New York City Department of Education, Impartial Hearing Decision

NYSED # 563174 / NYC # 218961

FINDINGS OF FACT & DECISION

Student’s Name: Redacted

Date of Birth: Redacted

District: New York City Department of Education (hereinafter referred to as “District”)

Hearing Request by: Redacted

(hereinafter referred to as “Parent”)

Hearing Date: July 7, 2022, July 8, 2022

Record Close date: September 1, 2022

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 7, 2022

For the Student:

Redacted, Esq, Attorney

Redacted, Parent

For the Department of Education:

Redacted, Consultant Representative

Redacted, District Attorney

Redacted, Special Education teacher

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 8, 2022

For the Student:

Redacted, Esq., Attorney

Redacted, Parent

Redacted, Neuropsychologist

For the Department of Education:

Redacted, Consultant Representative

Redacted, District Attorney

Redacted, District Representative

ISSUES:

This matter appears before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about October 6, 2021. The DPC alleged that the District denied the Student a Free and Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Act (“IDEA”) of 2004 by failing to provide Student with FAPE for the 2016-2017, 2017-2018, 2018-2019, 2019-2020 and 2020-2021 school years. The Parent has requested reimbursement for the cost of a private neuropsychological evaluation and for private tutoring during the years in question plus compensatory services.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on or about February 2, 2022. A prehearing conference was held on March 18, 2022, to discuss the issues in the case. A status conference was held on May 11, 2022, to select hearing dates. On June 23, 2022, the District brought a Motion to Dismiss alleging that the Parent’s claims relating to the 2016-2017 and 2017-2018 school years is time barred. On July 6, 2022, the Parent filed an Opposition to the District’s Motion to Dismiss. Shortly thereafter I informed the parties that I would rule on the Motion to Dismiss during the impartial hearing. A hearing was held on July 7, 2022, and July 8, 2022. At the hearing, the District presented exhibits, which were entered into evidence and presented one witness. The Parents presented exhibits which were entered into evidence and presented three witnesses. Post-trial briefs were submitted by both attorneys. The record closed September 1, 2022. There were three extensions of the compliance date to allow for testimony and post-trial briefs.

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FINDINGS OF FACT

Student is an Redacted-old who attended Redacted (“Redacted”) since preschool and is classified as a Student with a speech and language impairment. Student is diagnosed with Specific Learning Disorders with impairment in reading (“Dyslexia”) and written language (P-Ex. B). He displays difficulty with attention and executive functioning and his math skills are below average (P-Ex. B). He exhibits more anxiety and fear than most students his age (P-Ex. B). His academic skills are below average in virtually every area assessed (P-Ex. B).

On May 3, 2016, the District convened an IEP meeting to discuss Student’s program for kindergarten, 2016-2017 school year (P- Ex. M, D-Ex. 2). Student was classified with a Speech and Language Impairment and was placed in a general education classroom in a DOE community school with related services of speech language therapy and specialized transportation (P-Ex. M, D-Ex. 2). Apparently, the classrooms at Redacted were all Integrated Co-Teaching (“ICT”) classroom so the Student was placed in an ICT class (P-Ex. M). The Student struggled in his kindergarten class (P-Ex. M). It was reported that he would burst into tears when presented with a difficult task and would tend to read the same books from memory (P-Ex. C). The task of writing presented with tremendous effort for him (P-Ex. C).

On May 3, 2018, the District held an IEP meeting for first grade, 2017-2018 school year (D-Ex. 4). It failed to hold a meeting the prior year for the Student’s first grade. The Committee on Special Education (“CSE”) recommended the Student be placed in a general education classroom with related services of occupational therapy and speech and language therapy (D-Ex. 4). The Parents expressed their concerns at this meeting but the CSE refused to consider any alternative placements (P-Ex. M). The Student remained at Redacted for second grade (2018-2019 school year) and was again placed in an “ICT classroom where he continued to struggle with reading, writing and math (P-Ex. M)

The next IEP meeting for the Student was held on May 1, 2019 (D-Ex. 6). The CSE recommended placement in an “ICT” class with related services of occupational therapy and speech and language therapy. The Student remained at Redacted for third grade, the 2019-2020 school year (P-Ex. M). The Parents were concerned with the Student’s continued struggles in school so they had the Student evaluated by a neuropsychologist in September 2019 (P-Ex. M).

