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Special Education Law
DECISIONParent PrevailedIHO Case No. 212525

New York City Department of Education, Impartial Hearing Decision

February 22, 2022·Peter D. Hoffman·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

SED # 556508 NYC # 212525

FINDINGS OF FACT AND DECISION

Case Number: 212525

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested by: [REDACTED]

Date of Hearing: January 6, 2022

Record Close: February 22, 2022

Hearing Officer: Peter D. Hoffman

NAMES AND TITLES OF PERSONS WHO APPEARED JANUARY 6, 2022

For the Student:

[REDACTED], Advocate Via Telephone

[REDACTED], Parent Via Telephone

[REDACTED], Special Education Teacher Via Telephone

For the Department of Education:

[REDACTED], District Representative Via Telephone

INTRODUCTION

This case was brought before me pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). The hearing demand / complaint letter was filed by the parent on September 1, 2021. P-A.[1] The hearing was held on January 6, 2022. It was largely a hearing based upon two affiants for the parents and no case put on by the district. In essence, the district did not provide any case in this matter. They produced no witnesses, produced no exhibits or documents, performed no cross examination of the parents’ witnesses and waived the right to provide a post hearing memorandum as allowed by law and requested by the hearing officer.

The student is a [REDACTED] old girl who is diagnosed with visual impairment, (P-L, p.2), dyslexia, (P-L, p.9), and Anxiety, (P-L, p. 8).

The parents closing brief spells out the relief sought as follows:

“1. For compensatory relief for past school years, 2019-2020 and 2020-2021, the parent seeks an award of a. 5 hours per week, of special reading instruction from a Reading Specialist, trained in [REDACTED] or [REDACTED] methods of instruction, at market rate for the 19-20 and 20-21 school years, respectively. In total, this amounts to 400 hours per week (40 weeks per school year, 5 hours per week, two school years). b. 5 periods of Special Education Teacher Support Services. In total, this amounts to 400 hours per week (40 weeks per school year, 5 hours per week, two school years).

2. For the 21-22 school year, the parent seeks an order finding that student should receive 5 hours of reading instruction as well as 5 hours of SETSS services, for the 40-week school year, with all services not provided for until such time as the Fact and Final Decision is rendered, to be authorized as compensatory services, at market rate.”

Parent’s closing brief, p.5.

JURISDISCTION

  • • A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act, (IDEA), 20 U.S.C. § 1400 et seq., and its implementing regulations, 24 C.F.R. §300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § 200.

BACKGROUND / FINDINGS OF FACT

The student is a [REDACTED] girl in the third grade. T:23. The student is a REDACTED-year old girl who is diagnosed with visual impairment, (P-L, p.2), dyslexia, (P-L, p.9), and Anxiety, (P-L, p. 8).

Since 2018 the district has known that the student has impairments in reading. P-C. Notwithstanding, the district did not offer an Individualized Education Plan, (IEP), or an Individualized Education Service Plan, (IESP). The parent initiated the process for determining whether there should be an IEP in 2018. T:24.

Due to the failure of the district to provide an IEP or IESP in 2018 and the student’s ongoing struggles the parents sought an independent evaluation. T:27. The evaluation was completed by [REDACTED] PSY.D. P-L in June of 2021. This report specifically diagnosed the student with dyslexia. The parent at the end of 2020 asked the school district for another evaluation and did not hear back. T:30. In April of 2021 the parent asked the district for an Independent Education Exam, (IEE) and the district paid for Dr. [REDACTED] evaluative report. T:47. Dr. [REDACTED] recommended the following:

“1. Given [REDACTED] current learning needs, it is essential that she meet with a reading specialist (1:1 at a minimum of 5 x 60) who is trained in a multi-sensory reading approach such as Orton Gillingham, Wilson, or [REDACTED]. General tutoring will not suffice. [REDACTED] requires specialized intervention for children who have dyslexia and related difficulties. If an appropriately trained SETSS provider cannot be provided by the NYC DOE, [REDACTED] should be provided with a P4 voucher at enhanced rate to obtain the services in the community. She requires explicit, comprehensive, and specialized instruction which will include the following:

a. Systematic and direct instruction in letter-sound association, phonemic awareness, decoding, and ultimately sight word recognition. b. Assisted practice to improve reading fluency or speed of accurate decoding and increased familiarity with linking orthographic patterns to word meanings. Words should be practiced until they can be read fluently.

