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Special Education Law
DECISIONParent PrevailedIHO Case No. 215855

New York City Department of Education, Impartial Hearing Decision

November 27, 2022·Marcel P. Denis·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.

CASE NUMBER: 559876 - NYC: 215855

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: PARENTS

Record Close Date: NOVEMBER 27, 2022

Hearing Officer: Marcel P. Denis, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON September 28, 2022

For the Student:

REDACTED, Attorney

For the Department of Education:

REDACTED, District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 24, 2022

For the Student:

REDACTED, Attorney

For the Department of Education:

REDACTED, District Representative

INTRODUCTION

On September 9, 2021, the parent (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) alleging denial of FAPE for the 2021-2022 school years (case no. 215855). I was appointed as impartial hearing officer (“IHO”) on January 27, 2022. The first Pre-conference hearing was held on February 2, 2022. Pendency was an issue and the parties agreed to hold a pendency hearing on February 10, 2022. Subsequent to the pendency hearing, the Parent filed an amended DPC on February 18, 2022 which the DOE accepted on May 17, 2022. An order of pendency was issued on March 9, 2022. Hearing on the merits was held on September 28, 2022 and October 24, 2022. The DOE did not present a case.

Lists of the documentary evidence submitted are appended to this Order. The compliance date for issuing a decision in this proceeding has been extended (IHO Ex. I).

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is an REDACTED -year-old REDACTED student who was diagnosed with Attention Deficit Hyperactivity (“ADHD”), Specific Learning Disorders in reading (Dyslexia) and writing (Dysgraphia), and Unspecified Communication Disorder (P-Exs. A, U). As a result of the Student’s classification, the Student suffers “with delays in writing, drawing, and other fine motor tasks” together with sensory issues with food/textures and attention span (P. Exs. A, F, J-N and P). The Parent maintains that the Student was evaluated and the DOE was provided with the evaluation reports containing a number of recommendations, including one-to-one instruction, which the DOE ignored (P. Ex. U). The Parent further states that the DOE informed them that in order to develop a program for the Student, it would have to conduct “its own evaluation but [the DOE] never conducted an AT evaluation nor [ ]recommend[ed] an Assistive Technology” (P. Ex. U). The Parent also maintains that the CSE convened a meeting on October 2021 and issued an IEP that classified the Student as Speech/Language Impaired and “recommended Integrated Co-Teaching Services (“ICT”) in Math, ELA, Social Studies and Sciences 5x per week (each) for a period in a general education classroom; Counseling Services 1x30x1:1; OT 2x30x1:1; SLT 2x30x1:1 [for a] 10-month school year” (P. Exs. A, U). While the IEP meeting took place in October 2021, “the DOE did not provide the Parent with a school assignment until on or about January 4, 2022” (P. Ex. U). The Parent asserts that she “promptly contacted the assigned public school and learned that it did not provide the 1:1 required instruction and would not be an appropriate placement for [the Student]” (P. Exs. A, U). The Parent presented the affidavit testimony of the Student’s SEIT teacher who testified that the Student is below third grade level with “delays across all academic subjects” (P. Ex. R). The Student’s teacher further asserts that remedial measure in the form of a bank of compensatory hours is warranted to bring the Student to Grade level and to make up services not received during summer breaks (P. Ex. R). The Student’s mother also testified via affidavit that the Student struggles without 1:1 SEIT and requested that the DOE continues to provide the Student with 1:1 instruction but to no avail (P. Ex. U). The mother further testified that the failure to receive a timely placement letter from the DOE left her with “no choice but to continue enrollment at REDACTED in a class of 20 students and 2 teachers” (P. Ex. U). The mother asserted further that the Student received no OT services as per the pendency mandate but “through a bank of 40 compensatory hours” (P. Ex. U). The mother also testified that the OT providers informed her that the Student needs to continue receiving OT in order to make progress (P. Ex. U). The Parent asserts that the DOE’s failure to generate an IEP based on the recommendations found in the evaluation reports together with the numerous requests made by the parent results in a denial of FAPE. The DOE presented no witnesses or evidence to controvert the parent’s allegations (September 28, 2022 Tr. 74).