The neuropsychologist noted that the Student was below average in virtually every academic area (P-Ex. B). He diagnosed the Student with a Specific Learning Disorder in reading, otherwise known as dyslexia, and in written language (P-Ex. B). He stated that the Student required” individual support and a specialized program in order to build his academic skills which were well below grade level. The Student needs support in the classroom due to attention and executive functioning difficulties especially with focusing and managing tasks” (P-Ex. B). He further stated that the Student should be placed in a small, specialized classroom environment that can provide systematic curriculum designed to build academic skills in learning disabled students (P-Ex. B). He should be placed in a small student to teacher class among students of similar cognitive development without significant social, emotional or behavioral needs (P-Ex. B). He emphasized the need for the Student to receive “intensive multisensory reading interventions, direct instruction and strategic instruction; multisensory language instruction is recommended; an intense and systematic approach to instruction linking instruction to the child’s particular difficulties and paying explicit attention to the structure of language (P-Ex. B). In addition, the evaluator stated that the Student needs to learn writing concepts in a highly structured and systematic manner and required support in relation to his attention and executive functioning skills” (P-Ex. B).

The Parent shared this report with the CSE but they were unable to reconvene to change the Student’s IEP and incorporate the recommendations of the neuropsychologist into the Student’s IEP (P-Ex. M). The Parent then hired a multisensory tutor for the Student who did see the Student during school hours at the Student’s location (P-Ex. M). Although the Student was responding well to the private tutoring, he did receive a promotion in doubt letter during the 2019-2020 school year (P-Ex. M). The Student continued to struggle in school and especially during the COVID-19 Pandemic when his anxiety and fears of inadequacy intensified (P-Ex. M).

The next IEP meeting was held on April 22, 2020 (D-Ex. 8). The CSE recommended the same program for the Student that he had been in for the last several years, an ICT class with related services of occupational therapy and speech and language therapy (P-Ex. M). The CSE refused to follow the recommendations of the neuropsychologist to place the Student in a small, specialized classroom for students with language-based learning disabilities (P-Ex. M). The Student repeated the third grade at Redacted for the 2020-2021 school year.

The District produced one witness at the hearing. It was the testimony of Redacted who was the special education teacher for the Student in his ICT class for the 2019-2020 school year and the general education teacher in his ICT class for part of the 2020-2021 school year (T. 40). She testified that she provided the Student with 45 minutes individual instruction in reading every day and 45 minutes individual instruction in writing every day (T. 40). These 90-minute sessions were to the exclusion to the other students, 20 to 25, in the class (T. 62, 63). I found this testimony lacked credibility.

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CONCLUSIONS OF LAW

The Individuals with Disability 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. West, 546 U.S. 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 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 a 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 generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that “[t}o 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, as a focus on a particular child is at the core of the IDEA. The instruction offered must be “specifically 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 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 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 level of achievement, disability, and potential for growth” §§1414(d)(1)(A0(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 IDEA also provides an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child, or the provision of FAPE, that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint.” Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir. 2008), quoting 20 U.S.C. 1415(b)(6)(B). New York has adopted the two-year period found in the IDEA, see Education Law §4404(1)(a); 8 NYCRR §200.5(j)(1)(i); See, Application of a Child with a Disability, Appeal No. 06-086. Each IDEA claim is a “fact-specific injury” to determine when the parent knew or should have known about the claim. See, K.H. v. New York City Dep’t of Educ., 2014 WL 3866430at *16 (EDNY Aug. 6, 2014). New York Education Law §4404(1)(a) establishes two limited statutory exceptions to the IDEA’s two-year statute of limitations. The first exception is where the school district falsely claims that the alleged problem that forms the basis for the Parent’s complaint has been resolved. The second exception requires evidence that the District withheld specific information that it was required to provide under the IDEA and that resulted in the parent’s unknowing waiver of right.

