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Special Education Law
DECISIONParent PrevailedIHO Case No. 224686

New York City Department of Education, Impartial Hearing Decision

October 29, 2022·Jean Marie Brescia·offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No.. 07-008; Application of a Child with a Disability, Appeal No.. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT AND DECISION

Case Number: 224686

Student’s Name: REDACTED

Date of Hearing: March 9, 2022

March 28, 2022

March 30, 2022

May 9, 2022

June 9, 2022

July 20, 2022

July 28, 2022

September 13, 2022

Actual Record Close Date: October 15, 2022

Hearing Officer: Jean Marie Brescia, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

March 9, 2022 (prehearing conference)

REDACTED, Esq., on behalf of the Parent

REDACTED, Esq., on behalf of the Department

March 28, 2022

REDACTED, Esq., on behalf of the Parent

REDACTED, Parent

REDACTED, Esq., on behalf of the Department

REDACTED, Esq., on behalf of the Department

March 30, 2022

REDACTED, Esq., on behalf of the Parent

REDACTED, Parent

REDACTED, Esq., on behalf of the Department

REDACTED, Esq., on behalf of the Department

REDACTED, Director Paraprofessional Services

May 9, 2022

REDACTED, Esq., on behalf of the Parent

REDACTED, Esq., on behalf of the Department

June 9, 2022

REDACTED, Esq., on behalf of the Parent

REDACTED, Esq., on behalf of the Department

July 20, 2022

REDACTED, Esq., on behalf of the Parent

REDACTED, Esq., on behalf of the Department

July 28, 2022

REDACTED, Esq., on behalf of the Parent

REDACTED, Esq., on behalf of the Department

September 13, 2022

REDACTED, Esq., on behalf of the Parent

REDACTED, Parent

REDACTED, Director, REDACTED Services

Dr. REDACTED, Psychologist

REDACTED, Occupational Therapist

REDACTED, Esq., on behalf of the Department

On March 1, 2022, I was designated as impartial hearing officer, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f), in the matter of REDACTED. REDACTED’s Parent requested the hearing on February 23, 2022, in order to seek appropriate special education and services for REDACTED, appropriate home instruction for time periods that REDACTED is REDACTED unable to attend school, an independent educational evaluation at public expense (“IEE”), and compensatory education and services for the 2019-2020, 2020-2021 and 2021-2022 school years[1] (Parent’s Ex. A). A prehearing conference was conducted on March 9, 2022. At the request of Parent’s counsel, a hearing with respect to the IEE request was conducted on March 28 and March 30, 2022, and Interim Orders were issued on April 6 and April 10, 2022.

Between April and July, the parties reported to me on the record as to the progress of the independent neuropsychological evaluation, other evaluations, and REDACTED’s health and needed REDACTED.

On July 26, the Department requested an adjournment of the hearing date scheduled for August 19 due to the unavailability of the Department’s witnesses. On July 28, after discussing on the record (a) the Commissioner’s Regulations’ constraints on the granting of extensions of the compliance date due to witness unavailability resulting from school vacations, (b) the fact that witnesses would be testifying remotely via videoconference, (c) the Department’s pending speech evaluation of REDACTED, (d) the pending receipt of the independent neuropsychological evaluation, (e) Parent’s objections to taking Parent’s witnesses “out of order,” and (f) the current absence of an IEP for REDACTED for the start of the 2022-2023 school year, I granted the Department’s adjournment request on certain conditions, specifically that the Department must convene a meeting to develop an IEP for REDACTED, develop an IEP for REDACTED, and have that IEP in place for REDACTED by September 8, 2022. Should the Department fail to convene a meeting to develop an IEP for REDACTED, develop an IEP for REDACTED, and have that IEP in place for REDACTED by September 8, 2022, I would hold the Department in default in this proceeding. The hearing was adjourned to September 13, 2022. See Tr. 127-153; Hearing Officer’s Third Interim Order dated July 28, 2022.

On September 13, counsel for the Department reported that Department personnel had not convened an IEP meeting for REDACTED. Tr. 159-160. A meeting seemed to have been tentatively scheduled by the Department for September 15; however, as of September 13, REDACTED did not have an IEP and was not attending school. Tr. 160, 162.

On the record, the Department “concede[d] Prong I” and rested its case. Tr. 160; see also 167-168, 230.

The parties made joint applications on the record for extensions of the compliance dates. The applications were granted by written Orders of Extension dated March 28, March 30, May 9, June 9, July 20, July 28 and September 13, 2022. All but the first and last extensions were for the purposes of the completing the IEE.

The record closed on October 15, 2022, upon the hearing officer’s review of the transcript of the last hearing date and review of Parent’s extensive evidence submission, and the Actual Record Close Date is October 15, 2022.

Appended to the record are the names of the persons who appeared at the hearing and a list of the documents entered into evidence.

