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FINDINGS OF FACT AND DECISION
Case Number: 216329
Student’s Name: [REDACTED]
(hereinafter referred to as “Student”)
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: [REDACTED]
(hereinafter referred to as “the Parents”)
Record Close Date: November 16, 2022
Decision Date: November 29, 2022
Hearing Officer: Lisa S. Rusk, Esq.
__________________________________________________________
NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 15, 2022
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 5, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 20, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 8, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 29, 2022
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 15, 2022
For the Student:
[REDACTED], Attorney
[REDACTED], Pediatric Neuropsychologist
[REDACTED], Special Education Itinerant Teacher
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 29, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
INTRODUCTION AND PROCEDURAL HISTORY
A due process complaint (DPC) dated September 9, 2021 was filed by the Parents on September 10, 2021, alleging a failure to provide the Student with a Free Appropriate Public Education (FAPE) for the 2019-20, 2020-21 and 2021-22 school years and violations of Section 504 of the Rehabilitation Act of 1973. An amended DPC was filed by the Parents on September 24, 2021. At a resolution session, the District agreed to fund an independent neuropsychological evaluation and conduct an assistive technology evaluation (T:14-15, 132-33). There is no record of a response to the DPC or amended DPC by the District. The undersigned impartial hearing officer (IHO) was assigned on February 2, 2022. A prehearing conference was held on February 15, 2022. A pendency hearing was also held on February 15, 2022, and an Order on Pendency was issued on February 17, 2022. At the pendency hearing Parent Exhibits A-D were entered into evidence. No District exhibits were entered into evidence.
Status conferences were held on March 22, 2022, April 27, 2022 and June 6, 2022. On June 6, 2022, the District stated that it would not be presenting a “Prong I” case but would be presenting a witness on compensatory education and additional evaluations on rebuttal (T:71). On June 7, 2022, the Parents filed a motion to compel records and endorse a subpoena duces tecum for District records via memorandum of law and annexed exhibits A-C. On June 13, 2022, the District filed a motion to quash the subpoena. Argument was heard on the record on June 14, 2022. On June 14, 2022, District Exhibits 1- 34 were entered into evidence. This IHO issued an Interim Order on Motions on June 14, 2022 with annexed executed subpoena duces tecum. The neuropsychological evaluator contracted COVID, and her evaluation of the Student and issuance of a final report were significantly delayed (T:69-70, 86, 153, 175-76).
The hearing continued on July 5, 2022, July 20, 2022, August 8, 2022, August 29, 2022, September 15, 2022 and September 29, 2022. On July 5, 2022, Parent Exhibits E-S were entered into evidence. On August 29, 2022, Parent Exhibits V-Z and BB-EE were entered into evidence. On September 15, 2022, Parents Exhibits AA, FF, GG and HH were entered into evidence. The long awaited interim neuropsychological report was finally received in September of 2022 (Ex. P-GG). On September 22, 2022, this IHO executed a subpoena duces tecum on behalf of the District for records from [REDACTED]. On September 29, 2022, Parent Exhibits II and JJ were entered into evidence, and excerpted versions of Exhibits T and U were entered over the objection of the District.
Extensions of the timelines were requested by the parties and granted on February 15, 2022, April 27, 2022, June 14, 2022, August 8, 2022, September 29, 2022, October 27, 2022 and November 10, 2022. The Parent testified along with the special education itinerant teacher (SEIT) and neuropsychologist or “evaluator”. The District presented no direct or rebuttal witnesses (T:456). Closing briefs were submitted by both parties on November 16, 2022.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. This IHO also asserted jurisdiction over the Parents’ claims under Section 504 of the Rehabilitation Act of 1973 and its implementing regulations (T:11).
ISSUES
The Parents raised numerous procedural and substantive objections regarding the school years in question and claim systemic violations under Section 504. The relief requested by the Parents in the DPC, generally stated, is:
- • A FAPE violation for 2019-20, 2020-21 and 2021-22.
- • Funding of certain independent educational evaluations (IEEs) on an interim basis or as final relief.[1]
- • Compensatory education for the denial of FAPE and any deprivation of pendency, including 1:1 SEIT, executive functioning support, tutoring, behavior therapy, AT, AT training, services to address anxiety, vision services related services such as OT, SLT, PT, counseling, social skills training and any other services recommended as a result of the IEEs.
- • An increase in 1:1 instruction and related services, as well as home-based services and a full-day 1:1 program, if required.
- • Services at “enhanced market rates”.
- • Reimbursement for out-of-pocket expenses relating to the Student’s special education needs, including transportation, tuition, evaluations and any services that they purchase during the school years at issues and the pendency of the hearing.