Encouraging reading aloud is also an effective way to improve fluency. c. Teaching to mastery. d. Enriched language experiences including listening to, talking about, and telling stories. e. Scaffolding by providing emotional support and gradually incremented challenges. f. Assistance in visual scanning and attention to make sure that she does not skip words or lines. g. Provide [REDACTED] with a word list to help her during writing tasks. h. It is important that [REDACTED]’s reading progress be monitored. For example, her mastery of the curriculum should be tested regularly (e.g., every 4 to 6 weeks) with formal measures of oral reading accuracy and fluency, as well as comprehension.

2. [REDACTED] should be provided with individual P3 Special Education Teacher Support Services to address her weak reading and spelling abilities.

3. If [REDACTED] fails to make appropriate progress with the above mentioned supports, she should be placed in a small, structured self-contained special education classroom setting within a small school environment with professionals who are specifically trained to teach children with average intelligence, but who also experience difficulties with learning. [REDACTED] should be provided with intensive reading remediation.

4. [REDACTED] should receive testing accommodations on all standardized and nonstandardized tests:

a. She should take tests in a separate location to minimize distraction. b. Due to her slow reading rate, she requires extended time (150%) on all exams. c. Questions and directions should be read aloud and repeated as needed.

5. To target [REDACTED]’s vulnerability to inattention, the following strategies may be employed in the classroom:

a. Delivery Style: Educators should speak in a clear, animated, and audible tone. Gestures that enhance the message and a slower speaking rate will increase comprehension. a. Preferential Seating: [REDACTED] should have the opportunity for preferential seating. Specifically, she should be seated where both auditory and visual stimuli are optimally received. Ideally, she should be away from noise and distracting external stimuli. b. Multimodal Presentation of Information: [REDACTED] will benefit from increased structure and organization with learning new information or when she is expected to complete work independently. [REDACTED]’s teachers should attempt to present material in a multi-modal format. c. Task Completion: Follow a less desirable activity with a more desirable one, making completion of the first necessary to perform the second.

6. Overcoming Dyslexia by [REDACTED] M.D. can be a useful resource. Additionally, the [REDACTED] has helpful information related to dyslexia as well. Please visit: [REDACTED]”

P-L, pp. 9-11.

After these recommendations, the parents took the student for specific reading instruction at [REDACTED] T-50.A CSE Meeting also followed where the district again refused to provide services. T:51-52. In response the parent hired a tutor who used the Bargain Method, a structured approach to reading instruction and the student made progress. T:53. The student saw the reading specialist four times a week for an hour each session. T:60. But at this point the student had languished for three years without any district provided services.

STANDARD OF REVIEW

  • • This is a compensatory education matter. An IHO’s inquiry into matters brought pursuant to the IDEA involves two distinct elements. First, the hearing officer must determine whether the school system has complied with the procedures set forth in the IDEA. Rowley at 176. Second, the IHO must assess whether the IEP developed through those procedures was reasonably calculated to enable the child to receive educational benefits. Id.
  • • A procedural violation can be denial of a FAPE if it: (1) impeded the child's right to a FAPE; (2) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a [FAPE]; or (3) caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii); A.D. v. New York City Dep't of Educ., 2013 U.S. Dist. LEXIS 38757 (S.D.N.Y. Mar. 19, 2013). Internal quotations omitted). “Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.” Id.
  • • The Supreme Court in Rowley did not explain what educational benefits means but this changed with its decision Endrew F. V. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988. (2017). The Court held that an IEP and placement must “be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Id. at 999. Endrew also clarified what deference meant in IDEA cases by requiring that the actions of the authorities be “cogent and responsive.” Id. at 1002.

