New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 225018

Student’s Name: Redacted

(hereinafter referred to as “Student”)

Date of Birth: Redacted

District:

Hearing Request by: Redacted

(hereinafter referred to as “Parent”)

Hearing Date: December 8, 2022

Actual Record Close Date: January 18, 2023

Hearing Officer: Marisa Carbone, Esq.

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

For the Student:

Redacted, Esq., Attorney

Redacted, Parent

For the Department of Education:

Redacted, District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about March 9, 2022 (P-Ex. A). In the DPC, the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2019/2020, 2020/2021, 2021/2022 school years for failure to provide an appropriate program and services for the Student (P-Ex. A)^[1]. The Parent requested relief in the form of, inter alia, an appropriate non-public school placement, related services, and compensatory services. (P-Ex. A).

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on March 23, 2022. A prehearing conference was held on May 3, 2022, to discuss the issues in the case and Parent’s request for independent educational evaluations. (See, Transcript).^[2] An Interim order was issued for the independent educational evaluations. Status conferences were held on June 30, 2022, September 8, 2022 and November 2, 2022. A hearing on the merits was held on December 8, 2022. The District failed to appear and was held in default. The Parent presented exhibits, which were admitted into the record^[3] and presented five witnesses through affidavits. The record closed on January 18, 2023. There were five extensions of the timelines.

FINDINGS OF FACT

The Student was a Redacted student who attended 10th grade at a District REDACTED school in a special class of 6-1-1 with related services in a 12 month program. The Student is diagnosed with Autism Spectrum Disorder with accompanying intellectual impairment and accompanying language impairment and a Generalized Anxiety Disorder. The Student is classified as a Student with Autism. The Student is generally non-verbal and relies on a speech generating device to communicate. He has severe impairment in communication, social skills and self-care as well as receptive, expressive and pragmatic language skills and articulation difficulties. The Student was described as distractible, impulsive, oppositional and emotionally reactive. He has a history of elopement and school absences.

The District failed to appear at the hearing and was found in default. Therefore there is no need to analyze whether they provided a FAPE to the Student during the years in question because they did not meet their burden.

The Parent wrote to the District in January 2021 requesting re-evaluations of the Student and for them to consider placing him in a residential placement. The District conducted a psychological evaluation, a psychiatric evaluation and a social history update on the Student. The Parent did not agree with these evaluations because they lacked information and did not test the Student in all areas of his suspected disability. In August 2021, the Parent wrote to the District and requested independent educational evaluations (“IEE”) of the Student but she received no response from the District. It was not until she filed her DPC in March 2022 did the Student receive the IEE pursuant to the undersigned’s Interim Order for a neuropsychological evaluation, speech-language therapy evaluation, occupational therapy evaluation, assistive technology evaluation, ABA skills assessment and a functional behavior assessment.

The neuropsychological evaluation was conducted on the Student in August, 2022. The evaluator noted that the Student “presented with severe developmental delays in early childhood and that his instructional levels in reading and math have remained at or below kindergarten level. He is severely delayed in all academic areas.” He further stated that” he has been kept in the same educational program since kindergarten despite no evidence of his making progress. There has been no meaningful progress from elementary through high school even with the addition of home-based services. He has acquired virtually no adaptive or academic skills.” The evaluator made the following recommendations: “he requires constant adult supervision to function and remain safe; he has no sense of safety awareness or danger; consistent with the recommendations of the psychiatric assessment in 2021, a residential educational/treatment program is needed at this point. He requires around -the-clock interventions from trained staff who consistently employ appropriate strategies in a program that utilizes evidence-based methods for teaching students with ASD”.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). 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 as 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 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, Forest Grove v. T.A., 129 S. Ct. 2484[2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District failed to appear and defaulted. They did not present a case and therefore failed to meet their burden. Based on my review of the documents and affidavit testimony, I find that the District did not provide the Student with FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years. Based on the evidence presented by the Parent, it is clear the District failed this Student and that the Student requires an intensive residential placement to address the Student’s unique needs.

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 its obligations under the IDEA. See, Newington, supra.

Here, based on the facts above, I find that the Student is entitled to compensatory services to attempt to place the Student in the position he should have been in, if he had received the supports required by the Student as indicated in the evaluations and based on the denial of FAPE for the 2019/2020, 2020/2021 and 2021/2022 school years.

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 2019/2020, 2020/2021 and 2021/2022 school years. I further find that the Student should be in an intensive residential program to address his needs and is eligible for compensatory services as ordered below.

ORDER

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

1). ORDERED, that the District shall hold an IEP meeting within 15 days of this order and review the IEE and develop an appropriate IEP to include the recommendations in the IEE.

