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CASE NUMBER: 560833 - NYC: 216787
FINDINGS OF FACT AND DECISION
Student's Name: Redacted (hereinafter referred to as "Student")
Date of Birth: Redacted
District:
Hearing Request by: Redacted (hereinafter referred to as "Parent")
Hearing Date: May 17, 2022, June 23, 2022, July 8, 2022, August 2, 2022, August 25, 2022, October 20, 2022, November 21, 2022, January 10, 2023
Actual Record Close Date: March 13, 2023
Hearing Officer: Marisa Carbone, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 17, 2022
For the Student:
Redacted, Esq., Attorney
Redacted, Parent Student
For the Department of Education:
Redacted, Esq., Attorney
Redacted, School Psychologist
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 23, 2022
For the Student:
Redacted, Esq., Attorney
Redacted, Parent Student
For the Department of Education:
Redacted, Esq., Attorney
Redacted, Math/SETSS Provider
Redacted, CPSE Administrator
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 8, 2022
For the Student:
Redacted, Esq., Attorney
Redacted, Parent Student
For the Department of Education:
Redacted Esq., Attorney
Redacted, CPSE Administrator
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 2, 2022
For the Student:
Redacted Esq., Attorney
Redacted, Parent Student
For the Department of Education:
Redacted, Esq., Attorney
Redacted CPSE Administrator
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 25, 2022
For the Student:
Redacted Esq., Attorney
Redacted, Parent Student
Redacted, Neuropsychologist
For the Department of Education:
Redacted, Esq., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 10, 2022
For the Student:
Redacted, Esq. Attorney
Parent appearance waived
Redacted, SEIT
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 21, 2022
For the Student:
Redacted, Esq., Attorney
Redacted, Parent Student
For the Department of Education:
Esq., Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED
JANUARY 10, 2023
For the Student:
Redacted, Esq., Attorney
Parent's appearance waived
Redacted, Speech Therapist
Redacted, Occupational Therapist
For the Department of Education:
Redacte Esq., Attorney
ISSUES
This matter comes before the undersigned Impartial Hearing Officer ("IHO")
through the Amended Parent's Due Process Complaint ("DPC") filed on or about December 31, 2021 (P-Ex. A). In the DPC, the Parent asserted that the District failed to provide a free appropriate public education ("FAPE") during the 2019/2020, 2020/2021, 2021/2022 school years for failure to provide an appropriate program and services for the Student (P-Ex. A) 1. The Parent requested relief in the form of, inter alia, 1-1 SEIT services, related services, and compensatory services. (P-Ex. A).
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed to the above matter on November 15, 2021. A prehearing conference was held on March 17, 2022, to discuss the issues in the case and Parent's request for independent educational evaluations. (See, Transcript). 2 An Interim order was issued for the independent educational evaluations, specifically a neuropsychological evaluation, speech-language evaluation and an occupational evaluation for the Student. A pendency agreement was executed on October 21, 2021under which the District agreed to fund 6 hours per week of 1-1 Special Education Itinerant Teacher Services ("SEIT"), 3x30, 1-1 occupational therapy, and 2x30, 1-[1] speech therapy. A hearing on the merits was held on May 17, 2022, June 23, 2022, July 8, 2022, August [2], 2022, August 25, 2022, October 10, 2022, November 21, 2022 and January 10, 2023. The District presented exhibits, which were admitted into evidence, and presented three witnesses. The Parent presented exhibits, which were admitted into the record[3] and presented five witnesses. The record closed on March 13, 2023. There were several extensions of the timelines.
FINDINGS OF FACT
The Student was a Redacted student who attended a Charter School for kindergarten and was classified as a student with a speech or language impairment and has been formally diagnosed with Attention Deficit Hyperactivity Disorder and a Language Disorder (P-Ex. K). The Student requires frequent redirection and demonstrates challenges with maintaining focus (P-Ex. K). He has difficulty attending for periods of time, exhibits odd or idiosyncratic behaviors, as well as withdrawal (P-Ex. K). He benefits from support and scaffolding in order to make progress and prevent regression (P-Ex. K). The Student also exhibits speech language deficits as evidenced by articulation skills that are significantly below age level as well as a severe fluency disorder that impacts his overall intelligibility and may also impact his thought process, word retrieval skills, social skills, confidence, and participation (P-Ex. GG). In addition, he exhibits fine and gross motor delays as evidence in the area of sensory processing and regulation, handwriting skills, motor coordination skills necessary for fine motor control and accuracy, manual dexterity skills, upper limb coordination, executive functioning skills, within the home and school environment and instrumental activities of daily living skills (P-Ex. FF).