Compensatory services can take many forms, as the point is to provide services that will make the student whole, with regard to the educational deprivation that the student has experienced. In Draper v. Atlanta, 518 F.3d 1275 (11th Cir. 2008), at 1284, the court concluded that “the provision of a public-school option does not preclude an award of placement in a private school by a court,” as compensatory services. The decision also explains that a “disabled student is not required to demonstrate that he cannot be educated in a public setting.” Ibid., at 1285. The court further explained that whereas an educational program must be” reasonably calculated to enable the child to receive educational benefits, “quoting Rowley, 458 U.S. at 206- 07, when it comes to compensatory services, more than that is required; i.e., in the words of the Draper decision, “… compensatory awards must do more, - they must compensate....

Compensatory awards should place children in the position they would have been in but for the violation of the Act. [IDEA]” Ibid., at 1289.

  • • Furthermore, the Draper court explained that IDEA does not “foreclose a compensatory
  • • award of placement in a private school.” And when such an award is considered, the parent is “not required to prove that the School System was incapable of providing … an appropriate education.” Ibid., at 1286. With regard to determining what is an appropriate equitable remedy for compensatory services, it is proper to go back in time even for many years. The Third Circuit
  • • explained as follows: “… absent one of the two statutory exceptions found [in section] 1415 (f)
  • • (3)(D), parents have two years from the date they knew or should have known of the violation to request a due process hearing through the filing of an administrative complaint and that, assuming parents timely file that complaint and liability is proven, Congress did not abrogate our
  • • longstanding precedent that a “disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify.” Here, where compensatory education and evaluations are sought do not require any further analysis other than the failure of FAPE. Where deprivation of FAPE is found, or conceded as it has been in this case, the IDEA allows a hearing officer to fashion a remedy that he or she finds appropriate under the circumstances, including but not limited to “ordering a local educational agency to comply with procedural requirements under this section,” 20 U.S.C. § 1415(f)(3)(E)(iii), and awarding compensatory education and additional services tailored to meet the unique circumstances of the case. 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5); see also P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).

DISCUSSION

POINT I

THE DISTRICT FAILED TO OFFER A FAPE TO THE STUDENT

  • • The district has the burden of proof to show that their program will provide FAPE. The district failed to answer the parent’s complaint and did not rely on its Prior Written Notice if there was one. The district did not carry its burden of proof when it decided to not supply any witness to support their position on the appropriateness of the program offered. The district further cemented that it did not meet its burden concerning the appropriateness of its program when it failed to argue that the program was appropriate in a post hearing brief.[2] The burden of proof is on the district to show that its IEP and program are appropriate. New York Educ. Law. §4404(1)(c). The district did not even try to address the burden of proof to show that the IEP and program offered were appropriate for the student. Therefore, the district failed to show that the IEP and / or program offered provided FAPE to the student. Moreover, the parent showed, through unrebutted testimony, that the district offered no specialized education for the student. Accordingly, the district failed to provide FAPE to the student for the 2018-2019, 2019-2020 and 2020-2021 school years.

Procedural violations warrant relief only if they "'(I) impeded the child's right to a [FAPE]; (II) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of [a FAPE] to the parents' child; or (III) caused a deprivation of educational benefits.'" Id. (alteration in original) (quoting 20 U.S.C. § 1415(f)(3)(E)(ii)).

  • • C.H. v. Goshen Cent. Sch. Dist., 2013 U.S. Dist. LEXIS 44991, *23, (SDNY, 2013). R.E. v. New York City Dep't. of Educ., 694 F. 3d 167, 192-193 (2d Cir. 2012) (footnote and citations omitted).

POINT II

CHILS FIND

Child find" refers to a local school district's obligation to provide special education services to disabled students placed by their parents in private schools. See 20 U.S.C. § 1412(a)(10)(A)(ii)(II); 34 C.F.R. § 300.131(b).