The District conceded a denial of a free appropriate public education (FAPE) for the school years in question[2], but argues that the Student is not entitled to compensatory education for services missed. The District presented no facts regarding its view regarding an appropriate compensatory remedy other than to state that the Student is not entitled to any relief. The District also objects to the granting of any additional IEEs. In addition, the District argues that the IHO should deny any increase in services.
FINDINGS OF FACT
The Student is a [REDACTED] year old girl classified with a speech or language impairment[3] (Ex. D-24-1). The Student received early intervention services of SLT, OT, PT and 1:1 special instruction two times per week. The Student was evaluated by the Committee on Preschool Education (CPSE) in 2019 at age [REDACTED] as she was aging into the CPSE’s programs (Ex. P-EE-2, P-F). The Parent expressed her concerns to the CPSE in the social history including her difficulty socializing, tantrums, speech delays, very low muscle tone, toe walking, difficulty focusing and changing activities and her dislike of noisy places, particular textures, getting wet and grooming (Ex. P-EE-2-3 and P-F-4).
On initial cognitive testing using the Wechsler Preschool and Primary Scales of Intelligence Fourth Edition (WPPSI-IV), the Student presented with a full scale IQ of 82. Her verbal comprehension score was 80, visual spatial score was 82, and working memory score was 84, all in the low average range (Ex. P-F-1). She displayed difficulty attending to task and sensory delays which impacted her academic and social development and daily performance (Ex. P-F-1). Her social emotional development was noted as moderately low on the Vineland Adaptive Behavior Scales (Ex. P-F-2). Her daily living skills were moderately low to adequate (Ex. P-F-3).
Her overall fine motor score was in the 1st percentile, and she ranked in the 5th percentile on the Peabody Developmental Motor Scales-2nd Edition (Ex. P-F-2-3,28-29,31). Her language and oral motor skills were also evaluated, and she had trouble following 2 step directions, identifying pictures and had difficulty understanding certain instructions, expanded sentences, simple inferences with visual cues, spatial concepts and possessive pronouns. She scored in the 10th percentile in auditory comprehension and the 12th percentile in expressive communication for a total language score in the 9th percentile (Ex. P-F-3, 19).
The CPSE met on May 13, 2019 and developed an Individualized Education Program (IEP) (Ex. D). The CPSE recommended 7.5 hours of direct special education itinerant teacher services (SEIT) in a group 2:1 and SLT, OT and PT each two times per week (Ex. D-14-17). In September of 2019, the Parent enrolled the Student in a preschool program at [REDACTED]. The class had twelve students of mixed age and three teachers. The preschool shut down as of March 2020, and initially the District did not provide any services. She eventually received PT via Zoom, some OT and no remote SEIT or SLT (Ex. P-EE-4).
The CPSE convened for the Student’s annual review on June 18, 2020. Her special education provider recommended an increase in SEIT hours, the addition of counseling services and a 12-month program (Ex. P-I). The Parent participated via phone even though she had given birth the day before (Ex. P-EE-4). The CPSE recommended 12-month programming including 8 hours per week of direct SEIT in a group 2:1, 1 hour per week of indirect SEIT and SLT, OT, PT and counseling 2 times per week (Ex. D-16-20 and J-1). The Student only received SEIT and remote counseling over the summer (Ex. P-EE-5). In September of 2020, the Parents enrolled the Student in preschool at [REDACTED] in a class of 12 students and 2 teachers at a cost of $800 per month. There continued to be delays in providing services to the Student. She did not receive any counseling in 2020-21 and did not receive all of her remaining services (Ex. P-EE-5).
In February of 2021, the Parent signed a consent for reevaluation, however, the District did not conduct any testing (Exs. P-EE-5-6, P-N and P-O). A CSE meeting was held on April 8, 2021. The Parent testified that only she and a District representative participated via telephone, but the IEP reflects additional participants via phone (Ex. D-24-12, Ex. P-EE-6). An IESP was developed recommending direct special education teacher support services (SETSS) 8 periods per week in a group, SLT, OT and counseling 2 times per week and physical therapy one time per week, each for 30 minutes (Ex. D-24-8-9). On April 14, 2021, the Parents signed a contract and paid a deposit for the Student to attend school at [REDACTED], but the Parent testified that they did not determine that she would be attending there until August of 2021 (Ex. P-EE-7). The Parent testified that the Student could not have handled a large class during 2021-22 and required 1:1 push-in support. She once again attended [REDACTED], and the cost was $900 per month (Ex. P-EE-8).