Findings of Fact

Introduction

  • • REDACTED is a REDACTED-year-old boy whose disability, for the purposes of the IDEA, is classified as other health impairment. Ex. A at 1; Tr. 72.
  • • REDACTED is diagnosed with REDACTED, a condition characterized by the development of REDACTED on the surfaces of his REDACTED. For REDACTED, the condition results in pain, limited range of joint movement, and other stresses on his body. Exs. A at 2, H at 1-2, 4, S, U; Ex. Y at ⁋ 11. He has undergone numerous and extensive REDACTED to remove REDACTED. Exs. A at 2; H at 1, 4-5; Tr. 73-74; Ex. CC at ⁋⁋ 3-4.
  • • Most recently, REDACTED had extensive REDACTED in spring of 2022 and additional REDACTED in August and September 2022. Ex. H at 1, 5S
  • • REDACTED has difficulties with ambulation due to the physical deformities and pain caused by the condition. Ex. A at 2; Tr. 74. He experiences “debilitating fatigue” and constant pain. Tr. 75. In addition, REDACTED on his hands make manipulating small objects and writing very difficult. Ex. H at 2; Ex. Y at ⁋ 11.
  • • At the time of the hearing, REDACTED was ambulating with a REDACTED for short distances (up to 50 feet) with adult supervision. Ex. I at 14.
  • • He also experiences REDACTED, which has progressively worsened over time. Ex. H at 5.
  • • REDACTED also has a history of speech and language delays and/or disorder since preschool. Ex. H at 2
  • • REDACTED is currently enrolled in eighth grade at the Department’s REDACTED School. Ex. A at 1, Ex. CC at ⁋ 2; Tr. 73.
  • • As a result of recent REDACTED, REDACTED is currently on “REDACTED home instruction.” Tr. 73.
  • • Educational History
  • • As a young child, REDACTED received speech therapy through the Early Intervention program. He did not continue with services through the Preschool CSE. Exs. A at 2, H-2.
  • • REDACTED attended REDACTED as of September 2013 as a kindergarten student; he repeated kindergarten at REDACTED; and he remained at REDACTED until November 2018, when he became a patient at REDACTED Children’s Hospital in REDACTED County (“REDACTED”). Exs. G at 1, H at 1, CC at ⁋⁋ 6-8.
  • • While REDACTED was an inpatient, and then an outpatient at REDACTED, he received educational services from REDACTED-REDACTED REDACTED (“REDACTED-REDACTED”). Ex. CC at ⁋⁋ 6-8
  • • The REDACTED-REDACTED convened a CSE meeting to develop an IEP for REDACTED on January 14, 2019. Ex. G.
  • • The REDACTED-REDACTED CSE determined that REDACTED was eligible for special education and recommended that REDACTED attend a 12:1:1 special education class and have access to a word processor. Ex. G at 1.
  • • The IEP notes that REDACTED needed teacher support and supervision in the classroom and that he worked well in small groups with a low student to teacher ratio. Ex. G at 2-3.
  • • On January 18, 2019, REDACTED’s REDACTED completed a Department Request for REDACTED Accommodations form. Ex. U. The doctor informed the Department that REDACTED, at that time, had “limited ambulation; can stand with help for 10-15 seconds; can take a few steps with moderate support” and explained that REDACTED experienced a “painful” REDACTED condition requiring complex REDACTED. Ex. U.
  • • REDACTED remained at REDACTED through February 2019, returning to REDACTED for the spring of 2019, and then returned to REDACTED during summer 2019 due to his REDACTED needs. Ex. H at 1; Ex. CC at ⁋⁋ 6-8.
  • • REDACTED returned to REDACTED in the fall of 2019 for REDACTED grade. Ex. H at 5, Ex. L at 1.
  • • The Department Evaluates REDACTED
  • • In November 2019, REDACTED’s mother requested that the Department evaluate REDACTED.[2] Ex. CC at ⁋ 10.
  • • Department personnel conducted a Physical Therapy School Function Evaluation in October 2019, and an Occupational Therapy Evaluation and a Psychoeducational Evaluation in November 2019. Exs. 7, 8., M.
  • • Department personnel also conducted an assistive technology evaluation of REDACTED on October 25 and November 6, 2019.[3] Ex. K.
  • • The AT evaluator concluded that REDACTED’s written work utilizing a “computer” had fewer errors, was longer, and was less physically painful for REDACTED than completing handwritten work. Ex. K at 1.
  • • The evaluator recommended that REDACTED receive AT services, specifically a portable word processer with software and a spell checker. Ex. K at 2.
  • • The Department’s CSE convened on November 20, 2019 to develop an IEP for REDACTED. Ex. F. REDACTED’s mother participated in this IEP meeting. Ex. CC at ⁋ 11.
  • • The IEP notes that REDACTED’s writing skills and math problem-solving skills were below grade level and that he needed assistance with academics from his teachers. Ex. F at 3, 4. REDACTED also demonstrated poor functional mobility, endurance, speed and lower extremity muscle strength and needed “monitoring” while navigating the classroom. Ex. F at 4-5.
  • • REDACTED’s mother reported to the CSE that REDACTED was in constant pain, was tired, and needed frequent breaks. Ex. F at 4.
  • • The CSE recommended that REDACTED attend a public school ICT class with a health/ambulation paraprofessional, receive the related service of occupational therapy, and have access to a Chromebook with word processing, voice-to-text, text reader and spell check, and co-writer software and headphones with a built-in microphone. Ex. F at 13-14.
  • • The Department did not provide REDACTED with functional AT, as recommended in the IEP. Ex. I.
  • • The CSE also recommended that REDACTED attend a Department general education public school. Ex. F at 17.
  • • Remote Home Instruction as of March 2020
  • • Since March 2020, REDACTED has participated in home instruction delivered remotely; PT was provided one time per week and OT was not provided at all. Ex. I at 2, Ex. AA at ⁋ 11.
  • • The Department did not provide REDACTED with the support he needed in order for remote instruction to be accessible for him, and he did not make progress. Ex. CC at ⁋⁋ 12-13.
  • • The 2020-2021 School Year
  • • REDACTED was enrolled at the Department’s REDACTED School for the 2020-2021 school year as a REDACTED grade student. Ex. CC at ⁋ 2. He has never attended this school in person.
  • • In August 2020, REDACTED’s mother contacted Department personnel twice to apprise them of REDACTED’s recent and upcoming REDACTED and to discuss REDACTED’s IEP services and accommodations. Ex. T at 2-3. She followed up with school personnel in early September. Ex. T at 1.
  • • During the 2020-2021 school year, REDACTED continued with remote instruction. Ex. CC at ⁋ 2. Again, remote instruction failed him: REDACTED was in and out of the hospital for REDACTED; the Department did not provide the assistive technology that REDACTED needed nor the instructional support that he needed. REDACTED did not make progress; and school personnel were not responsive to REDACTED’s mother’s requests for progress reports. Ex. CC at ⁋ 13.
