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CASE NUMBER: 571098 - NYC: 225220
FINDINGS OF FACT AND DECISION
Student's Name: [REDACTED] (hereinafter referred to as "Student")
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Request by: [REDACTED] (hereinafter referred to as "Parent")
Hearing Dates: 3-10-22
Actual Record Close Date: 6-26-23
Hearing Officer: Steven P. Forbes
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 1, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
ISSUES
This matter comes before the undersigned Impartial Hearing Officer ("IHO")
through the Parent's Due Process Complaint ("DPC") filed on or about March 10, 2022. In the DPC the Parent asserted that the District failed to provide a free appropriate public education ("FAPE") during the 2019-2020 and/or the 2020-2021 school years by virtue of the District's alleged failure to implement the last agreed upon IEP dated May 28, 2020.[1] Essentially, the Parent claimed that by virtue of the school closures, the Student was deprived of certain services and/or in-person services and, as a result, suffered significant regression.
The Parent requested relief in the form of compensatory services. The Parent also requested a variety of IEEs to determine the need for compensatory services. This latter request was founded on the District's purported failure to provide a FAPE and the Parent's claim that the Parent "disagrees with the Student's prior evaluations, both at the time of the evaluation as well as currently, because they did not accurately reflect the Student's needs at the time nor do they accurately reflect the impact of the COVID-19 school closures and unilateral modification of IEP program and services have had on the Student (whose disability classification is Other Health Impairment) and the magnitude of regression that has resulted." Beyond this blanket statement, the DPC does not identify which specific prior evaluation(s) the Parent disagreed with or why or how that disagreement was conveyed, if at all, to the District. Adding still more confusion to this claim is the fact that the Parent characterized the May 28, 2020 IEP (which was ostensibly based upon those evaluations) as the last agreed upon program.
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed to the above matter on June 2, 2022. Not long after the filing of the DPC, the District filed a motion to dismiss the DPC as well as a sufficiency challenge. Parent submitted opposition and argument on the District's applications were heard on August 24, 2022. Despite the threadbare allegations set forth in the DPC, the undersigned denied the motion to dismiss and the sufficiency challenge to give the Parent an opportunity to further develop the record.
The hearing regarding the Parent's request for compensatory education was held on December 7, 2022, April 21, 2023, and June 1, 2023. [2]
The District presented eighteen exhibits and two witnesses, [REDACTED] [REDACTED], Speech and Language Pathologist, and [REDACTED], Occupational Therapist.[3] The Parent presented six exhibits and two witnesses, [REDACTED] [REDACTED], Speech and Language Pathologist, and the Parent. The record closed on June 26, 2023. There were ten extensions of the compliance date. At the conclusion of the hearing, the Parent requested compensatory services. The District opposed the Parent's application.
FINDINGS OF FACT AND 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.
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 Dept. 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 Dept. 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.
In the instant matter, the District presented two witnesses who both worked with the Student and who testified regarding the services the Student received. Ms. [REDACTED], the Student's SLT provider, also testified that the Parent declined remote services and placed the Student in a community school, despite the recommendation that the Student be placed in a DOE Specialized school. In any case, according to Ms. [REDACTED], the Student missed approximately 64 SLT sessions as a result of the school closures. The Student began receiving his full compliment of SLT sessions in January 2021 when full time in-person classes resumed. Prior to that, from September 2020 through December 2020, the Student only received SLT when he was present in school which, at that time, was only on an intermittent basis. Make up sessions were offered to the Parent which were scheduled to occur during the summer of 2021.
Ms. [REDACTED] also testified that she had worked with the Student during the 2019-2020 school year but had no contact with the Student between March 2020 and September 2020 when partial in-person services resumed. Upon resuming services with the Student, Ms. [REDACTED] was not able to recall whether the Student demonstrated any regression which she attributed to the fact that the Student had extremely limited skills.
The District's other witness, [REDACTED], was the occupational therapist that worked with the Student. She too worked with the Student through the 2019-2020 school year and also indicated that the Parent declined remote services. During the 2020-2021 school year, the Student reportedly made progress. In addition, while the Student missed a number of sessions, the Parent was offered make up sessions which were scheduled to occur in the summer of 2021.
It should be noted, as the District referenced repeatedly both throughout the hearing and in its motion to dismiss the DPC, that the failure of the District was not, as the Parent alleges, a unilateral decision. Rather, the District was directed, by order of the State, to close all schools in response to the pandemic. Under these circumstances, it is the District that is "authorized to decide how (and where) the Student's pendency services are to be provided" and not the parent. Ventura de Paulino v. New York City Dept. of Education, 959 F.3d 519 (2nd Cir. 2020).
In that vein, the Parent, who also testified in this matter, did not deny the District's claim that the Student was offered make up services in both SLT and OT. Moreover, the Parent did not deny that the Student was offered remote services. However, she simply indicated that she did not believe that those services were appropriate for the Student. Unfortunately, as the de Paulino case makes clear, that is not an election of remedies the Parent is entitled to make where the Parent is seeking the District to fund the cost of those related services.
The Parent further offered her opinion that the Student suffered regression. Notably, the Parent did not elaborate on how the Student suffered regression. Certainly, as the Student's parent, it is assumed that she based her opinion on her observations of the Student and her familiarity with him. Nonetheless, the Parent's lay opinions were hardly sufficient to establish that the Student had suffered academic, or other, regression entitling the Student to compensatory education or services. F.R.E. Rule 701. The Parent presented no other evidence whatsoever as to the issue of the Student's alleged regression.