The Parents submitted a documentary evidence package, which included the Ten-Day Notice from Parents to the CSE informing them of the inadequacy of the IEP and the parents’ intention to continue enrollment at REDACTED. The parents’ evidentiary package was entered into evidence without objections (September 28, 2022 Tr. 74, 78). The DOE submitted no documentary evidence and presented no case (September 28, 2022 Tr. 74).

FINDINGS OF FACT AND DECISION

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[1]

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP must be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

An IEP must be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

§ 300.115 Continuum of alternative placements.

(a) Each public agency must ensure that a continuum of alternative placements is available to meet the needs of children with disabilities for special education and related services.

(b) The continuum required in paragraph (a) of this section must

(1) Include the alternative placements listed in the definition of special education under § 300.38 (instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions); and

(2) Make provision for supplementary services (such as resource room or itinerant instruction) to be provided in conjunction with regular class placement

Pursuant to the Decision in L.O. v. New York City Dep't of Educ., 822 F.3d 95 (2d Cir. 2016), "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190.

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley, 458 U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade... is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho RV Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability... shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

Under New York State law, parents of a New York State resident student with a disability who is placed in a nonpublic school and who seeks to obtain educational “services” for his or her child may file a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law §3602-c [2]). Such “services” include “education for students with disabilities”, which means “special educational programs designed to serve persons who meet the definition of children with disabilities set forth in Education Law §4401(1); Education Law §3602- c[1][a], [d]. “Boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Education Law §3602-c[2][a]. In such circumstances, the district of the location’s CSE must review the request for services and “develop an [IESP] for the student based on the student’s individual needs in the same manner and with the same contents as an [IEP]” (Education Law §3602-c[2][b][1]. The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district”. Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendations of the CSE pursuant to the impartial hearing and State-level review provisions of Education Law § 4404. See Application of the Board of Educ., Appeal No. 18-088.

8 NYCRR 200.4(e)(3) provides in part:

The school district shall ensure that the recommendations on a student’s IEP, including changes to the IEP made pursuant to subdivision (g) of this section, are implemented, including but not limited to:

(i) ensuring that each regular education teacher, special education teacher, related service provider, and/or other service provider, as defined in section 200.2(b)(11)(i)(a) of this Part, who is responsible for the implementation of a student’s IEP, is provided a paper or electronic copy of the IEP prior to the implementation of such IEP or shall be able to access such student’s IEP electronically. If the board of education or board of trustees adopts a policy that the student's IEP is to be accessed electronically, then such policy shall also ensure that the individuals responsible for the implementation of a student's IEP shall be notified and trained on how to access such IEPs electronically; (iii) ensuring that each regular education teacher, special education teacher, related service provider, other service provider, supplementary school personnel as defined in section 200.1(hh) of this Part, and other provider and support staff person has been informed, prior to the implementation of the IEP, of his or her responsibility to implement the recommendations on the student's IEP, including the responsibility to provide specific accommodations, program modifications, supports and/or services for the student in accordance with the IEP;

As provided in 8 NYCRR 200.6(e):

Related services shall be recommended by the committee on special education to meet specific needs of a student with a disability as set forth in the individualized education program (IEP).

(1) The frequency, duration and location of each such service shall be in the IEP, based on the individual student's need for the service.

(2) For students with disabilities determined to need speech and language services, the total caseload of such students for teachers providing such services shall not exceed 65.

(3) When a related service is provided to a number of students at the same time, the number of students in the group shall not exceed five students per teacher or specialist except that, in the city school district of the city of New York, the commissioner shall allow a variance of up to 50 percent rounded up to the nearest whole number from the maximum of five students per teacher or specialist.

(4) A student with a disability may be provided with more than one such service in accordance with the need of the student.