During 2021-22, the Student received much of her SEIT, OT and SLT, but did not receive any PT or counseling all year. In December of 2021, the District conducted an AT evaluation and determined that the Student did not require AT (Ex. P-EE-8; Ex. D-33). This past summer she attended camp and received her SEIT and SLT but did not receive PT or counseling (Ex. P-EE-8-9).
The Parent testified that the Student made progress over the last year, but still has a long way to go. She made the most progress in the area of social skills. She learned to read last year but is still behind relative to her peers. She also believes despite understanding 1:1 correspondence that she is behind her peers in math. She has made some progress in writing, but her words are not fully clear. She made progress with toileting and eating new foods. The Parent is seeking at a minimum, makeup services for SEIT, OT, SLT, PT and counseling that was missed and the full ten hours per week of SEIT she requested, to be utilized after school, on weekends, during school breaks or during school, if need be (Ex. P-9-11).
In January of 2022, the Student’s SEIT issued a report regarding her current functioning levels (Ex. P-FF). The neuropsychologist or evaluator evaluated her in April, May and June of 2022 and issued a report (Ex. P-GG). Her full-scale IQ score of 93 is average, but not a reliable indicator due to significant discrepancies between indices. The evaluator highlighted that due to her distractibility and fatigue, the evaluation results may reflect an underestimate of her true cognitive abilities and should be interpreted with caution (Ex. P-GG-9). Her verbal comprehension was low average. Her visual spatial relations score was high average. Her fluid reasoning, working memory and processing speed were all average (Ex. P-GG-17-18).
Her expressive language skills were relatively preserved, whereas her receptive language skills were highly variable (Ex. P-GG-9). Again, discrepancies were attributed to her substantial difficulties with attention and focus, as well as gaps in mandated services (Ex. P-GG-9-10). Her attentional challenges and significant motor restlessness and executive functioning weaknesses are consistent with a diagnosis of Attention-Deficit/Hyperactivity Disorder – Combined Presentation (Ex. P-GG-10).
With regard to her academic achievement, her school readiness composite score was average. However, her word reading was low average, written expression was very low to low average and math was very low to low average. The evaluator deferred a diagnosis of a specific learning disability based upon the severity of her ADHD symptoms. The evaluator also found that the Student presented with significant anxiety associated with her learning challenges, functional communication weaknesses in addition to her ADHD symptoms (Ex. P-GG-10).
The evaluator recommended the following school services for the Student: 15 hours per week of 1:1 special education instruction, individual and small group SLT, continued OT and PT and counseling, along with several classroom accommodations (see Ex. P-GG-11-14). She also made additional recommendations for the home environment. The evaluator testified that she was not comfortable making a recommendation of what the services should have been during the years in question. However, she did state that based upon her current needs as reflected in her report, it would be appropriate to allow the Student to use the hours of services that were recommended/mandated for the past three years but not received (as counted by the Student’s attorney)(Ex. P-HH-4).
The Student’s SEIT during the 2021-22 school year testified that although she made progress, her math, phonemic awareness, reading and social skills were significantly delayed (Ex. P-AA-3). She provided seven hours per week during the school year and nine hours per week for 6 week during the Summer of 2022 (Ex. P-AA-5).[4] She testified that the Student could benefit from remediation in reading, writing, math and listening comprehension and benefited from exposure to non-disabled peers (Ex. P-AA-7, see also Ex. P-FF).
DECISION
The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a 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 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. RE-1, 137 S.Ct. 988 (2017). The burden of proof is on the school district to demonstrate that it has offered the student a FAPE.
The Student has significant deficits and, there is no dispute that she was not offered a FAPE for the 2019-20, 2020-21 and 2021-22 school years. The questions for this IHO is what, if anything, shall the remedy be.
INDEPENDENT EVALUATIONS
Pursuant to Section 200.5(g)(1)(iv) of the Commissioner’s Regulations:
“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.” A parent is entitled to one IEE at public expense each time the school district conducts a comprehensive evaluation with which the parent disagrees (34 CFR 300.502[b][5]).
The SRO has held that a parent may request a district funded IEE in a due process complaint notice in the first instance (see Application of a Student with a Disability, Appeal No. 19-094). Only an independent neuropsychological was provided. After the parent requested an IEE in the due process complaint notice, it was incumbent on the District to grant the evaluation or to present an argument in defense of its evaluation of the student.
The DPC raised objections to procedures utilized for the District’s evaluation of the Student. It also raised objections to the adequacy of the District’s evaluation of the Student in that it failed to assess the Student in all areas of her disability (Ex. P-B-6). The Parents requested several IEEs in the DPC (Ex. P-B-11-12). The District argued in its closing MOL that the hearing record did not support the IEEs and such claims should be deemed abandoned. However, it is the District that has abandoned its burden.
