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FINDINGS OF FACT AND DECISION
Case Number: 217542
Student’s Name: REDACTED
Date of Birth: REDACTED
Hearing Requested By: Parent
Dates of Hearing: November 5, 2021, April 24, 2023, May 16, 2023, June 14, 2023, July 26 2023, August 22, 2023, and August 28, 2023 Record Closed Date: August 28, 2023
Hearing Officer: Audrey Daniel, Esq.
Names and Titles of Persons who appeared at the November 5, 2021 Hearing
For the REDACTED REDACTED, District Representative
For the Parent
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the April 24, 2023 Hearing
For the REDACTED REDACTED, District Representative
For the Parent
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the May 16, 2023 Hearing
For the REDACTED REDACTED, Esq., Agency Attorney
For the Parent
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the June 14, 2023 Hearing
For the REDACTED REDACTED, Esq., Agency Attorney
For the Parent
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the July 26, 2023 Hearing
For the REDACTED REDACTED, Esq., Agency Attorney
For the Parent
REDACTED, Esq., Attorney for Parent REDACTED, DPT, Physical Therapist REDACTED, Ph.D., Speech Therapist
Names and Titles of Persons who appeared at the August 22, 2023 Hearing
For the REDACTED REDACTED, Esq., Agency Attorney
For the Parent
REDACTED, Esq., Attorney for Parent REDACTED, Ph.D., Neuropsychologist
Names and Titles of Persons who appeared at the August 28, 2023 Hearing
For the REDACTED REDACTED, Esq., Agency Attorney
For the Parent
REDACTED, Esq., Attorney for Parent REDACTED, Parent REDACTED, Occupational Therapist
I. Introduction and Procedural History
On October 18, 2021, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents (“Parent” or “Parents”). A pendency hearing was held on November 5, 2021. There were numerous status conferences held in an attempt to facilitate settlement. Hearings were held on April 24, 2023, May 16, 2023, June 14, 2023, July 26, 2023, August 22, 2023, and August 28, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq., and Parents were represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective August 28, 2023.
II. Background
An impartial hearing request was filed on September 13, 2021. (Exh. A). An amended due process complaint was filed on August 19, 2022. (Exh. D). Both complaints allege a denial of FAPE for the 2020-2021 and 2021-2022 school years, and request, as relief, significant compensatory education, a declaration of the appropriate program, and other relief. The REDACTED did not put on a case. Parent provided direct testimony of two witnesses by affidavit, and all witnesses were available for cross-examination. (Exh. W and Exh. X). The remaining witnesses, including Parent, provided direct testimony during the hearing.
III. Discussion
FINDINGS OF FACT AND DECISION
As the REDACTED did not put on a case and did not dispute Parent’s allegations that it did not provide FAPE for the 2020-2021 and 2021-2022 school years, an analysis of the fact concerning the IEP meetings is not necessary. The only remaining issues are Parent’s request for relief in terms of Student’s program, and compensatory services. Student received services pursuant to a pendency order, including, for a twelve-month school year, ten hours per week of Special Education Itinerant Teacher services, Individual Speech-Language Therapy, 3 x 30 minutes per week, Individual Occupational Therapy, 2 x 30 minutes per week, and Individual Physical Therapy, 2 x 30 minutes per week. (Exh. B, pages 1, 16 and Exh. C).
An independent physical therapy evaluation was conducted on August 23, 2021, and the evaluator testified at hearing. (Exh. F). The evaluator found that Student presents with mild to moderate deficits in most areas of gross motor functioning and recommended two physical therapy sessions per week for thirty minutes each. (Exh. F, page 10). She recommended one hour per week per week for compensatory services. (Tr. 104-5 and Exh. F, page 10).
An independent occupational therapy evaluation was conducted on October 3, 201 and March 3, 2022. (Exh. G). The evaluator found Student presented with severe and significant sensory processing challenges, difficulty with sustained attention, decreased eye-hand and bilateral coordination skills, decreased visual motor integration and motor coordination skills, poor handwriting, and difficulties with peer social interaction, play skills, organization and decreased postural strength and endurance. (Exh. G, pages 12-3). She recommended occupational therapy 3 x 45 minutes per week for a twelve-month school year- two sessions per week of individual therapy, and one in a group of no more than two. (Exh. G, page 13 and Exh. X, page 12). The evaluator recommended 138 hours of compensatory occupational therapy to address Student’s significant needs, based on a calculation of 2 x 45 minutes sessions per week for a forty-six-week school year for two years. (Exh. G, page 14).
An auditory processing and speech and language evaluation was conducted in September of 2021 and the evaluator testified at hearing regarding Student’s needs and recommendations for both Student’s program and compensatory services. (Exh. H and Exh. W). The evaluator concluded that Student presented with an auditory processing disorder, as wells as deficits in receptive and expressive language skills, pragmatic language skills and articulation.. (Exh. H, page 13). The evaluator recommended individual speech and language therapy, 3 x 40 minutes per week (Exh. H, page 14). The evaluator recommended 138 hours of compensatory speech language therapy, based on the calculation of 3 hours per week for 46 weeks. (Exh. T and Exh. W).
A neuropsychological evaluation was conducted in July 7, 202. (Exh. I). The evaluator provided extensive testimony by affidavit and was subject to cross-examination during the hearing. (Exh. J). After extensive testing, observation and document review, the evaluator diagnosed Student with Developmental Coordination Disorder, S Specific Learning Disorder with moderate impairment in reading, written expression, and spelling accuracy, and Language Disorder. (Exh. I, page 13). The evaluator recommended twenty hours per week of special education teacher support for a twelve-month program, as well as counseling, one time per week individually, and one time per week in a group setting. (Exh. I, page 14, Exh. W, page 9). The evaluator recommended 920 hours of compensatory special education instruction hours based on the difference between the twenty hours per week of recommended services and the ten hours recommended by the IEP. (Exh. W, page 10). She also recommended 92 hours of counseling hours, based on the REDACTED’s failure to recommend counseling for the two years in question. (Exh. W, page 10). Additionally, Parent testified that a significant number of hours of the special education teacher services that were ordered under pendency were not provided. Specifically, the uncontroverted testimony is that 661 hours of ordered services were not provided. (Tr. 210-211 and Exh. V).