(5) Related services may be provided in conjunction with a regular education program or with other special education programs and services.

200.6 Continuum of services.

(a) A student with a disability shall be provided with appropriate special education.

(1) Students with disabilities shall be provided special education in the least restrictive environment, as defined in section 200.1(cc) of this Part. To enable students with disabilities to be educated with nondisabled students to the maximum extent appropriate, specially designed instruction and supplementary services may be provided in the regular class, including, as appropriate, providing related services, resource room programs and special class programs within the general education classroom.

(2) A student with a disability shall be provided the special education specified on the student’s IEP to be necessary to meet the student's unique needs.

(3) Students with disabilities placed together for purposes of special education shall be grouped by similarity of individual needs as defined in section 200.1(ww) of this Part, in accordance with the following:

(i) The range of academic or educational achievement of such students shall be limited to assure that instruction provides each student appropriate opportunities to achieve his or her annual goals. The learning characteristics of students in the group shall be sufficiently similar to assure that this range of academic or educational achievement is at least maintained.

(ii) The social development of each student shall be considered prior to placement in any instructional group to assure that the social interaction within the group is beneficial to each student, contributes to each student's social growth and maturity, and does not consistently interfere with the instruction being provided. The social needs of a student shall not be the sole determinant of such placement.

(iii) The levels of physical development of such students may vary, provided that each student is provided appropriate opportunities to benefit from such instruction. Physical needs shall be considered prior to determining placement to assure access to appropriate programs. The physical needs of the student shall not be the sole basis for determining placement.

(iv) The management needs of such students may vary, provided that environmental modifications, adaptations, or, human or material resources required to meet the needs of any one student in the group are provided and do not consistently detract from the opportunities of other students in the group to benefit from instruction.

(b) Staffing requirements pursuant to Part 80 of this Title.

(1) When a remedial service is included in the individualized education program, such service shall be provided by appropriately certified or licensed individuals.

(2) When a transitional support service is included in the individualized education program to be provided to teachers of a student with a disability, such service shall be provided by personnel appropriately certified or otherwise qualified in each area of service.

(3) Related services shall be provided by individuals with appropriate certification or license in each area of related service.

(4) Special education instruction shall be provided by individuals appropriately certified or licensed pursuant to Part 80 of this Title.

(5) An administrator or supervisor of special education programs serving more than 25 percent of his or her assignment in such capacity shall hold a certificate valid for administrative and supervisory service pursuant to Part 80 of this Title.

(6) When specially designed reading instruction is included in the individualized education program, such instruction may be provided by individuals qualified under section 80-2.7 or sections 80-3.3, 80-3.7(a)(3)(iv) and 52.21(b)(3)(xi) of this Title as applicable. For purposes of this paragraph, specially designed reading instruction shall mean specially designed individualized or group instruction or special services or programs, as defined in subdivision 2 of section 4401 of the Education Law, in the area of reading and which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs.

(c) Transitional support services prescribed in the individualized education program (IEP) shall be provided for a teacher upon the recommendation of the committee on special education and shall be specified in the student’s IEP. When the provision of a transitional support service is under consideration by a committee on special education, the teachers of the student for whom the service is being considered shall be given the opportunity to participate in the meeting of the committee for the purpose of advising the committee of the extent to which such services are needed.

A board of education may be required to pay for educational services obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 [1985]). The failure of a parent to select a program known to be approved by the state in favor of an unapproved option is not itself a bar to reimbursement (Florence County School Dist. Four v. Carter, 510 U.S. 7 [1993]).

COMPENSATORY SERVICES

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31F.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). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12- 135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). 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. Reid, supra at 526.

Compensatory Education The Parent requests compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE for the 2021-2022 school year. 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 FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such 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. Compensatory education may be awarded to students under the age of twenty-one (see Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA (P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)).

The Student experienced a FAPE deprivation and denial of appropriate services for the period stated in the DPC. The DOE failed to note its objection to Parents’ assertion that the DOE failed to provide the Student with a FAPE, or even took any specific position with respect to the type or scope of compensatory education that would be appropriate if I found that there was a FAPE deprivation.

