation or its recommendations, nor did DOE offer it at the hearing. Moreover, DOE did not dispute the Parent’s testimony that the evaluator called the Student by the wrong name; never observed the Student because he was asleep; and made impossible claims about observing the Student sitting up. Nor did DOE explain why it would rely on those findings when the IEP itself characterized the Student as unable to stand, walk, or turn over in bed unassisted. Similarly, DOE did not dispute that the CSE verbally agreed to provide an S/L assessment. DOE offered no explanation for how the IEP was likely to produce progress, not regression, when it recommended fewer PT sessions than the Student’s neurologist stated were necessary to prevent regression, and no S/L assessment. Because DOE provided no basis, either in the IEP or at the hearing, for reducing the Student’s weekly PT sessions or denying an S/L assessment, I find that the CSE provided an IEP likely to cause regression rather than progress, and that it inaccurately reflected the results of evaluations to identify the Student's needs, resulting in a denial of FAPE.
Under New York State Education Law Section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an Individualized Education Services Program (IESP) from the public-school district in which the nonpublic school is located. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP.[37] Responsibility for the implementation of services called for in a student's IESP falls on DOE.[38] Furthermore, although it may be permissible for DOE to include the Parent in the identification of a particular service provided, “it does not follow that the responsibility to redress a parent’s inability to locate a provider is shifted permanently to the parent.”[39]
It is undisputed that DOE provided the Parent with a booklet of physical and occupational therapists, all of whom refused to provide services to the Student. It is also undisputed that DOE provided no additional assistance to the Parent in finding PT and OT providers after she requested that they do so, let alone in locating providers willing to work for less than $210 per hour and $350 per hour, respectively. Although DOE argued at the hearing that the Parent may not ask for more than $210 per hour for OT services because she failed to amend the DPC accordingly, the Parent need only amend the DPC when raising a new claim, not modifying the remedy sought.[40] Because the District failed to implement the IEP by failing to provide the PT and OT services recommended therein, DOE materially deviated from the IEP’s stated requirements and again denied the Student a FAPE.[41]
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE.[42] Such an award may be appropriate if a student has been denied appropriate services for an extended period and the deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he would have been in had the district complied with its obligations under the IDEA.[43] A compensatory education award can be crafted either quantitatively (based on the amount of time that comprised the FAPE deprivation) or qualitatively (focused on the student’s needs and educational deficits that resulted from the FAPE deprivation).
In this case, the Student received no S/L assessment or related therapy, and no OT for the entirety of the 2021-2022 school year, nor did he receive PT until March of 2022. The Student’s neurologist provided a letter warning of regression of the Student’s condition in the absence of three-times-weekly PT sessions, and the Parent testified to observing that regression when the Student’s PT stopped. This regression impeded the Student’s education by hindering his ability to communicate with his instructors and preventing his participation in home-instructional classes. Additionally, DOE only fulfilled its obligation to conduct a triannual evaluation (here conducted in 2019) after an IHO so ordered it. This evidence establishes a denial of services and a likelihood that those denials will continue if the District relies upon the 2021-2022 IEP as currently drafted. As a result, compensatory services are warranted to address the student’s needs and deficits that resulted from the FAPE deprivation, as is an Order granted in favor of the Parent to be implemented forthwith.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that the Student’s most recent IEP currently in effect as of the date of this Order is hereby amended, effective from the date of this Order, to reflect:
“Related Service: Physical Therapy, Individual (1:1), 3 times per week, 60 minutes.”
- • FURTHER ORDERED that the Student is entitled to Physical Therapy sessions to be administered individually, three times a week, 60 minutes each, for the 12-month, extended 2021-2022 school year (138 sessions total).
- • FURTHER ORDERED that DOE shall fund the Student’s 138 Physical Therapy sessions (less any PT sessions already provided to the Student during the 2021-2022 school year) at a rate not to exceed $210 per hour, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice.
- • FURTHER ORDERED that DOE shall reimburse the Parent for any Physical Therapy sessions or portions of sessions for which the Parent paid out of pocket during the 12-month, extended 2021-2022 school year, within 30 days of the Parent’s submission of proof of payment.
