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CASE NUMBER: 217862
FINDINGS OF FACT AND DECISION
Case Number: 217862
Student's Name [1]: [REDACTED], ("Student")
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: ("Parent") [REDACTED], ("Parent")
Request Date/Date Complaint Filed: 9/16/21
Date(s) of Hearing: 4/6/22, 5/2/22, 5/20/22, 6/3/22,, 6/14/22, 6/15/22, 6/28/22, 7/27/22, 9/2/22, 9/19/22, 10/20/22, 11/16/22, 1/19/23, 4/19/23, 5/16/23, 6/9/23, 8/15/23
Actual Record Closed Date: 10/10/23
Date of Decision: 10/29/23
Hearing Officer: IHO, Barbara J. Caravello, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
April 6, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
May 2, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
May 20, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
June 3, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
June 14, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
June 15, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
June 28, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
July 27, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
September 2, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
September 19, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
October 20, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
November 16, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
December 13, 2022
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
January 19, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
February 2, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
February 28, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
March 3, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
March 28, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
April 19, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
May 16, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
June 9, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
August 15, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC" or "Impartial Hearing Report") filed on or about October 30, 2022.
The DPC alleges in relevant part that the Department of Education ("DOE" or "District") denied the Student a free and appropriate public education ("FAPE") under the Individuals with Disabilities Education Act for the 2019-2020, 2020-2021, and 2021-2022 school years and that the Student is entitled to compensatory time for services missed.
An interim order for independent evaluations was issued after a hearing. Thereafter, a hearing on the merits commenced on November 16, 2022 and hearing dates were scheduled on December 13, 2023, January 19, 2023, February 6, 2023, February 28, 2023, March 3, 2023, March 28, 2023, April 19, 2023, May 16, 2023, June 9, 2023 and August 15, 2023. Hearing adjournments and extensions were granted for completion of evaluations, non-appearance of parties, and availability of witnesses. Extensions were not deemed harmful to the Student who was receiving services.
Parents were represented by [REDACTED]. The DOE was represented by [REDACTED]. and [REDACTED].
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.
ISSUES
ISSUE I:
Did the DOE provide the Student with a free and appropriate public education for the 2019-2020, 2020-2021, and 2021-2022 school years?
ISSUE II:
Did the Parent(s) act reasonably throughout the 2019-2020, 2020-2021 and 2021-2022 school years? ISSE III: Is the Student entitled to compensatory time for services to which Student was entitled and not provided for the 2019-2020, 2020-2021, and 2021-2022 school years?
FINDINGS OF FACT
The Student is [REDACTED] years old and is alleged to be academically classified as Other Health Impaired. The Student has been diagnosed with Attention Deficit Disorder, ("ADHD") as well as "[REDACTED]", "[REDACTED]," (Ex. R). These diagnoses were the result of an independent psychiatric evaluation, arranged by the Parent, which took place in 2019. The Student received psychoeducational testing, an assistive technology evaluation and a student vocational worksheet was completed, all between November 18, 2019 and January 28, 2020, (Ex. Q). As part of the psychoeducational evaluation, the Student's overall cognitive abilities showed that she was in the high average range. Although the Student appears to have the capacity to perform well, she was annually receiving "promotion in doubt" assessments on her report cards for the years in question, (Exs. J, K, L, M, N).
It is undisputed that the Student has attended public school in the City of New York since kindergarten, (Ex. A). Although there is evidence that the Student has engaged in oppositional and maladaptive behaviors in the school setting, there is no evidence that a functional behavior assessment or a behavioral plan was conducted by the DOE.
The Student was issued Individual Education Plans ("IEP's") since kindergarten which recommended an Integrated Co-Teaching Classroom, ("ICT").
The Student attended [REDACTED] from third through seventh grade from which she was frequently suspended. The Student began attending [REDACTED] for 8th grade where she continued to receive "promotion in doubt" comments on her report cards and her teachers reported having issues with her classroom behavior.
In the 2019-2020 school year, the Student attended eighth grade at [REDACTED]. During this year, the Student had two separate IEP service recommendations. Prior to the first semester, the Student was recommended an ICT class for 15 periods a week of English-language arts ("ELA") and 10 periods a week of Math, along with Counseling and occupational therapy. An IEP dated February 12, 2020 recommended for the second semester, a decrease to 10 periods per week of ELA in an ICT class with 2 periods per week of ELA-SETSS. The periods of Math remained the same (10), with 5 periods each of Science and Social Studies. The Student was recommended 2 periods per week of Counseling. There was no occupational therapy, ("OT") recommended. The Student received failing grades in Math and Writing and was considered "Promotion in Doubt" on her annual evaluation.