The Parents request a total of 88.5 hours of 1:1 compensatory and make up individual special education instruction; 37 hours of compensatory counseling; 46 hours of compensatory parent training; 13 hours of Speech-Language Therapy Multisensory Reading Instruction as compensatory services for the FAPE deprivation. The Parents arrived at the preceding compensatory hours based upon a 46-week school year (Tr. 85).

ANALYSIS

The Parents raised multiple challenges to the committee on special education (“CSE”) program and placement recommendations. The DOE made no effort to show that it offered the Student a FAPE for the 2021-2022 school year. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017). The DOE offered no explanation nor defended the adequacy of the CSE’s program and placement recommendations.

There is no dispute about the Student’s entitlement to a bank of 88.5 compensatory hours of SEIT services, individually; 37 hours of compensatory counseling; 46 hours of compensatory Parent Training; 40 hours of compensatory OT services; and 13 hours of compensatory Speech-Language Therapy. Nor is there any dispute regarding the Parents’ ability to find the service providers who would accept an enhanced market rate for SEITS and the related services. But for the Parents having been able to make arrangements for the enhanced rate SEITS and related services, the Student would not have received any SEITS services or therapy during the 2021-2022 school years. The DOE must therefore fund the services at an enhanced market rate not to exceed $180.

Under applicable law, case law and regulations aforementioned, the burden is on the DOE to establish that it provided the Student with a FAPE and that it has effectively and materially implemented the provisions of an agreed upon IEP. As stated supra, the DOE presented no documentary evidence at the hearing, nor did it present any witness testimony. The Parent submitted substantial evidence in support of her claim of entitlement to a bank of compensatory hours for services missed together with funding for independent evaluations (P. Exs. A, D, L, M, N, R, R, and U). The Parents presented the testimony of the Student’s SEIT’s teacher and progress report attesting to the Student’s progress (P. Exs, P, R); the Parents also submitted substantial documentary evidence in support of their position that the Student needs 1:1 instruction (P. Exs. M, P, R, and U). The testimony of the Parents’ witnesses (which was uncontroverted) and the Parents’ documentary evidence established her entitlement to a bank of compensatory to permit the Student to benefit from instruction. In light of the aforementioned, it is evident that the DOE failed to provide the Student with a FAPE for 2021-2022 school year.

Independent Evaluation

As per New York State Commissioner’s Regulations section 300.502(b)(1), (2) the parent has the right to obtain an independent educational evaluation at public expense. If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See, NYCRR 200.5(g)(1)(iv).

Here the District failed to conduct the evaluations to ensure that the program recommended meets the Student’s educational needs, nor did the District contest the Parents’ assertion that parent will secure the services of licensed professionals to conduct the requested evaluation. The District is legally bound to take all necessary steps to ensure that the requested evaluations are performed to ensure that an appropriate IEP/IESP is generated for the Student. Therefore, the Parent’s unopposed request to have an independent evaluation performed to ensure that the Student continues to make educational gains is granted.

ASSISTIVE DEVICE UNDER SECTION 504

The Parent requests that the District provides the Student with an assistive technology device to allow the Student to read and communicate effectively (P-Ex. N). The Parent did not specify the functionality required with the device (P-Ex. N). Notwithstanding, the Parent made a valid claim under Section 504 requesting that the District be directed to provide the Student with an assistive device.

Section 504 provides that “[n]o otherwise qualified individual with a disability... shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

The law requires that a student’s participation in their learning experience be in the Least Restrictive Environment (LRE).  The use of AT provides support for a child with a disability, allowing the student to benefit from instructional materials and to communicate effectively.  Assistive Technology is included in the definition of “supplementary aids and services” and accommodation as defined in both IDEA and 504. See 34 C.F.R. §104.44. Therefore, the Parent’s unopposed request to direct the District to provide the Student with a device is hereby granted.