In addition, while the Parent's affidavit contains claims seeking compensatory physical therapy and occupational therapy, there was absolutely no testimony or evidence presented by a physical therapist or occupational therapist to establish either that compensatory services in those areas were needed or, for that matter, to substantiate the Parent's claim that she privately retained and paid for the Student to receive those services.[4] However, even taking the Parent's affidavit at face value that she did, in fact, pay for those services, the Parent was not authorized to make a unilateral determination as to how (and where) those services were to be administered.
As to the Parent's only other witness, [REDACTED], the Student's privately retained SLT provider, her testimony fell far short of demonstrating that the Student is either in need of or entitled to compensatory speech and language services. It might even be said that Ms. [REDACTED] offered nothing at all on either subject. Specifically, Ms. [REDACTED]'s testimony reflected that she began working with the Student in July 2020. She did not indicate that she reviewed any documents or had any understanding as to how the Student was performing prior to that. She therefore had no clinical history with the Student to render an opinion, one way or the other, as to whether the Student suffered regression as a result of the deprivation of in-person services. During the time that Ms. [REDACTED] was working with the Student, she indicated that he made progress and that he needed to continue with SLT. Neither issue was in dispute or particularly relevant to the issues presented by this case.
In short, Parent in no way whatsoever demonstrated either a need for or an entitlement to compensatory services.
As to Parent's claim that she should be reimbursed for the amounts she spent on special and language therapy and/or occupational therapy, these claims must be denied as well to the extent that, as stated, the Parent does not have the luxury of determining the manner in which services can be provided and then seeking funding from the District.
As a final note, the equities in this matter overwhelmingly favor the District. Contrary to the Parent's suggestion, the District did not unilaterally modify the Student's program. The District was given no choice in the matter by virtue of the closures of the school resulting from the pandemic. Moreover, the District clearly made good faith efforts to remedy the situation by offering remote services, offering make up sessions over the summer and by continuing to provide in person services as soon as the students were permitted to return to the classroom. It is hard to know what else the District could have possibly done under these circumstances.
On the other hand, although the Student was recommended to attend a specialized school, the Parent unilaterally determined that the Student should attend a community school. One is left wondering, since it was not addressed by either party during the hearing, what role, if any, this choice had on the Student. The Parent was then offered remote services and declined. While it very well may be that those services were an inadequate substitute for in person services, there was no testimony from any witness that the Student would not have received any benefit from such services. As a result, the Parent's refusal to engage in those services seems both arbitrary and counterintuitive and may very well have contributed, as much as anything, to whatever "regression" she perceived that the Student had suffered.
Finally, as to Parent's request for IEEs, the Parent has failed to establish that she disagreed with a specific evaluation conducted by the District. The Parent's blanket statement of disagreement in the DPC as to all evaluations both at the time they were conducted and currently is utterly meaningless. Such a "disagreement" puts the District on notice of absolutely nothing. Moreover, it is nearly paradoxical that the Parent claims to disagree with evaluations that formed the basis of the May 2020 IEP that the Parent refers to as the last agreed upon program.
DECISION
Based on a review of the record and the details mentioned above, I find that the District did, in fact, provide the Student with a FAPE for the 2019-2020 and 2020-2021 school years.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered that the Parent's DPC is dismissed in its entirety with prejudice.
To the extent that the District has not already done so, the District is hereby directed to forthwith reevaluate the Student in all areas of suspected disability and, upon completion of those evaluations, reconvene the CSE, upon reasonable notice to the Parent, to determine what, if any, modifications need to be made to the Student's IEP.
SO ORDERED:
DATED: June 27, 2023
_Steven P. Forbes____ Steven P. Forbes 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
1. Meeting Notice
2. IEP
3. Social History Update
4. Consent for Tele-Therapy – Declined
5. Consent for Tele-Therapy – Declined
6. Consent for Tele-Therapy – Declined
7. Meeting Notice
8. IEP
9. PWN
10. Special Education Program Adaptations Document
11. Related Services Adaptations
12. Related Services Adaptations
13. Related Services Adaptations
14. Missed OT Sessions
15. Missed SLT Sessions
16. Related Services Authorization form
17. Affidavit – SLT Provider
18. Affidavit – OT Provider
Parent Evidence List
A. DPC
B. TDN
C. IEP
D. IEP
E. Affidavit – Parent
F. Affidavit – SLT Provider
Footnotes
[1] No where in the DPC does the Parent actually articulate what school year the Student was purportedly denied a FAPE. However, given the allegations in the petition, it is inferred, for purposes of this decision, that the Parent is referencing that aforementioned school years to the extent the major event that that DPC references is the school closures which occurred in March 2020 and continued until January 2021. However, the failure of the Parent to allege a specific school year is potentially a fatal flaw of the DPC in and of itself. This was, in part, one of the arguments raised by the District in its sufficiency motion.
[2] The Parent requested multiple adjournments in order to secure witnesses who ultimately never appeared.
[3] The list of exhibits is attached.
[4] The Parent presented no contracts from any providers nor did she provide proof of payments made other than her testimony.