A District must ensure that a student is evaluated in all areas related to her disability and that such evaluation is sufficiently comprehensive to identify all of the student’s special education and related service’s needs (34 CFR 300.304[c][4] and [6]; 8 NYCRR 200.4[b][6][ix] and[x]). The District did not introduce any evaluations conducted in preparation for her transition to kindergarten. The District did not offer any evidence at the hearing in defense of its evaluations of the student, aside from entering an assistive technology evaluation into the record (Ex. D-33). The only assessment listed on the District’s 2019 consent form was a social history update “to determine the appropriate special education service your child may need in a school-age setting.” (Ex. P-N-1). The District did not explain how an updated social history would serve that purpose.
In its closing memorandum of law (MOL), the Parents requested the following IEEs: occupational therapy, speech language therapy, physical therapy, auditory processing and assistive technology evaluation. I must note that the Parents did not request a physical therapy evaluation in the DPC or Amended DPC (Ex. P-A-11, P-B-11-12). In addition, the Parents did not raise any objections to the recently conducted assistive technology evaluation other than the basis of the denial of assistive technology was not explained to the Parents (Ex. EE-8). The report states that the results of the evaluation were discussed with staff and family, and all were in agreement (Ex. D-33-5).
To ensure that the CSE has sufficient current information in all areas of suspected disability in order to develop appropriate recommendations for the Student, I find that the Parents are entitled to independent occupational therapy (OT), speech language therapy (SLT), and auditory processing evaluations at District expense. The District shall also conduct a physical therapy evaluation of the Student.
COMPENSATORY EDUCATION
Compensatory Pendency Services The initial DPC was filed on September 10, 2022 and amended on September 24, 2022. Following this IHO’s appointment a pendency hearing was held and a pendency order was issued on February 17, 2022 ordering the following services retroactive to the filing of the DPC on September 10, 2022:
SEIT services – Direct 8 hours per week in a group 2:1;
SEIT services – Indirect 1 hour per week;
Speech/Language Therapy – 2 times per week for 30 minutes 2:1; Occupational Therapy – 2 times per week for 30 minutes 2:1;
Physical Therapy – 2 times per week for 30 minutes 1:1; Counseling – 2 times per week for 30 minutes 2:1.
The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation or placement of the student (20 U.S.C. § 1415[j]; Educ. Law §§ 4404[4], 4410[7][c]; 34 CFR 300.518[a]; 8 NYCRR 200.5[m]; see, Student X v. New York City Dept of Educ., 2008 WL 4890440, at *20 [E.D.N.Y. Oct. 30, 2008]; Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 [S.D.N.Y. Jan. 18, 2005]; Application of a Student with a Disability, Appeal No. 14-024; Application of the Dept of Educ., Appeal No. 08-061). Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904, 906 [2d Cir. 1982]; see, Wagner v. Bd. of Educ., 335 F.3d 297, 301 [4th Cir. 2003]; Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 [3d Cir. 1996]).
The Second Circuit has held that where a district fails to implement a student’s pendency placement, a student should receive the pendency services to which they were entitled as a compensatory remedy (Doe v. E. Lyme Bd. Of Educ., 790 F.3d 440, 456 [2nd Cir. 2015]). The Parents allege that the Student was not provided the following services from September 2021 through the Summer of 2022 while this hearing was pending[5]:
SEIT services – 46 hours[6]
Indirect SEIT services – 46 hours
Speech/Language Therapy – 15 hours
Occupational Therapy – 40.5 hours
Physical Therapy – 52 hours
Counseling – 52 hours The District has not provided any calculation for the record of provided and/or missed services during the period of July 1, 2021 through the end of August 2022. The Student is entitled to compensatory pendency services as a matter of law as requested by the Parents as modified.
Compensatory Services With regard to missed services during the 2019-20 and 2020-21 school years, compensatory 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]; (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to “make up for” a denial of a FAPE and place the student in the position he or she would have been had the IDEA not been violated (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 & n.12 [2d Cir. 2014]; P. v. Newington Board of Educ., 546 F.3d 111,123 [2nd Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]). Accordingly, an award of compensatory education 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).