- • FURTHER ORDERED that the Student’s bank of compensatory PT services allotted herein shall not expire for two years from the date of this Order.
- • FURTHER ORDERED the DOE shall fund the Student’s Occupational Therapy sessions (less any OT sessions already provided to the Student during the 2021-2022 school year) to be administered individually, three times a week, 60 minutes each, for the 12-month, extended 2021-2022 school year (138 sessions total), at a rate not to exceed $350 per hour, and shall issue payment to the provider of the Parent’s choosing within 30 days of receipt of a copy of the invoice.
- • FURTHER ORDERED that DOE shall reimburse the Parent for any Occupational Therapy sessions administered during the 2021-2022 school year for which the Parent paid out of pocket, within 30 days of the Parent’s submission of proof of payment.
- • FURTHER ORDERED that the Student’s bank of compensatory OT services allotted herein shall not expire for two years from the date of this Order.
- • FURTHER ORDERED that, at the Parent’s preference, DOE shall either (1) provide an S/L assessment; or (2) fund an S/L assessment using a provider of the Parent’s choosing, within 90 days of the date of this Order, at the provider’s normal and customary rate not to exceed $1,400, and shall issue payment directly to the provider within 30 days of submission of a copy of the evaluation and invoice.
- • FURTHER ORDERED that the CSE team shall meet within 14 school days after the ordered S/L therapy evaluation has been made available to the District, to evaluate the new data (i.e., the contents of the evaluation) and decide what changes, if any, are appropriate to the Student’s IEP and the services offered to the Student given the findings of the evaluator.
SO ORDERED.
DATED: July 29, 2022
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
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’S EVIDENCE
None.
PARENT’S EVIDENCE
Exhibit
Title
Date
Pages
A Due Process Complaint 8/24/2021 8
B 2021 IEP 6/29/2021 15
C FOFD No. 196520 4/17/2021 11
D Letter from [REDACTED] 7/23/2021 2
E Physical Therapy Progress Report 6/1/2021 2
F Medical Record 2/18/2022 5 Footnotes
[1] Ex. A.
[2] Ex. B.
[3] Ex. A-2, A-7-A-8.
[4] Tr. 29 9-17.
[5] Tr. 118 17-25, 119 1-2.
[6] Ex. B-2.
[7] Id.
[8] Ex. B; Tr. 29 4-25.
[9] Tr. 305-7.
[10] Ex. D.
[11] Tr. 110 22-25, 111 1-9.
[12] Tr. 41 17-24, 42 1-10, 43 5-8, 46 5-8, 13-14.
[13] Tr. 110 4-25, 111 1-19.
[14] Tr. 90 13-22, 94 17-25, 95 1-4.
[15] Ex. B-15.
[16] Tr. 97 1-4, 18-20.
[17] Tr. 99 8-9, 106 9-17.
[18] Tr. 95 11-15, 104 22-25, 105 1-10.
[19] Tr. 10622-25, 107 5-6.
[20] Tr. 105 17-23.
[21] Tr. 105 17-25, 106 1-8.
[22] Tr. 106 1-5.
[23] Tr. 106 5-8.
[24] Tr. 98 20-25, 99 1-14.
[25] Tr. 98 16-19, 99 15-20, 113 13-25, 114 1-2.
[26] Tr. 108 11-20.
[27] Tr. 108 22-25, 109 5-23.
[28] Tr. 60 20-25, 61 1-2.
[29] Tr. 57 11-18, 58 9-25, 59 19-25, 60 1-16.
[30] Tr. 78 15-20, 85 4-16, 86 12-23.
[31] U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[32] Bd. of Ed. v. Rowley, 458 U.S. 176, 188-189 (1982).
[33] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[34] C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320(a)(2); 8 NYCRR 200.4(d)(2)(iii).
[35] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[36] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[37] Id.
[38] NY Educ. Law § 3602-c(2)(a).
[39] Application of Student with a Disability, Appeal No. 17-034.
[40] NYCRR 200.5(j)(1)(ii); 20 U.S.C. 1415(f)(3)(B).
[41] Catalan v. District of Columbia, 478 F. Supp. 2d 73, 47 (D. D. C. 2007).
[42] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[43] Id.