  • • REDACTED’s mother attended two IEP meetings for REDACTED in November 2020. School personnel were unable to provide her with information about REDACTED and informed her that REDACTED was getting “enough” with a paraprofessional. Ex. CC at ⁋⁋ 14-15.
  • • A few months after the November meetings, REDACTED’s mother received an IEP listing a meeting date of January 17, 2021. Ex. 4 at 18. REDACTED’s mother was not invited to this meeting; and, January 17 was a Sunday. Ex. CC at ⁋ 16.
  • • The January 17, 2021 IEP for REDACTED recommended that REDACTED attend ICT classes with a “.8” paraprofessional for “orientation and mobility,” receive occupational and physical therapies, and have a Chromebook with specified software and headphones with a microphone. Ex. 4 at 13-14.
  • • This IEP also recommended that REDACTED was eligible for summer (“ESY”) services. Ex. 4 at 14. The only ESY services listed on the IEP was physical therapy, three 30-minute sessions per week individually to be delivered in a Department “Non-Specialized” school. Ex. 4 at 14-15.
  • • The IEP also mandated the REDACTED have specialized bus transportation of “transportation from the closest safe curb location to school.” Ex. 4 at 18.
  • • The 2021-2022 School Year
  • • During the 2021-2022 school year, which was REDACTED’s REDACTED grade year, REDACTED continued with REDACTED home instruction because he had significant REDACTED before school began in September and was using a REDACTED for months. Ex. CC at ⁋ 17.
  • • School personnel refused to consider any educational options for REDACTED other than REDACTED home instruction; REDACTED’s mother felt that she had no choice other than REDACTED home instruction for REDACTED. Ex. CC at ⁋ 17.
  • • On September 8, 2021, Department personnel prepared a Home Instruction Referral Form for REDACTED. Ex. S. As per the annexed REDACTED Request, REDACTED’s treating physician at REDACTED stated that “[d]ue to [REDACTED’s] diagnosis and treatment it [was] not REDACTED safe for him to be in school in person or around other students.” Ex. S at 2; see also Ex. T.
  • • School personnel would not provide REDACTED with school books or a curriculum for home instruction. Ex. CC at ⁋ 17.
  • • REDACTED did not receive appropriate home instruction and fell further behind in grade level learning. Exs. H, V, CC at ⁋⁋ 18-19.
  • • During fall and winter 2021/2022, REDACTED had difficulties with the Department-issued AT device. It was outdated and not working, and essential programs did not function. While the device was in for repair at the Department, REDACTED did not have the device to use. REDACTED’s mother and providers communicated these problems to school personnel. Ex. R; Ex. AA at ⁋ 13; Ex. CC at ⁋ 20.
  • • The Department has never provided instruction or training to REDACTED on how to use AT. Ex. AA at ⁋ 12.
  • • The Department has never provided REDACTED with appropriate AT with necessary and functioning software. Ex. CC at ⁋ 20.
  • • REDACTED’s REDACTED School (M291) fall 2021 report card shows that REDACTED was performing “below standards” in all academic areas. Ex. K.
  • • During spring 2022, REDACTED continued to have difficulties with the Department-issued AT. He was unable to access Zoom on the device; as a result, he could not access some of his remote learning. Many of the programs did not function; and programs that did function were slow. Exs. N, O, P.
  • • In addition, REDACTED needed training in utilizing aspects of the device and certain programming; such training was not provided. Exs. N, O, P.
  • • REDACTED’s mother and providers communicated these problems to school personnel. Exs. N, O, P.
  • • The Department also did not provide a scribe for REDACTED, so he was unable to take ELA exams. Exs. N, O, P.
  • • Independent Evaluations of REDACTED
  • • REDACTED’s mother sought an IEE from the Department by letter dated February 22, 2022. Ex. B. In the letter, parent requested a “comprehensive” IEE of REDACTED. Parent challenged the Department’s evaluations utilized at a January 2021 IEP meeting as “not comprehensive.” Ex. B.
  • • REDACTED’s mother requested a neuropsychological evaluation to be conducted by Dr. REDACTED at the cost of $6,500.00; occupational, physical and speech/language therapy evaluations to be conducted by REDACTED Services (“REDACTED”) at the cost of $1,450.00 per evaluation; an assistive technology evaluation to be conducted by REDACTED at a cost of $2,000.00 and a central auditory processing evaluation to be conducted by Dr. REDACTED at a cost of $2,600.00. Ex. B at 1-2.
  • • REDACTED’s mother was granted IEEs at public expense: (a) an independent neuropsychological evaluation to be conducted by Dr. REDACTED at the rate of $6,500.00; (b) an independent PT evaluation to be conducted by REDACTED at the rate of $1,450.00; and (c) an independent OT evaluation to be conducted by REDACTED at the rate of $1,450.00. IHO Interim Order dated April 10, 2022.
  • • The requests for speech, AT and CAP evaluations at public expense were denied at that time. The Department had the opportunity to conduct these evaluations upon seeking and obtaining parental consent. IHO Interim Order dated April 10, 2022. At the time, there was no evidence in the record to support a conclusion that the Department conducted any of these types of evaluations.[4]
  • • Dr. REDACTED is a licensed psychologist with a doctorate in clinical psychology. Ex. C at ⁋ 1. She specializes in “the diagnostic evaluation and psychological treatment” of children. Ex. C at ⁋ 5, Ex. Y at ⁋⁋ 1-6, 8.
  • • Dr. REDACTED conducted the independent neuropsychological evaluation of REDACTED. She met with REDACTED in May, June and July 2022 for “intense” testing sessions totaling eight hours of one-to-one direct testing; sessions occurred at his home because he was recovering from REDACTED, remotely to assess his functioning utilizing this modality, and in Dr. REDACTED’s office. Tr. 198; Ex. H, Ex. Y at ⁋⁋ 10, 12.
  • • At the time of the testing sessions. REDACTED continued to be “on home instruction,” and he was about to enter eighth grade. Ex. H at 4.
  • • On the WISC-V, REDACTED attained a full scale IQ score of 120 with a Visual Spatial composite score of 141 and Processing Speed composite score of 98. Ex. H at 11.
  • • REDACTED’s spelling and written language skills were at the REDACTED grade level. Ex. H at 19, 24.
  • • REDACTED scored at the REDACTED grade level in math problem solving. Ex. H at 15, 24.
  • • Testing of speech/language skills revealed that REDACTED experienced word retrieval issues, which impact a child’s abilities to express thoughts orally and to read fluently and with understanding. Ex. H at 19-20.
  • • REDACTED also experienced difficulties with nonliteral language, inferencing, and pragmatic language. Dr. REDACTED described REDACTED’s speech and language challenges in detail. Ex. H at 20-21; Ex. Y at ⁋⁋ 13-14.
  • • As a result of her evaluation, Dr. REDACTED concluded that REDACTED, in addition to experiencing a serious REDACTED condition, met the criteria for REDACTED. Tr. 198; Ex. H at 27.
