New York City Department of Education, Impartial Hearing Decision

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 12 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Interpreter

For the Department of Education:

NONE

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer ("IHO") on Parent's Due Process Complaint ("DPC") filed on or about February 24, 2022. (P Exhibit A.) ^[1]. The DPC alleges that the DOE failed to provide the student FAPE for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years. I was appointed IHO on May 20, 2022. At the Status Conference held on April 19, 2023, the parent's representative requested a hearing on the merits.

A hearing was held on July 12, 2023. It was a closed hearing. The Parent was represented by counsel and there was an Interpreter for translation. The DOE was not represented. Parent entered into evidence Exhibit A through DD. The DOE did not submit any evidence.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, "IDEA"), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

BACKGROUND

Student is a [REDACTED] year old female classified as having Autism. Neither the Student's diagnosis, classification nor eligibility for special educational services are in dispute nor are they being challenged.

Parent filed a DPC on February 24, 2022 alleging that the DOE denied Student a Free Appropriate Public Education ("FAPE") for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years. IEP meetings were held on June 4, 2018, April 15, 2019, April 18, 2019 January 24, 2022. At a hearing on October 25, 2022, parent sought an Interim Order seeking IEE's for the student. The Interim Order was granted ordering the DOE to fund IEE's for Neuropsychology, Psychology, Speech and Language, Occupational Therapy, Assistive Technology and Physical Therapy evaluations for the student. P. Ex . Y. The evaluations were completed and now Parent is seeking compensatory education and related services. The IHO requested that the Parent address the issue of the statute of limitation regarding school years 2018-2019 and 2019-2020. The Parent filed a closing brief in support of the relief requested and establishing why the statute of limitation is not applicable.

ISSUES

The issues presented are whether the DPC is time barred for school years 2018-2019 and 2019-2020 and whether the DOE denied the student FAPE.

FINDINGS OF FACT

The student is classified as having Autism. The DPC was filed on February 24, 2022. The DOE did not respond to the DPC and did not raise an affirmative defense of the statute of limitation within the 10 days after the DPC was filed. The DOE held IEP meetings on June 4, 2018, April 15, 2019, April 18, 2019 January 24, 2022. Both the student and Parent are bilingual Spanish speakers. The DOE did not provide the Parent with translation services at any of the IEP meetings. Parent sought and obtained an Interim Order granting IEE's on behalf of the student. The DOE has not actively participated in this matter, it did not make an appearance in the past three status conferences and did not appear for the hearing. The DOE has essentially defaulted in this case.

CONCLUSIONS OF LAW

A central tenet of the Individuals with Disabilities Education Act (IDEA) is to ensure that students with disabilities have available to them a free appropriate public education (FAPE). 20 U.S.C. § 1400(d)(1)(A); see Schaffer v. Weast, 126 S. Ct. 528 (2005); Bd. of Educ. v. Rowley, 458 U.S.176 (1982); Frank G. v. Bd. of Educ., 459 F.3d 356 (2d Cir. 2006). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22. The student's recommended program must also be provided in the least restrictive environment (LRE). 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2); 8 NYCRR 200.6(a)(1).

A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is "reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances" Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017).

Compensatory education is an appropriate remedy when, as here, a student does not receive a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111, 122 (2d Cir.2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed. Appx. 411 (2nd Cir. 2010) (citing Burr v. Ambach, 863 F.2d 1071, 1078 (2d Cir.1988)); Parent of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir.1994); Reid ex rel. Reid v. District of Columbia, 401 F.3d 516 (C.A.D.C.2005); Application of the Dep't of Educ., Appeal No. 12-135; Application of the Dep't of Educ., Appeal No. 11-132. Further, students denied pendency are entitled to make-up services. Student X v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. October 30, 2008).

Generally, School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). In the instant case, the parent is compensatory education and related services for the student. As such, the DOE bears the burden of proof, persuasion and production on all matters of dispute.

ANALYSIS

The issue to be addressed is whether the DOE denied student a FAPE for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years. A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP, which is reasonably calculated to enable the student to receive educational benefit. See Bd. of Educ. v. Rowley, 458 U.S.176 (1982); 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17; see 20 U.S.C. § 1414(d); 34 C.F.R. § 300.22.

The DOE did not appear at the hearing which is tantamount to conceding that they cannot meet their burden to establish that the student was provided with FAPE. Even though the CSE conducted 3 IEP meetings, the DOE was not able to provide the appropriate services for the students. This is evident in the results of the evaluations conducted on the student. The Neurological Evaluation details the numerous issues the student had including behavioral issues that were not addressed by the DOE and the student did not have a BIP. See P Ex Q. The student struggled with her speech. The evaluator recommended Speech Therapy for the student in addition to compensatory services because the student needed to "catch up". See P. Ex U. The Occupational Therapy evaluation recommended OT services and compensatory services for the student because the student did not have sufficient OT services, and her IEP did not address her areas of need. See P. Ex. V. The Assistive Technology evaluation recommended AAC Equipment for the student to aid the student with expressive and receptive language skills. The Evaluator also recommended that the student receive AT Equipment for access to her curriculum. See P. Ex W. The Physical Therapy evaluator recommends both weekly sessions and compensatory sessions to provide the student with consistent access to therapeutic intervention. See. P. Ex. X.

The evidence establishes that the DOE denied FAPE to the student for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years.

ORDER

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

1. The DOE shall provide compensatory ABA services for the student for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years totaling 6,440 hours;

2. The DOE shall provide compensatory Occupational Therapy services for the student for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years totaling 276 hours to be administered 2 hours per week for 3 years;

3. The DOE shall provide compensatory Physical Therapy services for the student for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years totaling 2,760 hours to be administered two times per week for 30 minutes for 1 year;

4. The DOE shall provide compensatory Speech Language Therapy services for the student for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years totaling 184 hours to be administered 2 hours per week for 2 years;

5. The DOE shall provide compensatory Tutoring services using ABA methodologies for the student for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years totaling 5,520 hours to be administered 1time per week;

6. The DOE is ordered to provide the Student an iPad or computer device with communication aides including ABA.

7. The DOE shall continue to provide all the related services recommended on the student's IEPs.

SO ORDERED.

DATED: August 18, 2023

Rodney Austin

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] Exhibits shall be referred to as follows: "P" for Parents' Exhibit; "D" for District's or Department's Exhibits; and "IHO" for Impartial Hearing Officer's Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.