ORDER

IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED:

ORDERED that the DOE is directed to provide the Student with the following services as compensatory education for the failure to provide the Student with a FAPE for the 2021-2022 school year at prevailing market rate not to exceed $180 per hour, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations:

  • • 88.5 hours of 1:1 Special Instruction, based on a 46-week school year, reduced only by any number of hours proven to have been received;
  • • 46 hours of compensatory Occupational Therapy, based on 46-week school year, reduced only by any number of hours proven to have been received;
  • • 37 hours of compensatory counseling services, based on a 46-week school year, reduced only by any number of hours proven to have been received;
  • • 13 hours of compensatory Speech Language Therapy, based on a 40-week school year, reduced only by any number of hours proven to have been received;
  • • 46 hours of compensatory Multisensory Reading Instruction, based on a 46-week school year; it is further ORDERED that that the New York City Department of Education is directed to fund Multisensory Reading Instruction provided by a reading specialist of the parent’s choosing for pre-literacy, literacy, and writing skills pursuant to the findings of a basal assessment, it is further ORDERED that the New York City Department of Education is directed to fund an independent neuropsychological re-evaluation to be conducted by New York state licensed neuropsychologist of the Parents’ choosing, at market rate not to exceed $5000.00, it is further ORDERED that the New York City Department of Education is directed to fund a reading assessment by a reading specialist at market rates, it is further ORDERED that the New York City Department of Education is directed to convene a CSE meeting within 30 days from receipt of the neuropsychological evaluation report together with all other assessment test findings to generate a special education program for the Student based on the recommendations listed, it is further ORDERED that the New York City Department of Education is directed to provide the Student with an assistive technology device with warranty that is equipped with the following features: a) An iPad (7th or 8th generation) with 32 GB with built-in text-to-speech accessibility function; b) TSQ iPad case with screen protector; c) Epic! And Raz-Kidz iPad applications; d) Bose-QuietComfort 35 Wireless Headphones II; e) Clicker Writer Software; f) Popplet application; and g) 25 hours of Assistive Technology training for the Student, inclusive of parent and school staff training, it is further ORDERED that, notwithstanding the above, the DOE remains obligated to locate and provide the Parent with a compensatory related services provider within fifteen business days upon receipt of parent’s request seeking the DOE’s assistance in locating service providers.

Dated: November 27, 2022

_______________________________

Marcel P. Denis, 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 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.

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits Date Title Number of Pages

  • • multiple dates Compliance date extensions 3
  • • DOE Exhibits

N/A

  • • Parent Exhibits Date Title Number of Pages A 09/09/2021 Impartial Hearing Request 19 B 11/23/2020 Order On Pendency in Case # 199698 06 C 03/07/2019 Turning 5 Individualized Education 14 Services Program D Undated Pendency Form 2 E 09/08/2021 FOFD in Case #199698 21 F 02/18/2022 Amended Impartial Hearing Request 19 G 09/21/2021 Oder of Consolidation 3 H 03/09/2022 Order on Pendency 8 I 01/04/2022 Prior Written Notice January 2022 11 J 05/14/2021 REDACTED Speech Services 23 Occupational Therapy Evaluation K 05/20/2021 REDACTED Speech Services 9 Assistive Technology Evaluation L 06/16/2021 REDACTED Speech Services 17 Speech and Language Evaluation M 04/16/2021 Neuropsychological Evaluation 22 by REDACTED, Ph.D., ABPP-CN N 06/24/2022 Auditory Processing Evaluation 10 O 2019-2022 Service Records 9 P 06/29/2022 REDACTED SEIT Report 4 Q 07/14/2022 REDACTED SETSS Service 1 Hours 2021-2022 R 09/09/2022 Affidavit of REDACTED 7 S Undated REDACTED Witness Subpoena 1 T Undated REDACTED Witness Subpoena 1 U 10/08/2022 Affidavit of REDACTED 6

Footnotes

[1] . The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.