  • • Dr. REDACTED made the following diagnoses: REDACTED; REDACTED, REDACTED; and REDACTED. Ex. H at 27; Ex. Y at ⁋⁋ 17-18.
  • • Dr. REDACTED recommended that REDACTED attend a “non-public school educational program in a school specializing in the education of children with language-based learning disorder and OHI” with “a small student to teacher ratio no greater than 12:1:1” and receive ESY services in order to prevent regression. Ex. H at 27.
  • • Additional recommendations included:
  • • REDACTED attend a program that permits him to attend school in person when his health allows and to participate remotely when his health is compromised. Ex. H at 27.
  • • REDACTED have a “properly trained paraprofessional” at school and on the bus. Ex. H at 27.
  • • REDACTED’s teachers utilize Orton-Gillingham, a researched-based multisensory approach which will address his spelling and reading processing deficits.[5]
  • • REDACTED’s teachers utilize a structured writing program.
  • • Related services of OT, PT and counseling.
  • • “[A]n individualized and intensive bank of hours” to compensate for “years of inappropriate support” and remediate his academic delays.
  • • REDACTED undergo a central auditory processing evaluation conducted by an audiologist to determine if there are audiological components to REDACTED’s language processing difficulties. Tr. 199-200.
  • • One of Dr. REDACTED’s important conclusions is that for far too long, REDACTED’s academic challenges have been attributed solely to his physical consequences of his REDACTED diagnosis; REDACTED experiences REDACTED challenges to learning, including his REDACTED that has only recently been identified. Tr. 206.
  • • Dr. REDACTED explained that REDACTED requires services to remediate his academic deficits because the Department, over the years,
  • • failed to identify and understand REDACTED’s complex presentation of disabilities and REDACTED involvement. For many years he did not even have an IEP, which makes little sense given his below grade academic skills, difficulty attending, and many areas of involvement due to his REDACTED condition. Once he received an IEP, the Department of Education failed to really consider the full effect of each of these impairments on one single child and failed to provide him the complex and changing support he required. Ex. Y at ⁋ 18 (emphasis added).
  • • Dr. REDACTED also explained that REDACTED needed appropriate home instruction when required by his REDACTED needs and that home instruction must be connected with the instruction at school and provided utilizing the appropriate AT. Ex. Y at ⁋⁋ 18-19.
  • • REDACTED Services (“REDACTED”) provides evaluations of, and educational and related services to, students. These evaluations include speech/language, occupational and physical therapy evaluations and assistive technology evaluations. Ex. E at ⁋⁋ 1, 7-8.
  • • REDACTED, a licensed physical therapist affiliated with REDACTED, conducted a physical therapy evaluation of REDACTED in July 2022. Ex. I.
  • • The PT evaluation determined that REDACTED presented with decreased bilateral upper and lower extremity strength and range of motion, poor posture, and decreased core strength, functional mobility, endurance, speed, agility, and joint and muscle flexibility. Ex. I at 4.
  • • The evaluating physical therapist recommended that REDACTED receive three 45-minute sessions per week of 1:1 physical therapy in order to “promote functional progress so that he is able to safely navigate his environment” and “to prevent any further regression in his gross motor skills.” Ex. I at 4.
  • • REDACTED, a licensed occupational therapist affiliated with REDACTED, conducted an occupational therapy evaluation of REDACTED in July 2022. Ex. J; Ex. AA at ⁋⁋ 2-4, 7; Ex. BB.
  • • Ms. REDACTED, as a result of her observations, interview, assessment and testing of REDACTED, arrived at the following conclusions (Ex. J at 13-16):
  • • REDACTED’s handwriting and fine motor skills were “well below average,” and he is not able to write with proper letter formation, size, spacing, line adherence or alignment.
  • • REDACTED has decreased hand musculature and fine motor control, as evidenced by his grasp pattern.
  • • REDACTED’s poor grasp limits his handwriting endurance and legibility, and he fatigues and experiences pain during handwriting.
  • • REDACTED experiences deficits in visual-motor and ocular-motor skills; and such skills are “essential” to reading, writing and accessing curricula.
  • • REDACTED experiences difficulties with postural control, spatial awareness and gross motor tasks that demonstrate deficits in vestibular processing, proprioceptive processing and bilateral integration.
  • • REDACTED experiences difficulties with sensory processing, including auditory processing, and regulation.
  • • REDACTED struggles with activities of daily living due to difficulties with fine motor skills.
  • • REDACTED struggles with executive functioning and organizational skills.
  • • As a result of the above deficits, delays and challenges, REDACTED needs (Ex. J at 13-16):
  • • “specialized and targeted intervention to improve hand-strengthening and fine motor control to increase handwriting form and appropriate speed for greater functional performance in the school setting;”
  • • Compensatory strategies including typing, speech-to-text technology, and other assistive technology;
  • • “specialized and targeted intervention to address his deficits in visual perception, visual processing, and visual-motor integration;”
  • • “targeted and specialized intervention to address deficits in vestibular processing, proprioceptive processing, balance, praxis/motor planning, coordination, and postural control to increase his educational access;”
  • • “specialized and targeted intervention to address deficits in sensory perception of vestibular and proprioceptive information;”
  • • Strength and conditioning exercises to improve his fine motor skills and “overall functional performance of daily tasks;
  • • “specialized and targeted intervention” to improve executive functioning and organizational skills.
  • • Ms. REDACTED recommended (among other interventions, modifications and accommodations) that REDACTED be provided with:
  • • 1:1 paraprofessional trained in REDACTED’s adaptive equipment and positioning to decrease pain and discomfort and conserve his energy;
  • • a scribe available, as needed, for writing and typing;
  • • adapted physical education;
  • • use of a REDACTED in school as needed;
  • • an elevator and accessible entrance to his school;
  • • extended time to get to and from class;
  • • take a break when he is fatigued or in discomfort;
  • • movement breaks;
  • • a comprehensive transitional/vocational evaluation;
  • • an updated and comprehensive assistive technology evaluation;
  • • ongoing training in use of assistive technology; and
  • • occupational therapy, three 45-minute sessions per week, 1:1.