The Parents argue they are entitled to compensatory education to make up for the denial of a FAPE during the 2019-20, 2020-21 and 2021-22 school years. Where attendance records specify the reason for absence, I have declined to include hours that were missed due to school closure or student absence as part of a compensatory award. There was no evidence in the record regarding the Student’s availability for makeup services during the 2019-20 and 2020-21 school years. The Parents request the following based upon missed services during the 2019-20 and 2020-21 school years adjusted for school closures and student absences and a mathematical miscalculation to the extent noted:
Direct SEIT services – 379 hours[7]
Indirect SEIT services – 46 hours
Speech/Language Therapy – 57 hours[8]
Occupational Therapy – 31 hours[9]
Physical Therapy – 44 hours[10]
Counseling – 40 hours[11] The District stated on the record that it was not defending its IEPs and did not present any witnesses regarding the IEPs or an award of compensatory education (T:71, 76, 149). It argues, however, that the Student is not entitled to compensatory relief and/or that an award of compensatory relief on a quantitative basis could be excessive (citing to Application of a Student with a Disability, SRO 21-213, finding the parent’s request for over 9,000 compensatory hours to be excessive).
In discussing the formulation of compensatory relief federal courts have held that:
“In enacting the IDEA, Congress did not intend to create a right without a remedy" Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App'x 411, 415 (2d Cir. 2010) (internal citation removed). "The IDEA allows an IHO or SRO to fashion an appropriate remedy for students not provided a FAPE, and the Second Circuit has held that compensatory education is an available remedy under the IDEA to make up for denial of a FAPE." M.M. v. New York City Dep't of Educ., No. 15-CV-05846, 2017 U.S. Dist. LEXIS 47812, 2017 WL 1194685 (S.D.N.Y. Mar. 30, 2017). Such compensatory education "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." Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015) (quoting Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 524, 365 U.S. App. D.C. 234 (D.C. Cir. 2005)). In some situations, where the record reflects that "the alleged deficiencies suffered by the student have already been mitigated (or even totally alleviated)," an award of compensatory education may not be required. See Doe by & through Doe v. E. Lyme Bd. of Educ., No. 11-CV-00291, 2020 U.S. Dist. LEXIS 226464, 2020 WL 7078727 (D. Conn. Dec. 3, 2020)(M.T. and A.T. on behalf of R.T. v. Arlington C.S.D., 22-CV-00437(S.D.N.Y. November 9, 2022).
The evaluator opines that the Student continues to require all of the services recommended in her last IEP to address continuing special education and related service needs (Ex. P-GG-12-13). There is no credible evidence in the record that the alleged deficiencies suffered by the Student have been otherwise mitigated or alleviated. The Parents request that the compensatory services be pooled in a bank of hours to be used flexibly as SEIT, tutoring, OT, SLT, PT and counseling. I decline to take this approach, and the Student shall be entitled to the following to be utilized over the next three years in order to place her in the position she would have been but for the denial of FAPE during the three years at issue:
Direct SEIT services – 425 hours
Indirect SEIT services – 92 hours
Speech/Language Therapy – 72 hours
Occupational Therapy – 71.5 hours
Physical Therapy – 96 hours
Counseling – 92 hours
Given the fact that the District provided 0 PT and counseling services since the filing of the DPC, the Parents shall be entitled to funding of those services by the District at prevailing market rates if the District is unable to locate a licensed provider within 15 days of the date of this decision. The District is otherwise to provide the compensatory services to the Student directly or make other arrangements.
PROSPECTIVE RELIEF
Relief in the form of an increase in 1:1 instruction and related services and/or home based services and/or a full-day 1:1 program is not warranted by the record and is not referenced in the Parents’ MOL. The prospective placement of a student in a particular type of program and placement, such as the order sought by the Parents in the amended DPC, has the effect, in most circumstances of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dept. of Educ., 2008 WL 4890440, at 16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). Application of a Student with a Disability, SRO Appeal No. 21-207.
I do not have jurisdiction over the 2022-23 school year IEP (T:355-57). Additional evaluations have been ordered and it is not clear as to whether the District’s CSE has yet convened to review the IEE and AT evaluation. The CSE shall be responsible to reconvene, review the IEEs and update the IEP for the Student for the 2022-23 school year, as necessary.
TUITION REIMBURSEMENT
The Parents request tuition reimbursement of the payment made to the private school for the 2021-22 school year under three alternate theories: (1) equitable relief under Section 504, (2) partial compensatory education for the violations of FAPE and the least restrictive environment and (3) as part of a Prong II case under Burlington/Carter.
Looking first under a traditional Burlington/Carter analysis, it is undisputed that by its own admission the District has not met its burden under Prong I. In New York State, 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 or payment for services 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)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]). In addition, in order to receive tuition reimbursement, the equities must weigh in favor of the parent.
Since the District in this case has failed to demonstrate it offered the Student a FAPE under the First Prong of the Burlington/Carter test[12], the burden shifts to the Parents to prove that the services provided by the private school are appropriate to meet the Student’s special education needs and that the equities weigh in the Parents’ favor.