On December 18, 2019, the District held an IEP meeting for the 2019/2020 school year and classified the Student as a preschool student with a disability and recommended he receive 6 hours per week of SEIT services 3:1, occupational therapy 2x30, 1-1, and speech therapy 3x30, 1-1 (D-Ex. 3). However, there is no record of services starting before February 2, 2020 (T. 513, P-Ex. HH). Initially, the Student received SEIT services with another student for 5 out of the 6 mandated hours and in March of 2020, all of the Student's instruction and services ceased for several weeks and then shifted to remote learning (T. 514). Although some SEIT services were offered remotely, the Student was unable to effectively engage with remote instruction (T. 516-17).
For the 2020/2021 school year, the District held an IEP meeting on December 22, 2020, and recommended that the Student receive services for 12 months including 6 hours per week of SEIT services 3:1, occupational therapy 2x30, 1-1, and speech therapy 3x30, 1-1. Once again, the District refused to offer the Student 1-1 SEIT services (T. 520).
On March 18, 2021, the District held an IEP meeting for the 2021/2022 school year in which the Student was entering kindergarten and recommended the Student receive services for a 10 month period to include an ICT class in a general education classroom, occupational therapy 1x30, push in, occupational therapy 1x30 pull out, speech therapy 1x30, 1-1, and speech therapy 1x30, 3-1 (D-Ex. 15). The Parent enrolled the Student in a Charter School for his kindergarten year so the District reconvened the IEP meeting on November 17, 2021 to align the IEP to what was being offered at the Charter School (D-Ex. 22). The November 2021 IEP changed the Student's program recommendation from ICT to General Education with SETSS and recommended that the Student receive on a 10 month school year SETSS in ELA 3x weekly, SETSS in Math 2x weekly, 2 weekly occupational therapy sessions, 1x30 push in and 1x30 pull out, 1-1,nurse services as needed, speech therapy 2x30,1-1, pullout. (D-Ex. 22). The District removed the Student's group speech services without any reasonable explanation.
The neuropsychological evaluation was conducted on the Student in April, 2022. The evaluator diagnosed the Student with Attention Deficit Hyperactivity Disorder and a Language Disorder (P-Ex. K, T. 414). The evaluator described the Student as a "perfect storm of attention difficulties, higher level language difficulties, which were all discrepant from what he's able to do and capable of, which is important because it also hit his other elephant in the room which is that he is self-directed and it is hard for his to push through when things are hard for him. So that creates the perfect storm. If something's harder for attention or harder for language and it doesn't come as easily to him, he is more prone to being frustrated or with drawing into himself or engaging in off task behaviors" (T. 413).
The neuropsychologist recommended that the Student be provided with the support of a one-to-one special education teacher and felt he "absolutely needed the SEIT in order to make the progress he did for "the 2021/2022 school year (T.422). He further testified that the deficits the Student demonstrated were "outside the scope of just even a special education teacher in an integrated class with many kids"(T.422). He testified that the Student should have received 10 hours of SEIT per week instead of the 6 he was currently receiving from the DOE (T. 425). He also stated that the November 2021 IEP recommendation of general education with SETTS five times a week was not sufficient one to one support for the Student as he felt he still needed more individual attention due to his deficits in attention and self-regulation (T. 428).
CONCLUSIONS OF LAW
The Individuals with Disability Education Act ("IDEA") is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A "free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction." Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show "that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits." See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).
Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see, Forest Grove v. T.A., 129 S. Ct. 2484[2009]; Rowley, at 206-07).
An appropriate program begins with an IEP which accurately reflects the results of the 1) student's present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and
6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. "The initial procedural inquiry is no mere formality." Walczak, at 129. "Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP." Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.
A Student's "IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." Endrew F. v. Douglas 580 U.S. ___ (2017). "It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot." Id.
Here, the District failed to meet their burden. Based on my review of the documents and witness testimony, I find that the District did not provide the Student with FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years. Based on the evidence presented by the Parent, it is clear the District failed this Student. It is evident that updated evaluations were necessary to determine the Student's needs during the years in question and that the Student required 1-1 support and instruction during his preschool years and in kindergarten. It is clear that the IEPs for the years in question did not allow the Student to make meaningful education progress as they lacked sufficient supports to address the Students ADHD and language disorder. Compensatory Services
Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is 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, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must "do equity and …mold each decree to the necessities of the particular case"). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child's loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, 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, supra.
Here, based on the facts above, I find that the Student is entitled to compensatory services to attempt to place the Student in the position he should have been in, if he had received the supports and services required by the Student as indicated in the evaluations, IEPs and based on the denial of FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years.
DECISION
Based on a review of the record and the details mentioned above, I find that the District failed to provide FAPE to the Student for the 2019/2020, 2020/2021 and 2021/2022 school years. I further find that the Student is eligible for compensatory services as ordered below.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby:
1) ORDERED that the District shall fund a bank of 410 hours of 1-1 Special Education Itinerant Teacher Services (SEIT) for the Student to be provided by a Provider of the Parent's choosing at a reasonable market rate with no expiration date.