Parent’s Proposed Compensatory Education and Services Plan

  • • REDACTED developed a Compensatory Service Plan (the “Proposed Plan”) for REDACTED. Ex. V. The Proposed Plan was developed by Ms. REDACTED (occupational therapy and assistive technology sections), Dr. REDACTED (physical therapy section), and Ms. REDACTED (academic remediation section). Tr. 210, 215; Ex. V at 1.
  • • In order to develop the Proposed Plan, Dr. REDACTED conducted the previously-described physical therapy evaluation of REDACTED, and Ms. REDACTED conducted the previously-described occupational therapy evaluation of REDACTED; all the contributors to the Proposed Plan reviewed IEPs; evaluations of REDACTED (including Dr. REDACTED’s neuropsychological evaluation) and other evaluative material and documentation (including Department documentation) about REDACTED and his educational history; and met with REDACTED and his mother. Then, these individuals worked collaboratively to develop recommendations and formulated the Proposed Plan, each describing in detail how they arrived at their conclusions and recommendations for REDACTED’s compensatory services. Tr. 216-220; Ex. V at 1-10, 12-13; Ex. W at ⁋⁋ 9-10.
  • • REDACTED, the executive director of REDACTED, is a certified general and special education teacher and has experience with Orton-Gillingham. Ex. W at ⁋⁋ 2, 4.
  • • Ms. REDACTED, based upon her in-depth review of REDACTED’s records, concluded that REDACTED needed a total of 552 hours of compensatory instruction in reading and math (six hours per week for 46 weeks for two years) in order “to get him back on track where he should be had he had an appropriate program....” Tr. 216-217.
  • • Ms. REDACTED recommended that the six hours per week should consist of three hours of Orton-Gillingham instruction, two hours of writing instruction, and one hour of math instruction. Ex. W at ⁋ 13.
  • • Dr. REDACTED opined that Ms. REDACTED’s recommendation of 552 hour of intensive individualized academic remediation for REDACTED was “reasonable” in light of REDACTED’s need for compensatory strategies in reading and writing and for addressing that he was about two years below grade level. Tr. 203-204.
  • • Dr. REDACTED, in her evaluation report, had recommended even more hours of remedial tutoring, a total of 800 hours. Tr. 216-217.
  • • REDACTED is available to provide compensatory intensive remedial instruction to REDACTED at the rate of $170 per hour. Ms. REDACTED provided testimony that this rate is within the market rates for such services in the New York City area. Ex. W at ⁋⁋ 15-16. The Department did not contest this hourly rate.
  • • Dr. REDACTED recommended 138 hours of compensatory physical therapy for REDACTED (1.5 hours per week for 46 weeks for two years). Ex. V at 10. Dr. REDACTED opined that it would take REDACTED at least two years to remediate the deficiencies in the Department’s program for REDACTED for the past two years which resulted in REDACTED losing skills and not developing skills in his areas of deficit in order to safely navigate his environment and attain age-appropriate skills. Ex. V at 10-11.
  • • Dr. REDACTED carefully delineated specific long-term and short-term PT goals for REDACTED to be addressed during the proposed hours of compensatory PT. Ex. V at 10-11. These goals would serve as the PT remediation plan for REDACTED. Ex. V at 11.
  • • Ms. REDACTED detailed REDACTED significant deficits in the area of OT and reviewed the “very minimal progress and inappropriate occupational therapy goals” set forth in REDACTED’s Department IEPs for prior school years. She also explained that energy conservation and compensatory techniques were identified as areas of concern but not addressed appropriately; this and other inadequate OT services did not meet REDACTED’s needs and contributed to his continued delays in functional performance. Ex. V at 12.
  • • Ms. REDACTED identified REDACTED’s severe deficits in seating and positioning techniques, energy conservation and compensatory techniques, use of adaptive equipment, fine motor and visual-motor skills, handwriting and keyboarding, coordination, attention, strength, motor planning, sensory integration and regulation, and vestibular and proprioceptive processing, all which impact his learning and school functioning. Ex. V at 13.
  • • She concluded that the severity of REDACTED’s deficits was related to the lack of appropriate services, and recommended that he needed, on a going forward basis, “immediate deficit-focused goal-oriented” OT, three 45-minute sessions per week in an individual setting. Ex. V at 13-17, 19-21, 28, 33.
  • • Ms. REDACTED concluded that REDACTED required individual OT in light of “his level of distractibility and difficulties with sensory processing and regulation.” Ex. V at 33.
  • • Ms. REDACTED also recommended compensatory OT for REDACTED in the form of 230 hours of OT (2.5 hours weekly for 46 weeks for two years) because:
  • • [a]t this frequency, it will take REDACTED 2 years to remediate not having an appropriate program and master the lost skills and make him whole again after years of the inappropriate support in his occupational therapy needs. The compensatory hours of OT coupled with the recommended frequency in REDACTED’s school program will address his needs, including energy conservation and compensatory technique issues, and help him access his curriculum. Ex. V at 33; see also Ex. AA at ⁋ 19.
  • • In addition, since REDACTED did not have an operational assistive technology device for an extended period of time and did not have individualized goals in the AT area, Ms. REDACTED recommended an AT evaluation for REDACTED Ex. V at 33-34; Ex. AA at ⁋ 21.
  • • Dr. REDACTED also opined that an assistive technology evaluation was necessary for REDACTED. Tr. 204-205.
  • • Ms. REDACTED concluded that the Department had not met REDACTED’s AT needs and recommended 46 hours of compensatory AT training for REDACTED (one hour per week for 46 weeks for one year). This number of compensatory AT training hours is necessary for REDACTED to learn to utilize his device effectively. She also recommended that REDACTED’s mother receive the same number of hours of AT training. Ex. V at 34; Ex. AA at ⁋⁋ 21-22.
  • • Dr. REDACTED also opined that a speech-language evaluation was necessary for REDACTED. Tr. 204-205.
  • • According to Ms. REDACTED’s affidavit, a speech therapist retained by REDACTED recommended that REDACTED receive 138 hours of compensatory speech/language therapy (1.5 hours per week for 46 week for two years). Ex. W at ⁋⁋ 20-21. Ms. REDACTED’s affidavit and the Proposed Plan do not provide further information about or support for this recommendation. See Exs. V, W.
  • • Dr. REDACTED opined that the “Compensatory Service Plan,” as a whole, was “reasonable” for REDACTED. Tr. 204.
  • • REDACTED is available to provide compensatory OT, AT, PT and speech therapies to REDACTED at the rate of $180 per hour. Ms. REDACTED provided testimony that this rate is within the market rates for such services in the New York City area. Ex. W at ⁋⁋ 18-19, 22-23, 26-27, 29-30. The Department did not contest these hourly rates.
  • • REDACTED charges $1,450.00 per speech evaluation and $2,000.00 for an assistive technology evaluation. Ex. D at ⁋⁋ 7-9. REDACTED asserts that these charges are within the customary rates for such evaluations in the New York City area. Ex. D at ⁋⁋ 4, 9. The Department did not challenge rates that REDACTED charges for these evaluations.
  • • Dr. REDACTED recommended for REDACTED a central auditory processing evaluation conducted by an audiologist to determine if there are audiological components to REDACTED’s language processing difficulties. Tr. 199-200.
  • • Dr. REDACTED is a licensed speech-language pathologist and audiologist. Ex. D at ⁋ 1.
  • • She is willing to conduct a comprehensive auditory processing evaluation of REDACTED for $2,600.00. She asserts that the “customary rate” in the New York City area for such evaluations is between $1,000.00 and $3,000.00. Ex. D at ⁋⁋ 5-6. The Department did not challenge the cost of Dr. REDACTED’s evaluation.

Relief Sought

Based upon the hearing request and the matters litigated at the hearing, REDACTED’s mother is seeking the following relief at this time:

(a) a compensatory educational and related services program consisting of:

(i) 138 hours of physical therapy;

(ii) 230 hours of occupational therapy;

(iii) 46 hours of AT training for REDACTED;

(iv) 46 hours of AT training in the form of parent training and counseling for REDACTED’s mother;

(v) 552 hours of intensive individualized academic remediation; [6]

(b) independent evaluations at public expense: a speech and language evaluation; an assistive technology evaluation; and a central auditory processing evaluation;

(c) a reconvening of the CSE to consider the independent evaluations and develop an appropriate program for REDACTED;

(d) an order that the Department place REDACTED in a New York State approved non-public school; and

(e) an order that the Department provide “appropriate home instruction” for REDACTED while the Department locates an appropriate placement for REDACTED.

Decision

The central purposes of the IDEA are to ensure: (1) that students with disabilities have available to them a free appropriate public education 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) that the rights of students with disabilities and their parents are protected. 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 U.S. 49, 51 (2005); Board of Education v. Rowley, 458 U.S. 176, 179-181 (1982). The first step in the inquiry is to determine whether the school district offered a free appropriate public education to the student. See, e.g., Application of a Child with a Disability, Appeal No. 07-008; Application of a Child with a Disability, Appeal No. 06-121. A free appropriate public education includes special education and related services designed to meet the student’s individual needs, provided in conformity with a written IEP. See 20 U.S.C. §1401(9); 20 U.S.C. §1414(d).