In order to meet their burden, the Parents must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).
The Parents did not present testimony from a teacher or administrator from the private school. The Parents also did not present a program description from the private school or the Student’s progress reports from the private school. No one from the private school provided evidence regarding the school’s appropriateness to meet the Student’s special education needs. The Parents have failed to meet their burden under Burlington/Carter. As such, it is not necessary to consider Prong III of the analysis.
Turning to the Parents’ alternative arguments, a parent may assert a claim under Section 504 of the Rehabilitation Act of 1973 in conjunction with an IDEA claim on the theory that a student has been "denied access to a free appropriate education, as compared to the free appropriate education non-disabled students receive" C.L.v. Scarsdale U.F.S.D., 913 F. Supp. 2d 26, 36 (S.D.N.Y. 2012). To recover under Section 504, a parent must prove: (1) that the student is disabled; (2) that the student is "otherwise qualified" to participate in school activities; (3) the school or the board receives federal financial assistance; and (4) the student was excluded from participation in, denied the benefits of, or subject to discrimination at, the school. Gabel ex rel. L.G. v. Bd. of Educ. of Hyde Park Cent. Sch. Dist., 368 F. Supp. 2d 313, 334 (S.D.N.Y. 2005). There does not appear to be any dispute regarding the first three factors.
A showing of discrimination under Section 504 "requires something more than proof of a mere violation of IDEA." J.D. v. Pawlet School Dist., 224 F.3d 60, 70 (2d Cir. 2000). Rather, there "must be evidence that a school district acted with deliberate or reckless indifference to the student's federally protected rights or with "bad faith or gross misjudgment." Schreiber v. E. Ramapo C.S.D., 700 F.Supp2d 529, 564 [S.D.N.Y. 2010].
In their MOL, the Parents claim that Section 504 has been violated by the District’s failure to offer the Student a small general education class in a small school “like the classes offered outside of [REDACTED] in smaller districts” and that the District does not offer a full continuum of services which includes smaller regular education classes with push-in support.[13] First, there is no evidence in the record of the “small general education” classes in other public school districts and such is irrelevant regardless, but more importantly there is no evidence in the record that the Student has been denied access to “small general education” classes in the District because of her disability. In any event, the Parents claim that the Student could not be educated in a larger classroom, albeit supported by their witnesses, is speculative. The Student attended kindergarten in 2021-22 in a private school. There is no evidence of her attending school in a District regular education class. See P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir.1990) (affirming summary judgment when plaintiff alleged that student was "denied meaningful access to the benefits provided to other handicapped individuals" and not, as § 504 requires, that the school district failed to provide "even-handed treatment in relation to the non-handicapped" (internal quotation marks omitted)); see also Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 484 (S.D.N.Y. 2007)(granting defendant's summary judgment motion when plaintiffs failed to put forth any evidence that their child "was denied a federal benefit because of his disability" (emphasis in original)).
Second, I do not conclude on this record that the District acted with deliberate or reckless indifference or with gross negligence in failing to provide the Student with a FAPE. (see Schreiber v. E. Ramapo C.S.D. 700 F.Supp2d 529 [S.D.N.Y. 2010] finding that although the District ultimately failed to provide a FAPE for the student for the 2004-05, 2005-06 and 2006-07 school years, the process employed by the District did not rise to the level of gross negligence or reckless indifference required to prove a § 504 claim and Zahran ex rel. Zahran v. New York Dep't of Educ., 306 F. Supp. 2d 204, 213-14 [N.D.N.Y. 2004] finding that plaintiffs' claims did not show that the district acted with gross negligence when plaintiffs alleged that the district failed to make necessary evaluations to develop a proper IEP and failed to offer prompt administrative review).
Finally, the Parents' Section 504 claims should be denied as a matter of law. Pinn ex rel. Steven P. v. Harrison Cent. Sch. Dist., 473 F. Supp. 2d 477, 484 (S.D.N.Y. 2007) (holding that summary judgment in favor of the district was appropriate where the parents' "Section 504 claims are, in actuality, merely restatements of their IDEA claims that Defendant failed to appropriately classify [their child]"); Zahran ex rel. Zahran v. New York Dep't of Educ., 306 F. Supp. 2d 204, 213 (N.D.N.Y. 2004) (dismissing the parents' Section 504 claim after finding that they were "essentially challenges to the program itself, not of any type of discriminatory decisions" and therefore, were substantially the same as their IDEA claim). J.R. and D.M.R. v. Bd. Of Educ. For the Iroquois C.S.D., 18-CV-859 (N.D.N.Y. Nov. 24, 2020). The amended DPC refers to systemic predetermination and “informal and unwritten policies” regarding the CSE and CPSE process, but this record does not establish such allegations. I find that the record does not support a finding that the District discriminated against the Student based upon her disability and that the Parents’ claims have been properly addressed under the IDEA.