Parent submitted a tuition bill for the private school tuition. (Exh. Y). Despite requesting an extraordinary amount of compensatory services, Parent requests reimbursement for this cost.
FAPE
The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). 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). In Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "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). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).
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)
BURDEN OF PROOF
The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.
The REDACTED did not provide testimony, submit evidence, or otherwise argue that the IEP provided FAPE for the 20202021 and 2021-2022 school years. Thus, the REDACTED has not met its burden of proof and Parent is entitled to relief.
RELIEF REQUESTED
COMPENSATORY EDUCATION SERVICES
The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d
Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarg ed City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of 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.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). 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). 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-forhour 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.
Parent requests significant compensatory education services to make up for the REDACTED’s failure to provide FAPE for the relevant school years. Specifically Parent requests: a. 1179 hours of compensatory 1:1 Special Education Teacher Services; b. 92 hours of compensatory Speech-Language Therapy; c. 92 hours of compensatory counseling, and d. 138 hours of compensatory Occupational Therapy; e. 46 hours of compensatory Physical Therapy.
Parent, through extensive evaluations and testimony, showed that Student is entitled to the above compensatory services and provided uncontroverted proof regarding the calculation of the requested hours. Therefore, I order a bank of compensatory education services as requested above to be provided by a provider of Parent’s choice at a rate not to exceed reasonable market rate. As Parent’s witnesses testified that the compensatory services would put the Student either in the same position had FAPE been provided or would provide the services that they would have recommended, I decline to award Parent tuition at her chosen general education private school.
APPROPRIATE PROGRAM
Parent submitted extensive testimony and evaluations regarding the appropriate program for Student, including appropriate Special Education Itinerant Teacher services and related services, and assistive technology. As above, Parent provided witness affidavits for the evaluators. Parent’s witnesses provided a credible basis for their recommendations for the appropriate program and services. Therefore, I order the REDACTED to provide the appropriate program as indicated by the evaluations and extensive testimony of Parent’s witnesses.
IV. Order
IT IS THEREFORE ORDERED THAT:
2. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2020-2021 and 2021-2022 school years;
3. The REDACTED shall fund a bank of compensatory services, to be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate, including: a. 1179 hours of compensatory 1:1 Special Education Instruction Services; b. 92 hours of compensatory Speech-Language Therapy services; and c. 138 hours of compensatory Occupational Therapy services; d. 92 hours of compensatory Counseling services e. 46 hours of compensatory Physical Therapy services.
4. The appropriate program for the 2020- 2021 and 2021-2022 school years includes: (i) a 12-month school year, (ii) up to 20 hours per week of Special Education Teacher services, (iii) SLT 3x40 (1:1) (iv) Occupational Therapy, 2x45 (1:1) per week, (v) Counseling, 1 x 30 (1:1) and 1 x 30 (Group), per week, and (vi) Physical Therapy, 2 x 30 minutes per week (1:1) and (vii) Transportation to services, if needed.
5. Parent’s request for reimbursement for tuition at Student’s general education private school placement is denied.
Dated: September 1, 2023
AUDREY DANIEL, 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.
EXHIBITS ADMITTED AT HEARING
A. Parent Exhibit Description Date Pages Impartial Hearing Request 09/13/2021 (17 pages)
B. CPSE IEP 05/20/2019 (19 pages)
C. Order on Pendency 11/15/2021 (8 pages)
D. Amended Impartial Hearing Request 08/19/2022 (17 pages)
E. Amended Impartial Hearing Request Acceptance Notice 01/05/2023 (2 pages)
F. Independent Physical Therapy Evaluation Report 08/23/2021 (12 pages)
H. G Independent Occupational Therapy Evaluation 10/03/2021; 15 Report 03/03/2022 Independent Speech Language and Auditory 09/30/2021 (24 pages)
I. Processing Evaluation Report Independent Neuropsychological Evaluation Report 07/07/2022 (24 pages)
J. CPSE PT Evaluation Report 12/13/2016 (3 pages)
K. CPSE OT Evaluation Report 12/12/2016 (5 pages)
L. CPSE Speech and Language Evaluation Report 12/14/2016 (4 pages)
M. CPSE Psychological Evaluation Report 11/28/2016 (5 pages)
N. CPSE Behavioral Observation Report 11/28/2016 (1 page)
O. CPSE Social History 11/28/2016 (2 pages)
P. REDACTED Psychoeducational Evaluation Report 03/15/2019 (3 pages)
Q. PT Pendency RSA 01/04/2022 (3 pages)
R. OT Pendency RSA 01/03/2022 (3 pages)
S. SLT Progress Report 01/03/2022 (3 pages)
T. OT Progress Report 02/02/2022 (14 pages)
U. SEIT Progress Report 05/22/2023 (11 pages)
V. Exhibit Description Date Pages Pendency SEIT Services Accounting Letter from 05/22/2023 (1 page)
W. Integrated Treatment Services agency Affidavit of REDACTED, PhD, NCSP 8/22/2023 (11 pages)
X. Affidavit of REDACTED, OTR/L 08/28/2023 (14 pages)
Y. Private School Registration Agreement and school calendar, 2020-2021 School Year 08/05/2020 (2 pages)
REDACTED
None.
Impartial Hearing Officer None.