A school district offers a student a free appropriate public education when (1) it complies with the procedural requirements of the IDEA and (2) the IEP developed by the district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. REDACTED RE-1, 137 S. Ct. 988, 999 (2017); see also Rowley, 458 U.S. at 207; T.M. v. Cornwall Cent. Sch. REDACTED, 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012). 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.

The particular educational needs of a student with a disability and the services required to meet the needs must be set forth in a written IEP. Honig v. Doe, 484 U.S. 305, 311 (1988); 20 U.S.C. § 1401(9)(D); see 20 U.S.C. § 1414(d); 34 C.P.R. § 300.320. An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs. 34 C.F.R. 300.320 (a)(1); 8 N.Y.C.R.R. 200.4(d)(2). The CSE then must establish annual goals related to the identified needs of the student and provide for the use of appropriate special education services in the IEP. 8 N.Y.C.R.R. 200.4(d)(2)(iii), (v). The school district must then implement the IEP. 8 N.Y.C.R.R. 200.4(e)(1), (3).

A hearing officer may determine that a school district denied a student a FAPE based upon the district’s procedural errors in the development of the IEP, deficiencies in the substance of the educational program set forth in the IEP, or both. See L.O. v. New York City Dep’t of Educ., 822 F.3d, 95, 109 (2d Cir. 2016); see also 20 U.S.C. § 1415(f)(3)(E)(i); 8 N.Y.C.R.R. § 200.5(j)(5)(v). In New York, the school district bears the burden of proof in an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. N.Y. Educ. Law § 4404(1)(c); see R.E., 694 F.3d at 184-85.

In this case, the Department, on the record and with respect to the provision of FAPE to REDACTED, represented that it “concede[d] Prong I” and rested its case. See Tr. 160; see also 167-168, 230.[7] Since the Department failed to avail itself of its opportunities to (a) offer testimony and documentary evidence to explain how its offered programs for REDACTED were “reasonably calculated” to permit him to make progress given his unique circumstances, (b) contest the allegations that it failed to develop appropriate IEPs for REDACTED and implement educational and related services for REDACTED, and (c) dispute REDACTED’s Parent’s requests for compensatory education, I find that the Department failed to offer and provide REDACTED with a FAPE for the time period from March 2020 through the end of the 2021-2022 school year. As a result, REDACTED is entitled to compensatory education and services.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); Application of the New York City Department of Education, Appeal No. 11-004. Compensatory educational relief may be awarded to a student with a disability who remains eligible for services under the IDEA. Application of the New York City Department of Education, Appeal No. 11-132. Here in the Second Circuit, compensatory educational relief in the form of supplemental special education or related services has been awarded to such students if they have been denied a free appropriate public education. P. v. Newington Board of Education, 546 F. 3d 111, 123 (2d Cir. 2008) (IDEA “allows a hearing officer to fashion an appropriate remedy” and “compensatory education is an available option... to make up for” a denial of a free appropriate public education”); see also Application of a Student with a Disability, Appeal No. 19-026 at pp. 18-19. Compensatory “additional services” have been awarded to students who remain eligible to attend school and have been denied appropriate services, “if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19. These are precisely the circumstances in the instant proceeding.

In determining the proper award of compensatory education, courts generally seek to craft an award of educational services that would serve to bring the child to the place he would have been but for the school district’s failure to provide her with a FAPE. Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). Equitable factors are relevant in determining an award of compensatory education. See, e.g., J.G. v. Kiryas Joel Union Free Sch. REDACTED, 777 F. Supp. 2d, 606, 643 (S.D.N.Y. 2011) (denying compensatory education in part because parents failed to respond adequately to the District’s offer of services).

Education Services The Department of Education does not contest that it deprived REDACTED of a free appropriate public education for the time period from March 2020 through the end of the 2021-2022 school year. The preponderance of the evidence presented by REDACTED’s mother establishes that a proper award to compensate REDACTED for the lack of educational services he experienced from March 2020 through the end of the 2021-2022 school year consists of the educational services outlined in the Proposed Plan and requested by REDACTED’s mother.[8] The recommendation of 552 hours of intensive remedial instruction was based upon in-depth evaluation of REDACTED, a review of his educational records, and Dr. REDACTED’s and Ms. REDACTED’s experience in the fields of psychology and education. I find their testimony credible, and I find the recommendation for 552 hours of intensive remedial instruction set forth in the Proposed Plan supported by the materials and analyses referenced in the Proposed Plan. In addition, the recommendation of 552 hours of such instruction was uncontroverted by the Department.

Considering that REDACTED lost over two years of education, and the tremendous number of hours of teaching and learning that he lost, and the fact that when he was provided with instruction, he often could not access or participate from that instruction because the Department failed to provide him with functioning and up-to-date AT, 552 hours is actually a modest amount of compensatory educational services to bring REDACTED to the place he would be educationally if the Department had provided his with a FAPE for the past two years..

It is also important to be cognizant of the difficulties experienced by students and educators during the COVID-19 pandemic and to note that compensatory educational services are appropriate when the COVID-19 pandemic was a factor in a student experiencing a deprivation of educational services. See New York State Education Department, Guidance: Addressing the Impact of Lost instructional Time Using COVID-19 Response Funding (November 2021). To the extent that REDACTED was unable to access his education as a result of remote learning during the COVID-19 pandemic, it is appropriate that compensatory services be provided to him to address lost instructional time and learning opportunities. See New York State Education Department, Guidance: Addressing the Impact of Lost Instructional Time Using COVID-19 Response Funding, November 2021 at pp. 7-8 (and citations therein). Collectively, the Department’s failures and the COVID-19 pandemic deprived REDACTED of the opportunity to make meaningful progress such that a compensatory educational services award, as recommended in the Proposed Plan, is appropriate for REDACTED.

Related Services The record demonstrates that REDACTED was deprived of the related services of occupational and physical therapies, and AT support and training. As stated above, the purpose of a compensatory educational services award is to remedy a denial of a free appropriate public education, and such an award “should aim to place the student in the position she would have been in had the district complied with its obligations.” Application of the New York City Department of Education, Appeal No. 11-132 at p. 19 (internal citations omitted).

1. Occupational Therapy

Based upon the detailed and comprehensive nature of Ms. REDACTED’s occupational therapy evaluation and her occupational therapy sections of the Proposed Plan, and Ms. REDACTED’s testimony, which I find credible and which I credit, I find that the Proposed Plan’s recommendation of 230 hours of occupational therapy to be appropriate. Of particular import is Ms. REDACTED’s detailing of the Department’s inadequate and inappropriate occupational therapy goals in its IEPs for REDACTED, the minimal progress REDACTED has made in occupational therapy, REDACTED’s need to learn strategies to conserve his energy, and REDACTED’s significant challenges with, among other OT-related skills, keyboarding, coordination, strength, attention, motor planning and sensory integration and regulation. See paragraphs 77-79 and 90-94 above.