Based upon the foregoing, the Parents request for tuition reimbursement is denied.
ORDER
IT IS HEREBY ORDERED that [REDACTED] is directed to provide the following compensatory services: four hundred twenty-five (425) hours of direct special education teacher instruction in a group not to exceed 2; and it is further
ORDERED that [REDACTED] is directed to provide the following compensatory services: ninety-two (92) hours of indirect special education teacher instruction; and it is further
ORDERED that [REDACTED] is directed to provide the following compensatory services: seventy-two (72) hours of speech language therapy; and it is further
ORDERED that the [REDACTED] is directed to provide the following compensatory services: seventy-one and 1/2 (71.5) hours of occupational therapy; and it is further
ORDERED that [REDACTED] is directed to provide the following compensatory services: ninety-six (96) hours of physical therapy at prevailing market rates if the District is unable to locate a licensed provider within 15 days of the date of this decision; and it is further
ORDERED that [REDACTED] is directed to provide the following compensatory services: ninety-two (92) hours of counseling at prevailing market rates if the District is unable to locate a licensed provider within 15 days of the date of this decision; and it is further
ORDERED that the compensatory services shall expire three years from the date of this decision if the Student has not used them by such date; and it is further
ORDERED that [REDACTED] shall fund an independent occupational therapy, speech language therapy and auditory processing evaluation.
ORDERED that [REDACTED] shall conduct a physical therapy evaluation of the Student within 30 school days of the date of this decision.
Dated: November 29, 2022
_____________________
Lisa S. Rusk, Esq.
Impartial Hearing Officer
_______________________________________________________________________
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.
DOCUMENTATION ENTERED INTO THE RECORD
DISTRICT
Exhibit
Document
Date
Pages
1
Amended Due Process Complaint
September 24, 2021
14
2
Partial Resolution Agreement
December 17, 2021
2
3
Consent for Initial Evaluation
March 26, 2019
1
4
Social Evaluation Report
March 28, 2019
3
5
Psych Evaluation Report
March 29, 2019
6
6
Educational Evaluation Report
April 1, 2019
4
7
OT Evaluation Report
April 15, 2019
8
8
OT and PT Prescription
April 15, 2019
1
9
Speech Evaluation Report
May 1, 2019
5
10
Speech Authorization
May 1, 2019
1
11
PT Evaluation Report
May 1, 2019
3
12
Meeting Notice
May 3, 2019
1
13
Preschool Student Evaluation Summary Report
Undated
3
14
Individualized Education Program
May 13, 2019
21
15
Final Notice of Recommendation
June 7, 2019
1
16
Individualized Education Program
June 18, 2020
24
17
Final Notice of Recommendation
June 18, 2020
1
18
Authorization of Change of IEP
June 19, 2020
1
19
Prior Written Notice
February 11, 2021
9
20
Preschool Teacher Interview
March 18, 2021
2
21
Physical Therapy Report
March 28, 2021
2
22
Preschool Teacher Interview
March 18, 2021
2
23
Speech Report
May 23, 2021
2
24
Individualized Education Services Program
April 8, 2021
12
25
Prior Written Notice
April 9, 2021
7
26
Individualized Education Program
June 10, 2021
23
27
Final Notice of Recommendation
June 10, 2021
1
28
Authorization of the IEP
June 10, 2021
1
29
Prior Written Notice
December 23, 2021
9
30
Consent for Additional Assessments
December 29, 2021
2
31
Student Progress Report (Speech)
April 2, 2020
3
32
Assistive Technology Evaluation Referral
January 10, 2022
6
33
Assistive Technology Evaluation
March 24, 2022
5
34
Assistive Technology Evaluation Attendance
March 24, 2022
1
PARENT
Exhibit
Description
Date
Pages
A Impartial Hearing Request 09/09/2021 12
B Amended Hearing Request 9/24/2021 13
C Individualized Education Program June 2021 06/10/2021 23
D Pendency “Agreement” Signed by [REDACTED] 12/15/2021 2
E Consent for Initial Evaluation 03/26/2019 1
F CPSE Evaluation Packet Various Dates in 2019 32
G Individualized Education Program May 2019 05/13/2019 21
H Medical Report 03/26/2019 3
I SEIT Progress Reports 03/29/2020, 04/02/2020, 06/01/2020 12
J Individualized Education Program June 2020 06/18/2020 24
K Final Notice of Recommendation 06/18/2020 1
L SEIT IEP Progress Report 11/30/2020 13
