New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 563145 - NYC: 218932

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents and the child will be referred to as Student.

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint dated October 6, 2021 by Parent (Parent Ex. A). Parent claims a denial of FAPE for the 2018/19, 2019/20 and 2020/21 school years and seeks, as compensatory relief, 780 hours private tutoring at a fair market rate to address Student’s educational deficits owing to such FAPE denial.

During the course of the proceedings, the parties moved to extend the case compliance date in this matter on the dates indicated in IHO Exhibits, all in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering such 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 extension of time for such purposes were in accordance with the requirements of due process. Accordingly, the 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 May 20, 2022.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

During the 2018/19, 2019/20 and 2002/21 school years, Student was placed in an ICT class setting with related services, and assigned a DOE classification of Autism. Parent alleges that such placement failed to address Student’s educational needs, resulting in a denial of FAPE for each such school year, and now seeks the compensatory instruction noted above to address his educational deficits and to make Student whole. Parent cites the findings of a Neuropsychological evaluation (Parent Ex. J), conducted by a DOE-contracted physician, that documented Student’s educational deficits and his need for substantial remedial instruction, in the form of 1:1 tutoring of 780 hours to appropriately address such deficits. The DOE does not dispute the findings of the aforementioned Neuropsychological evaluation, including the recommended relief, and presented no evidence, either documentary or by witness testimony, to defend its placement recommendations for Student for such three school years at issue.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that –

(A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

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

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

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

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

§ 300.115 Continuum of alternative placements.

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

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

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

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

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

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

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

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

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

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

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”).

Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

ANALYSIS

Pursuant to applicable law, case law and regulations cited above, the burden is on the DOE to establish that it has provided the Student with a FAPE and that it has effectively and materially implemented the provisions of a Student’s educational placement. In that regard, it is noted that the DOE did not present a case, did not present documentary evidence, and did not present witness testimony. Accordingly, it is determined that the DOE has denied Student a FAPE for the 2018/19, 2019/20 and 2020/21 school years.

Parent seeks compensatory relief, as noted above, to make Student whole as a result of the FAPE denial of the three school years noted above.

Uncontested documentation, by way of the aforementioned Neuropsychological evaluation, resulted in the following diagnoses: Attention-Deficit/Hyperactivity Disorder (ADHD), predominantly inattentive presentation, moderate; Autism Spectrum Disorder Level 1, requiring support for social communication and restricted and repetitive behaviors, with accompanying language impairment; Developmental (Mixed Receptive-Expressive) Language Disorder; Persistent (Chronic) Motor or Vocal Tic Disorder, with vocal tic only; Specific Learning Disorder (SLD), with severe impairment in reading; moderate impairment in written expression; and severe impairment in mathematics. All such diagnoses were based on the Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V), Wechsler Individual Achievement Test, Fourth Edition (WIAT-4), Boston Naming Test, Second Edition (BNT-2), Beery-Buktenica Visual-Motor Integration, 6th Edition (Beery VMI), Delis-Kaplan Executive Function System (D-KEFS), Wisconsin Card Sorting Test (WCST)-Computerized, California Verbal Learning Test, Children's Version (CVLT-C), and A Developmental Neuropsychological Assessment, Second Edition (NEPSY-II), Adaptive Behavior Assessment System, Third Edition (ABAS-3). All such evaluations and subtests as noted above were fully documented in the Neuropsychological evaluation and need not be more fully reiterated here. However, in support of the relief to be ordered below, it is noted that such evaluations documented Student’s weaknesses in language, executive functioning, memory, and learning, all of which significantly impede his ability to achieve at the same level as his peers. More specifically, he was measured with marked weaknesses in verbal comprehension, including vocabulary and verbal problem solving, due to his significant language deficits, marked weaknesses in receptive, expressive, and pragmatic language, commensurate with findings from the cognitive assessment battery, significant difficulties in naming efficiency and retrieval, struggles with recalling language-based material for comprehension and expression, and with very low vocabulary skills. Additionally noted were weaknesses in verbal learning and memory, consistent with his language-based difficulties, significant struggles with organizing visual material in his mind for subsequent recall, and weaknesses in graphomotor coordination and fine motor speed and dexterity which further hinder writing efficiency and output. He also presented with weaknesses in overall academic achievement and in foundational reading, writing, and mathematics skills, with an inability to decode with automaticity and fluency, placing him several years behind where he should be, and pronounced challenges with phonological awareness, essential for literacy development, and resulting in diminished ability to recognize words and to read with accuracy, speed and comprehension. His writing demonstrated pronounced challenges with spelling, writing speed and organization of ideas coherently and efficiently. Math problem solving skills were measured as being significantly weak, with the greatest challenges in completing single-operation word problems, understanding monetary values, and interpreting math concepts in algebra and geometry, and with significantly longer periods of time required to retrieve certain math facts.