2. Physical Therapy

Based upon the evaluation prepared by Dr. REDACTED, and the detailed physical therapy sections of the Proposed Plan prepared by Dr. REDACTED, I find that the Proposed Plan’s recommendation of 138 hours of physical therapy to be reasonable. See paragraphs 74-75 and 88-89 above. Particularly compelling are Dr. REDACTED’s observations that REDACTED lost skills and failed to develop needed skills in order to safely navigate his environment.

3. Assistive Technology

Based upon Ms. REDACTED’s review of the Department’s history of AT failures (especially the Department’s failure to provide REDACTED with any training to learn to utilize necessary AT), there is sufficient information in the record concerning REDACTED’s needs in the areas of assistive technology to consider and grant the request for 46 hours of compensatory assistive technology training. See paragraphs 28, 31, 34, 45-47, 49-51, 95, 97 above.

As to REDACTED’s mother’s request for AT training in the form of parent training, the information in the record does not support the full 46 hours of compensatory services. But REDACTED’s mother does need to understand how REDACTED’s AT works, and how to assist REDACTED in “real time” when he is participating in remote instruction and completing assignments; and I will grant ten hours of AT training for REDACTED’s mother.

4. Speech Therapy

Ms. REDACTED’s affidavit refers to a recommendation for compensatory speech therapy made by a speech therapist associated with REDACTED. However, this recommendation is not substantiated; and, at this time, there is not a basis upon which I could quantify and grant an award of compensatory speech therapy. However, for the reasons set forth below under “Equitable Factors,” I grant the request for an independent speech and language evaluation at public expense at this time, based upon the record before me as of the end of the hearing on the merits. And as explained below, the record did not support a finding that a speech and language therapy evaluation at public expense was appropriate based upon the evidence presented at the hearings on the IEE REDACTED[9]

Equitable Factors

Equitable factors support, overwhelmingly, REDACTED’s mother’s requests for compensatory education and services for REDACTED. REDACTED’s mother communicated with Department personnel about her concerns, kept the Department fully apprised of REDACTED’s REDACTED condition and REDACTED, tried to make remote instruction work for REDACTED but was stymied by the Department’s failures to repair and update REDACTED’s AT, and attended all IEP meetings to which she was invited. There is nothing that she did to impede the Department in offering or providing a FAPE to REDACTED; in fact, the very opposite is true.

Equities also come into play as the Department’s failures to conduct speech, AT and central auditory processing evaluations of REDACTED. In the context of the IEE hearings, the Department insisted (correctly) that, under Trumbull, it had the right, at the time of the hearings on REDACTED’s mother’s IEE request, to conduct these evaluations and deprive REDACTED’s mother of access to these evaluations at public expense. There is no indication in the record that the Department conducted and completed these evaluations.

On the other hand, the record, after the completion of the hearing on the merits, now supports a conclusion that a “comprehensive” evaluation of REDACTED must include these evaluations (see paragraphs 7, 10, 63, 64, 68, 79, 97, 98 and 103 above). Particularly enlightening and compelling on this point is Dr. REDACTED’s detailed and comprehensive neuropsychological evaluation.

It is now clear from the record, after the completion of the entire hearing, that REDACTED has not been “assessed in all areas related to the suspected disability, including, where appropriate, health, vision, hearing, social and emotional status, general intelligence, academic performance, vocational skills, communicative status and motor abilities” and that he has not received an evaluation “sufficiently comprehensive to identify all of [his] special education needs, whether or not commonly linked to the disability category in which [he] has been identified.” See 8 N.Y.C.R.R. § 200.4(b)(6)(vii) & (ix); Application of a Student with a Disability, Appeal No. 13-215 at pp. 16-17. Most specifically, as Dr. REDACTED explained in detail in her testimony and in her evaluation, REDACTED’s speech and language (and other) needs were not recognized by the Department because it was focused on his REDACTED diagnosis and ignored REDACTED’s learning needs other than those relating to his REDACTED condition. See paragraphs 69-70 above.

As the Second Circuit makes clear in Trumbull, a school district’s evaluation of a student consists of the collection of assessments that should constitute a “comprehensive” evaluation of that student “that follows the mandatory procedures outlined in Section 1414 of the IDEA, including assessing the child in all areas of [the student’s] disability.” 975 F.3d at 163 (emphasis in original). The current record, as it stands at the conclusion of the hearing, establishes that the constellation of necessary assessments for REDACTED, in order to be “comprehensive” and compliant with the IDEA, must include speech, AT and central auditory processing evaluations.

Since there is no evidence in the record that the Department availed itself of the opportunity, for which it fought, to conduct speech, AT and CAP evaluations of REDACTED, and since the record demonstrates that such evaluations are necessary components of a “comprehensive” evaluation, I grant REDACTED’s mother’s request for these evaluations at public expense based upon the record as it stands at the completion of the hearing, the Second Circuit’s holdings in Trumbull, and my equitable authority as a hearing officer.

Other Issues Relating to Relief With respect to the requests in the hearing demand for “appropriate home instruction” and placement in a New York State approved non-public school: at this time, these claims for relief would relate to the 2022-2023 school year. The 2022-2023 school year is not before me in this case because the hearing demand encompasses the 2019-2020, 2020-2021 and 2021-2022 school years. The requests for home instruction and a non-public school placement are distinguished from the orders that the Department provide compensatory education and services for REDACTED and for the CSE to reconvene to consider evaluations. The compensatory education and services award relates to deprivations that occurred during the three years encompassed in the hearing demand. Similarly, the orders for the evaluations relate to prior school years during which these evaluations should have been conducted. With respect to the orders that the CSE reconvene to consider the evaluations ordered in connection with this case, the Commissioner’s Regulations require that the CSE convene to consider completed IEEs. 8 N.Y.C.R.R. § 200.5(g)(1)(vi)(a). The Department is ordered to consider the IEEs that were completed in the context of this case and move forward with recommendations for REDACTED, rather than orders from a hearing officer prescribing specific (non-compensatory) programming and placement for REDACTED for the 2022-2023 school year, which would be outside the scope of the hearing demand.