In the 2020-2021 school year, and again in the 2021-2022 school year, the Committee on Special Education ("CSE") continued to reduce the Student's services, while the Student continued to struggle and receive "Promotion in Doubt" comments on her report card. The Parent continued to disagree with the CSE each year when every reduction took place, (Exs. B, C, D, E, F, G).
No ICT periods for ELA were recommended and Math was decreased from 10 to 4 periods. Social Studies was decreased from 5 periods to 3 per week. The SETSS assistance was not provided in the first part of the year and when it was provided, the Student was in a peer group of 7th graders, although she was a ninth grader.
The Student remained to receive "Promotion in Doubt" warnings for the 2021-2022 school year. Yet, in this school year, the April 2021 IEP was not implemented until September of 2021. The Parent obtained considerable supplemental services outside of school at [REDACTED].
CONCLUSIONS OF LAW
Denial of FAPE:
The Individuals with Disabilities Education Act ("IDEA") is a 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).
The IDEA was legislated to, "ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs," Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). The hallmark of a FAPE is 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," id. Each disabled student is entitled to an educational program that is reasonably calculated to enable the student to receive educational benefits, Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 995-96 (2017).
"The initial procedural inquiry is no mere formality," Id, 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.
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 Committee on Special Education, ("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, supra.
Here, the testimony of the Parent is that during each IEP meeting, she pointed out the Student's continued struggle with her academics and her disagreement with the decision to cut services. I find this testimony credible. The Parent stated that she was forced to provide tutoring to keep the Student from repeating each grade. The Parent provided evaluations, which the CSE did not adequately consider.
The Parent did not receive timely and adequate notices, including updated IEP's. The Parent was not included in the Vocational Assessment and there was no further transitional assessment conducted.
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 or 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 206-207).
A school district has the burden of proof, including the burden of persuasion and the burden of production in IDEA due process hearings, except that a parent or person in a parental relationship, seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and the burden of production with respect to the appropriateness of such a placement, In re: Student with a Disability, NYS Educational Agency, 14-022, (3/31/14); In re: Student with a Disability, NYS Educational Agency, 175353, (12/14/18); M.P.G. v. N.Y.C. Dep't. of Educ., 2010 WL 3398256, (S.D.N.Y. 8/27/10); NYS Educ. Law § 4404(1)(c).
Here, there are no issues of tuition reimbursement however, the burden remains on the DOE show that the Student was offered a FAPE. I find that the DOE has failed to adequately consider many areas of the Student's disabilities and failed to adequately evaluate the Student's suspected areas of disability and maladaptive behaviors in the classroom which were apparent from a very young age.
It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring the student to a level of learning that is not only sufficient to confer some educational benefit upon the 'handicapped' child, Rowley, supra, but emphasizes "special education and related services designed to meet the Student's unique needs and prepare him for further education, employment and independent living as well as 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 generally, Forest Grove v. T.A., 129 S.Ct. 2484, 2491 [2009]; Rowley, at 206-07. The DOE provided certain services for the Student but while the Student was clearly struggling to keep from being held over to repeat the grade, the CSE continued to decrease services. If the services that the Student was receiving were no longer appropriate, it was the responsibility of the District to evaluate and find which services would be more appropriate. This could only be determined by a comprehensive array of evaluations, which were not adequately administered. The Student was eventually promoted, but this only occurred when the Parent sought considerable academic assistance outside the school setting.
Compensatory Education
Compensatory education is defined as educational services above and beyond that normally due to a student under his state's education law. The purpose is to place the student in the position that the student would be in had the district provided the appropriate services in the first place, Reid v. Dist. Of Columbia, 43 IEDLR 32 (D.C. Cir. 2005).
Compensatory education may be awarded to a student who remains eligible for special education services if he or she was denied a FAPE. 20 U.S.C.§§ 1401(3)l 1412(a)(1)(B); P v. Newington, 546 F.3d 111, 123 (2d Cir. 2008), (stating that the "IDEA allows a hearing officer to fashion an appropriate remedy" and that "compensatory education is an available option under the Act to make up for a denial of a FAPE"), Student v. New York City Dep't Of Educ., 2008 WL 4890440, at *23 (E.D.N.Y., 1/30/2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed Appx 411 (2d Cir. 2010); Application of a Student with a Disability, Appeal No. 17-015. The Parent need not establish a "gross violation" of the IDEA to be awarded compensatory relief. I agree, however, that the DOE's insistence upon ignoring the obvious benefit derived from the absent services and application of illegal blanket policies does rise to the level of a gross violation, id.