The uncontested Neuropsychological evaluation recommended intensive daily academic evidence-based intervention focused on remediating his weaknesses in reading, writing, and math. Specifically, it was noted that Student required “support of a learning specialist 1:1 who can provide daily remediation for his significant academic weaknesses. He requires no less than 780 hours focusing primarily on his reading and math skills, with attention also paid to his writing skills to help him close the gap of where he is now (at least 3 years below grade level) and where he should be. He requires a learning specialist who can provide daily, systematic, cumulative, multi-sensory, explicit, and intensive structured literacy intervention with individualized goals, to improve his literacy skills. He also requires a highly structured writing intervention such as The Writing Revolution (Hochman method). In addition, [Student] requires intensive academic remediation in mathematics using a multisensory program grounded in concrete-representational-abstract methodology. He needs individualized sessions with a learning specialist who can continue to address his pervasive academic difficulties” (Parent Ex. J, p. 15).

As the DOE did not challenge the findings and recommendations of the Neuropsychological evaluation, conducted by a DOE-contracted physician, accepted as fully independent and comprehensive, and for which it declined to cross examine the neuropsychologist, and as the DOE did not present any evidence to support Student’s ICT placement for the school years at issue, the findings and recommendations of the Neuropsychological evaluation are considered dispositive as the appropriate remedy for the FAPE denial of the three school years at issue. Parent shall be awarded compensatory relief as more fully set forth below.

ORDER

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

1. The DOE denied Student a FAPE for the 2018/19, 2019/20 and 2020/21 school years.

2. To remedy such denial of FAPE as noted above, the DOE shall create a “bank” of compensatory services of 780 hours of 1:1 tutoring in the areas of English Language Arts (ELA), Mathematics, Writing, and any other areas which, in the judgment of the tutor, are necessary to address Student’s educational deficits, all to be furnished by provider[s] of Parent’s choosing, and to be directly funded by the DOE at such provider[s]’ regular rates for such services, upon submission of invoices for such services provided.

2. The DOE shall comply in all respects with this Decision and Order.

Dated: May 23, 2022 ______________________

BRUCE S. OLINGER, ESQ.

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 the 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

PARENT

A. 09/13/2021 Hearing Request, dated 9/13/21 (17 pages)

B. Psychoeducational Evaluation Report, dated 9/13/17 (5 pages)

C. Individualized Education Plan, dated 9/20/17 (18 pages)

D. Parent and School Emails re: IEP Meeting, dated 9/12/18 (4 pages)

E. Individualized Education Plan, dated 9/20/18 (11 pages)

F. Parent and School Emails Re: After School Program, dated 10/8/18 (3 pages)

G. Parent and School Emails re: Struggling with Homework, dated 10/1118 (2 pages)

H. Psychoeducational Evaluation Report, dated 10/14/20 (3 pages)

I. Individualized Education Plan, dated 10/15/20 (14 pages)

J. Neuropsychological Evaluation, dated 4/4/21 (24 pages)

K. 2020-1040 Income Tax Return, dated 2020 (2 pages)

DOE

NONE

IHO

I. Extension Orders, various dates (6 pages)