Therefore, for all the above reasons, it is hereby ORDERED that:

1. The Department of Education shall fund the following compensatory educational and related services for REDACTED:

a. 552 hours of intensive remedial instruction, provided by REDACTED Services, or a comparable provider selected by REDACTED’s parent, at the rate of $170.00 per hour. b. 230 hours of occupational therapy, provided by REDACTED Services, or a comparable provider selected by REDACTED’s parent, at the rate of $180.00 per hour. c. 138 hours of physical therapy, provided by REDACTED Services, or a comparable provider selected by REDACTED’s parent, at the rate of $180.00 per hour. d. 46 hours of assistive technology training, provided by REDACTED Services, or a comparable provider selected by REDACTED’s parent, at the rate of $180.00 per hour. e. 10 hours of assistive technology training, provided by REDACTED Services, or a comparable provider selected by REDACTED’s parent, to REDACTED’s mother as parent training and counseling at the rate of $180.00 per hour. f. The hours of the above compensatory instruction and related services must be utilized within three years from the date of this decision. Any hours remaining after three years from the date of this decision shall expire and shall not be funded by the Department. g. The request for compensatory speech therapy is denied.

2. The Department shall fund the following independent evaluations for REDACTED: a speech and language evaluation conducted by REDACTED Services, or a comparable provider selected by REDACTED’s parent, at the rate of $1,450.00; an assistive technology evaluation conducted by REDACTED Services, or a comparable provider selected by REDACTED’s parent, at the rate of $2,000.00; and a central auditory processing evaluation conducted by Dr. REDACTED, or a comparable provider selected by REDACTED’s parent, at the rate of $2,600.00.

3. If it has not already done so, the Department shall, forthwith, convene a meeting to consider the independent evaluations conducted as of the date of this decision and develop an IEP for REDACTED.

4. The Department shall, upon receipt of the above-referenced independent speech and language evaluation, assistive technology evaluation, and central auditory processing evaluation, reconvene to consider those evaluations and update REDACTED’s IEP accordingly.

Dated: October 29, 2022

______________________________

JEAN MARIE BRESCIA, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the 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.

DOCUMENTATION ENTERED INTO THE RECORD

Department of Education Exhibits

#

Date

Document

Pages

3/8/22

Prior Written Notice (Notice of Recommendation)

3

3/9/22

Letter to Parent Re: Obtaining Neurological Assessment

6

3/18/22

Page from Events Log from SESIS

1

1/17/21

IEP

21

11/30/20

OT Clinical Guide

1

October 2020

PT Clinical Guide

2

11/5/19

Psychoeducational Evaluation Report

5

10/2/19

Physical Therapy School Function Evaluation

7

Parent’s Exhibits

Exhibit Number

Number Exhibit Date of Pages

A Demand for Due Process Hearing 02/22/22 14

B Request for Independent Educational Evaluations 02/22/22 2

C Affidavit of REDACTED, Ph.D. 03/19/22 2

D Affidavit of REDACTED, Ph.D. Ed.D. (Hon.), CCC-SP/A03/15/22 2

E Affidavit of REDACTED, Executive Director of REDACTED 03/18/22 2

INDIVIDUALIZED EDUCATION PROGRAM

F IEP 11/20/19 19

G IEP 01/14/19 8

EVALUATIONS AND ASSESSMENTS

H Neuropsychological 08/02/22 29

I Occupational Therapy Evaluation 07/18/22 20

J Physical Therapy Evaluation 07/07/22 6

K Report Card 2021-2022 Marking Period 1 01/27/22 1

L NYC DOE Assistive Technology Evaluation 11/19/19 2

M NYC DOE OT Evaluation of Function and Participation 11/07/19 8

COMMUNICATION WITH THE DOE

N Communication between Parent and School 04/05/22 1

O Communication between School, Home Instruction, 03/28/22 2 and Parent

P Communication between School, Home 03/22, 24, & 25/22 2 Instruction, and Parent

Q IEP Summary in MyStudent 02/01/22 3

R Communication between Parent and School Multi dates 4

S Home Instruction Referral form 09/08/21 3

T Communication between Parent and School Multi dates 6

U Request for REDACTED Accommodations 01/08/19 1

ADDITIONAL DOCUMENTS

V Compensatory Service Plan 08/05/22 38

W Affidavit of REDACTED 09/06/22 12

X Resume of REDACTED Undated 2

Y Affidavit of Dr. REDACTED 08/31/22 9

Z Curriculum Vitae of Dr. REDACTED Undated 2

AA Affidavit of REDACTED 09/06/22 13

BB Resume of REDACTED Undated 4

CC Affidavit of Parent 09/06/22 9

IHO Exhibits

I Parent’s Memo of Law 04/07/22 8

II Department’s Memo of Law via Email 04/07/22 7

Footnotes

[1] The Department did not assert an affirmative defense of statute of limitations in this proceeding. In any event, the focus of the evidence in this case was on the time period from March 2020, and the determinations and rulings herein relate to the time period commencing March 2020, a time period properly with the limitations period.

[2] There is no indication in the record that the Department considered the REDACTED-REDACTED IEP when REDACTED returned to REDACTED, or prepared a Comparable Services Plan for REDACTED while it undertook its own evaluation of REDACTED and then convened an IEP meeting to consider REDACTED’s continued eligibility for special education and, if eligible, develop an IEP for REDACTED. The Department apparently waited for REDACTED’s mother to request a Department evaluation of REDACTED.

[3] During the March 28 and March 30 hearings with respect to REDACTED’s mother’s request for an IEE, and in the briefing subsequent to these hearing dates, the Department asserted that it had never conducted an assistive technology evaluation of REDACTED and argued that, pursuant to D.S. v. Trumbull Board of Education, 975 F.3d 152, 162-163 (2d Cir. 2020), that since there was no Department AT evaluation of REDACTED, REDACTED’s parent’s right to an IEE could not be “triggered.” At the hearing on the merits, REDACTED’s parent produced the Department’s 2019 AT evaluation, demonstrating that the Department had been incorrect as to the facts.

[4] See footnote 3 above.

[5] Orton-Gillingham is an approach to teaching reading that targets students’ deficits in reading, writing, spelling and grammar. It is an effective approach for students, such as REDACTED, with REDACTED. Tr. 216, 221.

[6] The hearing demand (Ex. A at 13) also sought compensatory “counseling/social skills training” for REDACTED. Such a claim was not litigated at the hearing, and I deem this claim to be abandoned.

[7] The Department did submit documents in evidence at the hearing concerning the IEE. These documents were considered in the determinations made with respect to the interim orders; these documents were also considered with respect to the issues considered and determined in this Findings of Fact and Decision.

[8] This analysis does not shift the burden of proof to REDACTED’s Parent. Rather, the analysis considers the evidence in the record, which was provided by REDACTED’s Parent.

[9] That determination did not involve “burden shifting” to REDACTED’s mother; the burden as to the IEEs was placed firmly upon the Department. See Interim Orders. However, a hearing officer must work with something (evidence in the record) and not nothing. At the time of the IEE hearings, there was nothing to lead me to believe that assessment of speech and language issues should be a component of a “comprehensive evaluation” of REDACTED under the Second Circuit’s analysis and holdings in Trumbull, a case which complicated, rather than simplified, the terrain of IEEs.