Even absent a referral from the parents, the district had a duty to fulfill its child find obligations under the IDEA and Section 504. The "child find" provisions of the IDEA place an affirmative duty on state and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the state. (20 U.S.C. § 1412[a][3l[A]; 34 C.F.R. § 300.125[al[ll[i]; 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]; Application of a Child with a Disability, Appeal No. 06-073; Application of a Child with A Disability, Appeal No 04-054; Application of a Child with a Disability. Appeal No. 93-41). Both the Federal and State regulations make clear that a school district's obligation to evaluate extends to all children "suspected" of having a disability, not just to students who ultimately are determined by a CSE to be "a child with a disability." See 34 C.F.R. Sec.300.111 (c)(i); New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 [N.D.N.Y. 2004]. The "child find" duty requires referral for an evaluation when the district "has reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (Dept. of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190 [D. Haw. 2001]; see 8 NYCRR 200.2, 200.4). The provision applies to children who are suspected of being a student with a disability and in need of special education, even though they are advancing from grade to grade (34 C.F.R. § 300.125[al[2l[ii]; see 8 NYCRR 200.4).

Here the district utterly failed to identify the student as a student with a disability.

PONT III

THE EQUITIES

The authority to grant relief is discretionary and therefore when deciding on the extent of services to award parents, courts may take into account equitable factors. (Carter, 510 U.S. 7; Burlington at 369-70. Also see, G.B. v. Tuxedo Union Free Sch. Dist., 2010 U.S. Dist. LEXIS 124319 *61 (S.D.N.Y. Sept. 30, 2010); M.C. ex rel. Mrs. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000); Frank G., 459 F.3d at 363-364; Gagliardo, 489 F.3d at 112. Under IDEA, the relief may be reduced or denied if parents fail to make their child available for evaluation by the district, fail to provide notice of the unilateral placement or if the actions taken by the parents are found to be unreasonable.

The parents cooperated with the district. They provided timely ten days’ notice. The parents attended and vigorously participated in CSE Meetings. The parents genuinely sought to find providers. Accordingly, the equities favor the parents request for services.

DECISION AND ORDER

I am ordering the district to provide the following services:

1. Compensatory relief for past school years, 2019-2020 and 2020-2021, the parent seeks an award of a. 5 hours per week, of special reading instruction from a Reading Specialist, trained in [REDACTED] or Orton Gillingham methods of instruction, at market rate for the 19-20 and 20-21 school years, respectively. In total, this amounts to 400 hours per week (40 weeks per school year, 5 hours per week, two school years). b. 5 periods of Special Education Teacher Support Services. In total, this amounts to 400 hours per week (40 weeks per school year, 5 hours per week, two school years).

2. For the 21-22 school year, the parent seeks an order finding that student should receive 5 hours of reading instruction as well as 5 hours of SETSS services, for the 40-week school year, with all services not provided for until such time as the Fact and Final Decision is rendered, to be authorized as compensatory services, at market rate.

In addition, I am also ordering that the CSE convene to prepare an IEP or IESP for this student.

Dated: 2/22/22

Katonah NY ______________________________

By, Peter D. Hoffman, IHO

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 proceedings 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.

PARENT EXHIBITS

Exhibit:

Document Description

Date of Document

Number of Pages

A Impartial Hearing Complaint 09/01/2021 6

B Social History 02/06/2018 3

C Psychoeducational Report 02/27/2018 5

D Speech-Language Evaluation 02/27/2018 5

E Prior Written Notice 05/02/2018 2

G Ineligibility Letter 04/26/2018 1

H Special Education Teacher Report 06/13/2018 1

I Vision Examination 05/21/2019 3

J Neuropsychological Assessment 05/20/2021 9

K Psychoeducational Evaluation Report 05/20/2021 7

L Confidential Neuropsychological Evaluation 06/20/2021 17

M Learning Ability Evaluation Summary – [REDACTED] 06/18/2021 4

N IEP Summary 08/05/2021 3 Footnotes

[1] Parent’s exhibits will be denoted at P-. District exhibits will be denoted as D-. Transcript reference will be denoted as T:

[2] The district failed to provide a post hearing brief as allowed by law and as requested by the hearing officer.