2). ORDERED that the District shall fund and provide the Student with a CoughDrop application for his communication speech generating device as well as a carrying strap.

3). ORDERED that the District shall fund 40 hours of assistive technology training for the Student to be provided by a Provider of the Parent’s choosing at a reasonable market rate.

4). ORDERED that the District shall defer the student to the Central Based Support Team to locate a residential placement for him and until one is found, fund 30 hours 1-1 push-in ABA therapy by a Provider of the Parent’s choosing at a reasonable market rate.

5). ORDERED that until a residential placement is found for the Student, the District shall fund 10 hours per week of ABA services at the Student’s home from a BCBA chosen by the Parent at a reasonable market rate and 1 hour of PCAT to be provided by a Provider of the Parent’s choosing at a reasonable market rate.

6). ORDERED that the District shall conduct a school refusal assessment of the Student within 30 days of this order.

7). ORDERED, that the District shall conduct a feeding evaluation of the Student within 30 days of this order.

8). ORDERED that the District shall provide the Student with 528 hours of speech language therapy to be provided by a speech language pathologist of the Parent’s choosing at market rate;

9). ORDERED that the District shall provide the Student with 498 hours of occupational therapy to be provided by an occupational therapist of the Parent’s choosing at market rate;

10.) ORDERED that the District shall provide the Student with 414 hours of individual counseling to be provided by a therapist of the Parent’s choosing at market rate;

11.) ORDERED, that the District shall provide the Parent with 138 hours of PCAT to be provided by a specialist trained in this field of the Parent’s choosing at market rate;

12.) ORDERED, that the District shall provide the Student with 2760 hours of ABA instruction to be provided by a certified ABA therapist of the Parent’s choosing at market rate.

DATED: January 21, 2023

Marisa Carbone

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.

District Evidence List

NONE

Parent Evidence List

No. Document Date Pages

P-A Parent’s Impartial Hearing Request 03/08/22 16

DEPARTMENT EVALUATIONS AND REPORT CARDS

P-B Classroom Observation 01/03/19 2

P-C Psychological Evaluation Report 01/03/19 5

P-D Psychiatric Assessment 02/21/21 4

P-E Psychological Update 03/04/21 4

P-F Level 1 Vocational Assessment 10/03/21 14

P-G Report Cards 2019-2022 4

INDIVIDUALIZED EDUCATION PROGRAMS

P-H Individualized Education Program 01/17/19 24

P-I Individualized Education Program 01/17/20 22

P-J Amended Individualized Education Program 01/17/20 24

P-K Amended Individualized Education Program 01/17/20 25

P-L Individualized Education Program 03/25/21 24

P-M Individualized Education Program 03/25/22 31

INDEPENDENT EVALUATIONS

P-N Independent Assistive Technology Evaluation 06/28/22 12

P-O Independent Speech and Language Evaluation 06/28/22 14

P-P Independent Neuropsychological Evaluation 08/27/22 24

P-Q Independent Occupational Therapy Evaluation 09/03/22 13

P-R Independent ABA Skills Assessment 09/28/22 44

P-S Independent Functional Behavior Assessment (FBA)09/28/22 48 And Behavior Intervention Plan (BIP)

CORRESPONDENCE

P-T Prior Written Notice and School Location Letter 01/18/19 6

P-U Prior Written Notice 01/21/20 4

P-V Prior Written Notice 01/19/21 4

P-W Parent Email Requesting Re-evaluations and 01/25/21 2

Residential Placement

P-X Email from School Psychologist re: Placement 05/04/21 2

P-Y Request for Independent Evaluations 08/09/21 3

P-Z Prior Written Notice 03/29/22 4

P-AA Parent Disagreement with Prior Written Notice 04/07/22 1

RATE SHEETS

P-BB Rate Sheet for Redacted 05/05/22 2

P-CC Rate Sheet for Redacted Undated 1

RELATED SERVICE RECORDS

P-DD Student’s Related Service Encounter Attendance 2019-2022 21

Records for Occupational Therapy

P-EE Student’s Related Service Encounter Attendance 2019-2022 11

Records for Speech and Language Therapy

RESUMES

P-FF Resume of Redacted Undated 6

P-GG Resume of Redacted Undated 1

P-HH Resume of Redacted Undated 2

P-II Resume of Redacted Undated 5

AFFIDAVITS

P-JJ Affidavit of Redacted. 12/02/22 9

P-KK Affidavit of Redacted 12/03/22 10

P-LL Affidavit of Redacted 12/05/22 8

P-MM Affidavit of Redacted 12/01/22 6

P-NN Affidavit of Redacted 12/01/22 6

IHO Evidence

None

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] The list of exhibits is attached.