In the instant matter, Parent learned of her son’s disability, a Specific Learning Disorder with an impairment in reading (Dyslexia) and in written language after he was evaluated by the neuropsychologist in September 2019. It wasn’t until this time did Parent actually become aware of the injury to her son and realize that he was previously misdiagnosed by the District. See, Draper V. Atlanta Indep. Sch. Sys., 480 F.Supp.2d 1341, 1335 (N.D. Ga. 2007). However, the record is devoid of the date in which the Parent actually met with the neuropsychologist and learned of her son’s injury. The DPC was filed on 10/6/21, therefore, they should be barred by the statute of limitations for claiming a denial of FAPE for the 2016-2017 and 2017-2018 school years. The tolling exceptions are not applicable in this matter. There was proof that the Parents received the procedural safeguards notice for the years in question and the other exception in not applicable.

The burden of proof is on the District to show that the provided IEPs provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law Section 4404(1)c; see also Application of a Student with a Disability, Appeal No. 12-062. Here, the District did not meet its burden in demonstrating that they provided Student with FAPE during the 2018-2019, 2019-2020 and 2020-2021 school years. It was clearly established that the placements for Student were not appropriate for him and that he was not being provided with a meaningful education. This was a recurring issue that was not solved. Therefore, I find that the District did not provide Student with FAPE for the 2018-2019, 2019-2020 and 2020-2021 school years.

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

Here, based on the facts above, I find that the Student is entitled to compensatory services and compensatory tutoring to attempt to place the Student in the position he should have been in, if he had received the supports required as indicated in the private evaluation and based on the denial of FAPE for the last three school years its obligations under the IDEA. See, Newington, supra..

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 2018/2019, 2019/2020 and 2020/2021 school years. I further find that the Student is eligible for compensatory services and tutoring as indicated below.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby:

1). ORDERED, that the District shall fund and the Student be provided additional services in the amount of 240 hours of 1-1 multisensory tutoring, to be scheduled at the Parent’s discretion with no expiration date and shall be provided by a Provider of the Parent’s choosing at a rate of $140/hour, with invoices to be paid within 30 days of submission;

2). ORDERED, that the District shall reimburse the Parent for the cost of the neuropsychological evaluation in the amount of $2500.00.

3). ORDERED, that the District shall reimburse the Parent for the cost of private tutoring for the Student for the 2018-2019, 2019-2020 and 2020-2021 school years upon proof of invoices.

SO ORDERED:

DATED: September 15, 2022

Marisa Carbone

Impartial Hearing Officer

DEPARTMENT OF EDUCATION

Ex. Description Date Pages

1

DPC

10/06/2021

14

2

IEP 05/03/2016 15 3 IEP Attendance Page 05/03/2016

1

4

IEP

05/03/2018

16

5

IEP Attendance Page

05/03/2018

1

6

IEP

05/01/2019

13

7

IEP Attendance Page

05/01/2019

1

8

IEP

04/22/2020

13

9

IEP Attendance Page

04/22/2020

1

10

Social History Update

05/03/2016

2

11

Prior Written Notices

Various Dates

17

12

Educational Evaluation Report

04/12/2019

4

PARENT

Ex. Description Date Pages

A 10/06/21 Impartial Hearing Request 14

B 09/13/19 Neuropsychological Evaluation 18

C 02/2017 Progress Report, Redacted 8

D 02/2018 Progress Report, Redacted 6

E 02/2019 Progress Report, Redacted 6

F 02/2020 Progress Report, Redacted 4

G 02/2021 Progress Report, Redacted 5

H 01/06/20 -- 08/13/20 Receipt, Redacted 1

I

NA CV of Redacted 10 J NA CV of Redacted

3

K

06/22/22

Affidavit of Testimony of Redacted

4

L

Affidavit of Testimony of Redacted

5

M

06/29/22

Affidavit of Testimony of Redacted

5

IHO

• • DOE Motion to Dismiss 6/23/22 9 pages
• • Parent’s Opposition to MTD 7/6/22 8 pages
• • Parent’s Closing Brief 7/22/22 32 pages
• • District’s Closing Brief 7/22/22 14 pages
• • 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 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 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.