2) ORDERED, that District shall fund a bank of 120 hours of Speech Language Therapy for the Student to be provided by a Provider of the Parent's choosing at a reasonable market rate with no expiration date.
3) ORDERED that the District shall provide the Student with a bank of 92 hours of Occupational Therapy to be provided by a Provider of the Parent's choosing at market rate with no expiration date.
DATED: March 15, 2023
Marisa Carbone
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. District Evidence List 1 Various Dates CPSE Evaluations Documents 39 2 12/18/2019 CPSE IEP and Meeting Notice 17 3 12/18/19 Final Notice of Recommendation 2 4 9/23/2019 Evaluation Request 1 5 12/18/2020 SEIT Progress Report 3 6 Nov. 2020 Speech and OT Progress Reports 3 7 12/18/2020 SEIT Progress Report 3 8 1/4/2021 Final Notice of Recommendation 2 9 12/22/2020 CPSE IEP 24 10 1/4/2021 IEP Authorization Form 1 11 1/18/2021 OT Progress Report 6 12 1/10/2021 Speech Progress Report 3 13 1/3/2020 Last Attend Form 1 14 3/9/2021 Child Outcomes Summary Form 1 15 3/9/2021 IEP 25 16 3/16/2021 Prior Written Notice 9 17 5/3/2021 T-5 School Location Document 4 18 1/26/2021 Social History Update 2 19 2/2/2021 Psychoeducational 4 20 8/20/2021 SEIT Quarterly Progress Report 4 21 12/9/2021 Prior Written Notice 9 22 11/17/2021 IEP 30 23 11/15/2021 Classroom Report 3 24 11/10/2021 SETSS Provider Progress Report 5 25 Undated Speech Progress Report 2 26 11/16/2021 OT Progress Report 2 Parent Evidence List No. Document Date Pages A Impartial Hearing Request 09/10/2021 18 B Amended Impartial Hearing Request 12/31/2021 15 C Records Request with Fax Confirmation 10/01/2021 7 D CPSE Assessments Various Dates 39 E Redacted Speech/Language Progress Report 11/23/2020 3
November 2020 F REDACTED Annual Report 12/18/2020 3
G REDACTED Report Undated 4
H Redacted Speech – Language Therapy Progress 01/10/2021 3 Report January 2021 I DOE Consent for Additional Assessments 01/14/2021 1 J Consent for in Person Services 07/06/2021 1 K Redacted Neuropsychological Evaluation 04/18/2022- 12
05/05/2022 L Events Log 02/03/2020- 21
12/21/2021 M Webpage Procedural Safeguards Notice Printed on 6
05/03/2021 N Part B Procedural Safeguards Notice 07/2017 51
O Webpage of the New York State Next Generation Printed on 4
English 05/03/2021
Language Arts Learning Standards P New York State Next Generation 2017 129
English Language Arts Learning Standards Q Webpage of the New York State Next Generation English Printed on 3
Language Arts Learning Standards Crosswalks 04/30/2021 R Crosswalk between P-12 ELA Common CoreLearning 2017 14
Standards (2011) and the Revised NYS Next Generation
ELA Learning Standards (2017) Main Summary S NYSED Kindergarten ELA Crosswalk 2017 7
T NYSED Prekindergarten ELA Crosswalk 2017 7
U Webpage of the New York State Next Generation Printed on 3
Mathematics 05/03/2021
Learning Standards V New York State Next Generation MathematicsLearning 06/2019 171
Standards W Webpage of the New York State Next Generation Printed on 3
Mathematics Learning Standards Crosswalks 04/30/2021 X The New York State Next Generation Mathematics Undated 4
Learning Standards CrosswalkDocuments Y New York State Next Generation Mathematics Undated 8
Learning Standards Kindergarten Crosswalk Z New York State Next Generation Mathematics Learning Undated 6
Standards Pre-Kindergarten Crosswalk AA Webpage of the Resource Guides for School Printed on 4
Success in Early Learning 05/03/2021 BB Resource Guides for School Success in Early 2019 81
Learning the Pre-Kindergarten Standards CC The New York State Kindergarten Learning Standards 2019 43
DD New York State Prekindergarten Foundationfor the Undated 62
Common Core EE Continuum of Special Education Services Summer 2020 23
FF Occupational Therapy Evaluation October 17, 12
2022 GG Speech Language Evaluation May 10, 2022 19
HH DOE Service Delivery Records Various Dates 30 II Affidavit of Redacted November 16, 10
2022 JJ Statement of Redacted November 20, 6
2022
IHO Evidence
Parent's Closing Brief 2/20/23 30 pages DOE Closing Brief 2/21/23 21 pages
Footnotes
[1] Exhibits shall be referred to as follows: "P" for Parent Exhibit; "D" for the District's or Department's Exhibits; and "IHO" for the Impartial Hearing Officer's exhibits.
[2] Reference to the Transcript shall be referred to as "T".
[3] The list of exhibits is attached.