M DOE Request for Re-Evaluation 01/04/2021 1
N Prior Written Notice, Consent for Additional Assessments 02/11/2021 5
O Parent Email Communication with School Psychologist Regarding Consent for Additional Assessments 02/12/2021 1
P DOE CSE Meeting Notice 03/18/2021 3
Q Preschool Teacher Interview 03/18/2021 2
R DOE Student Progress Report 05/23/2021 2
S Events Log 07/19/2019- 11/04/2021 7
T Excepted New York State Next Generation English Language Arts Learning Standards up Through Grade 1 2017 34
U Excerpted New York State Next Generation Mathematics Learning Standards up Through Grade 1 2017 and updated 2019 37
V Related Service Attendance Records from January 2020 to June 2022 Various Dates 10
W 2019-2020 [REDACTED] Early Childhood Center Attendance and Service Records Various Dates in 2019 and 2020 19
X 2019-2020 [REDACTED] Early Childhood Center Progress Reports Various Dates in 2020 17
Y 2020-2021 Related Service Progress Reports Various Dates in 2021 7
Z 2019-2022 [REDACTED]Attendance Records Produced by the DOE Various Dates between 2019-2020 and 2022 233
AA Affidavit of [REDACTED] Undated 7
BB [REDACTED] Signed Registration Form 2021-2022 04/12/2021 9
CC [REDACTED] Invoices 2020- 2022 09/2020- 06/2022 20
DD Parent’s Payments to [REDACTED] via PayPal 09/2020-06/2022 3
EE Affidavit of [REDACTED] Undated 11
FF SEIT Report 1/28/22 3
GG Neuropsychological Evaluation Report by [REDACTED] 04/08/2022, 05/16/2022, 06/27/2022 22
HH Affidavit of [REDACTED] 2022 5
II Occupational Therapy Attendance Records 2020-2021 Various Dates 10/20 to 6/21 8
JJ SEIT Records 2021 and 2022 Various dates 12 Footnotes
[1] As referenced above, the District agreed to the neuropsychological. The Parents narrowed the request in their closing brief to an occupational therapy (OT), speech language therapy (SLT), physical therapy (PT), auditory processing and assistive technology (AT) evaluation. The Parents discussed submitting a motion for additional interim evaluations on June 6, June 14 and July 5, 2022, but never did (T:86,93,95-7, 103,132,149-50, 173-74).
[2] Based upon the District’s admission that it did not provide a FAPE for the school years in question, I do not find it necessary to address each procedural and substantive challenge to the specific IEPs/IESP in question.
[3] Her classification is not in dispute.
[4] The additional summer hours provided six makeup hours.
[5] The Parents ask that I make a negative inference based upon the District’s failure to provide all of the service records of the Student. The Parents alleged the District failed to provide them with educational records in the DPC (Ex. P-A-2) and a subpoena was issued during the hearing and ample time for the District to comply. Despite those facts, all service records were not provided, and I will infer that if the District did not provide evidence of the services provided to the Student, those services were not provided.
[6] The SEIT testified that she provided the Student with 7 hours of direct service per week from September 2021 through the week of August 8, 2022 and that the Student was entitled to 8 hours direct and 1 hour of indirect per week. This would equate to 46 hours of direct SEIT missed not 92 (Ex. P-AA-2).
[7] The Parents included indirect SEIT services and miscalculated the total amount of direct SEIT in their MOL at pg. 12. In addition, 29 sessions were missed due to school closing not lack of a provider 229 +179 =408 – 29 = 379 (Ex. P-W-18).
[8] missed sessions were due to school closures or student absences (50 +64=114 sessions or 57 hours) (Ex. P-W-6).
[9] missed sessions were due to school closures or student absences (17+45=62 sessions or 31 hours)(Ex. P-W-2-3)
[10] missed sessions were due to school closures or student absences (22+66=88 sessions or 44 hours)(Ex. P-W-4-5).
[11] The Parents’ MOL states 80 hours – but it is 80 sessions or 40 hours.
[12] The CSE developed an IESP for the 2021-22 school year. The Parent despite having worked as a SEIT stated that she did not understand the difference between an IEP and IESP (Ex. P-EE – 1, 6).
[13] I have taken judicial notice of the District’s published continuum of services [REDACTED] and decline to make any findings that the menu of services delineated by the District is not an adequate continuum under 8 NYCRR 200.6.