The IHO has broad authority in crafting an appropriate equitable remedy, Burlington v. Dep't of Educ., 471 U.S. 359, 369 (1985), (recognizing that the IDEA "confers broad discretion on the court" in granting appropriate relief, 20 U.S.C. 1415 (i) (2)(C) (iii).
In fashioning compensatory relief, "the inquiry must be fact-specific and the award must be "reasonably calculated to provide the educational benefits that likely would have accrued from special education services that the school district should have supplied in the first place," Reid v. Dist. of Columbia, 401 F. 3d 516, 524 (D.C. Cir. 2005). Services Missed:
The Parent's witness, [REDACTED], is the Chief of Services at [REDACTED], where the Student has attended after-school for three years. The witness believed that the Student should have been in an ICT class for the entirety of her school career and should also have had executive functioning coaching, daily for one hour as well as evidence-based, individual instruction to address remediation as well as current content, (Tr. 5/16/23, p. 272). The witness attended some of the Student's IEP meetings, (Tr. 5/16/23, p. 265). The witness seemed most concerned that the Student had been passed from grade to grade when she was struggling in all areas of academics, (Tr. 5/16/23, p. 270). The Student had been "continually failing" and the service did what they could in the time available to get the Student to the point where she could pass her classes for the year, (Tr. 5/16/23, p. 259-261).
The Student did receive two, forty-five minute session per week, which the witness felt was insufficient to bring the Student to academic success but was enough to pass, (Tr. 5/16/23, p. 260). The Parent also believed that the Student would not have passed her grades in the 2020-2021 and 2021-2022 school years, (Ex. V, p. 5).
I do find that there was no evidence that reducing this Student's services in the manner that they were was reasonable, while an academic struggle was apparent, (Exs. E, F, H, I, J, K, L, M, N, P, Q, R, S, T). The fact that the academic help provided by the Parent just "took her from the brink of failure, (Tr. p. 300), year after year, does not relieve the DOE from responsibility for consistently taking services away from a student that clearly needed help.
In addition, it was established that the Student did not receive adequate evaluations, including but not limited to the areas of speech-language functioning and occupational therapy. Failing to evaluate the Student in such areas, where the Student was clearly struggling with executive functioning and language is an example of the DOE's failure to provide this Student a free and appropriate public education.
Of the recommendations by the witness, [REDACTED], I credit the following as necessary to make the Student whole due to the DOE's failure to properly and timely evaluate or provide adequate services. The witness recommended that the Student receive 540 hours of make-up hours to strengthen executive functioning skills which she came to by multiplying 180 hours of lost services by 3 years. In addition, ELA skills missed were calculated at 360 hours over 3 years, Math at 216 hours, Science at 144 hours and History at 144 hours. The witness also spoke about remedial help with Spanish, although it was unclear if the Student would be taking a third year of Spanish. I will not add Spanish to the amount of relief, therefore.
The witness recommended what she called, "direct remedial instruction," (Tr. pp. 300-302). She additionally requests for separate remedial help for the various subjects taught the Student. I will not credit any of the 540 hours requested for this recommendation. It is not clear that the skills taught under this heading of "direct remedial instruction" are not duplicative.
The total amount of compensatory services ordered herein come to $1,404 hours at market rate, as per the order below. I will issue this as a bank of hours for an indefinite time.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered and declared that:
1. The DOE failed to provide a free and appropriate public education to the Student for the 2019-2020, 2020-2021, and 2021-2022 school years and subjected the Student to disability-based discrimination.
2. The Parent acted reasonably throughout the 2019-2020, 2020-2021 and 2021-2022 school years.
3. The DOE must fund a bank of 1,404 hours of compensatory education for an unlimited period of time at market rate, by providers of the Parent's choosing, such services consisting of:
Executive functioning training, in the amount of 540 hours, ELA remediation, and/or tutoring in the amount of 360 hours, Math remediation, and/or tutoring in the amount of 216 hours, Science remediation, and/or tutoring in the amount of 144 hours History remediation, and/or tutoring in the amount of 144 hours.
4. All funded amounts shall be paid within 30 days of receipt of any contracts or invoices required by the District's Implementation Unit in the usual course of business.
5. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.
SO ORDERED:
Dated: October 29, 2023
Barbara J. Caravello, Impartial Hearing Officer
APPEAL RIGHTS
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.
Footnotes
[1] Personally identifiable information is attached as Appendix A, "Redaction Identification Page," to this decision and must be removed prior to public distribution.