New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 571962 - NYC: 225809

FINDINGS OF FACT AND DECISION

Case Number: 225809

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed.

Impartial Hearing Officer: Rachel Glantz

Date of Filing: 04/12/2022

Hearing Requested by: Parent

Date of Hearing: 07/05/2022

Record Close Date: 08/04/2022

Date of Decision: 08/04/2022

INTRODUCTION

On April 12, 2022, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE”) by REDACTED (“Parent”) and on behalf of REDACTED (“Student”), under Case No. 225809, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”) [20 U.S.C. § 1415(f)], and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1). (Ex. P- A). On April 15, 2022, I was appointed impartial hearing officer (“IHO”) for this case. An initial prehearing conference with the parties was held on May 12, 2022. A subsequent status conference was held with the parties on June 16, 2022. An impartial hearing was conducted on July 5, 2022.

A list of the documentary evidence in this proceeding is appended to this Order.

BACKGROUND AND POSITION OF PARTIES

The Student is a REDACTED-year-old non-public school child who is classified by the DOE’s Committee on Special Education (“CSE”) as a student with a Learning Disability. (P-A). The Student’s classification and entitlement to special education services is not in dispute.

On July 1, 2021, Parent filed a DPC under case number 209377, which alleged the DOE had denied the Student a free appropriate public education (“FAPE”) for the 2021-2022 school year as a result of, among other things, the DOE’s failure to develop an individual education program (“IEP”), failure to recommend an appropriate placement, and failure to provide an assistive technology (“AT”) device and AT training. In that DPC, the Parent requested the following forms of relief: DOE to provide the AT device and training recommended in a 2019 AT Evaluation, and direct funding to the Student’s private unilateral placement. (DOE-1). Following an impartial hearing which was held on August 17, 2021, where the DOE failed to present any case, the assigned IHO issued a decision and order finding that the DOE had denied the Student a FAPE for the 2021-2022 school year given that the DOE conceded that they could not meet their burden. Thereafter, the IHO awarded the Parent the requested relief by ordering the DOE to directly fund the Student’s education at the private unilateral placement and ordering the DOE to provide the Student with AT device and software recommended in the 2019 AT evaluation. (DOE-2).

Thereafter, on April 12, 2022, the Parent filed the instant DPC. In it, the Parent alleges that the Student was denied a FAPE for the 2021-2022 school year as a result of the DOE’s failure to provide the Student with the AT device and software as ordered by the prior IHO. (P-A). Further, the Parent includes in the DPC that the DOE has failed to develop an IEP for the Student since May 5, 2018. The DOE concedes that there has been no IEP developed for the Student since 2018. (Tr. 10).1 As a remedy, the Parent seeks the following as compensatory relief: DOE to appoint an assistive technology liaison to ensure the Student has access to all AT equipment and applications and that it is functioning as intended, DOE to provide the Student with the AT device for an additional year as a result of the DOE’s failure to provide the Student with the AT device, and DOE to provide the Student with AT training on proper use of the device.

On May 27, 2022, the DOE filed a Motion to Dismiss, arguing that the Parent’s DPC should be dismissed on the theory of Res Judicata, arguing that the claims raised in the instant DPC were already adjudicated under DPC case number 209377. The DOE further argued that the instant DPC

1 The Parents’ exhibits will be cited to as P.- followed by a letter. The DOE’s exhibits will be cited to as DOE- followed by a number. References to the hearing transcript will be cited as Tr. followed by page numbers. was in effect a request of the Parent for an order to enforce the prior IHO’s decision, and that IHOs lack such authority. (IHO-I). On June 8, 2022, Parent filed a response to the DOE’s motion, in which it was argued that the DOE’s failure to implement the prior IHO’s order resulted in a denial of FAPE to the Student and that the Student should be entitled to the AT device as compensatory relief. The Parent argued the motion should be denied as a new claim arose following the issuance of the prior IHO’s order, namely, the failure to provide the ordered AT device which resulted in the denial of FAPE for the 2021-2022 school year. The Parent further argued in its responsive papers that the DOE failed to convene the CSE to develop an IEP for the 2021-2022 school year after being provided with an independent vocational evaluation in August 2021 from Parent. (IHO- II). On June 15, 2022, I issued my decision on the DOE’s motion in which I denied the motion to dismiss in its entirety, finding that the Parent raised new claims in the instant DPC and as such, the DPC was not a request to enforce a prior IHO’s order. (IHO-III).

During both the pre-hearing conference and subsequent status conference, I asked the parties for clarification on several issues particularly related to the Parent’s requested relief of an AT device without additional compensatory education. (IHO-VII, VIII). Given that the DOE’s agency attorney of record was not present at the June 16, 2022 status conference, I subsequently suggested via email that an additional status conference be held with the parties prior to the impartial hearing in order to further clarify the issues. Due to scheduling constraints, the parties were unable to meet for a status conference. Instead, I sent an email to the parties on June 21, 2022 alerting the parties to the issues I wanted to be resolved during the impartial hearing. In response, the parties requested to have an opportunity to submit closing briefs in order to address my questions after the evidence was presented at the impartial hearing. (IHO-VI).

On July 5, 2022 the impartial hearing was held. The DOE placed documents in evidence, including the prior DPC, the prior IHO’s order, and the instant DPC (DOE-1-3).2 The DOE did not call any witnesses or make any opening remarks. When asked what the DOE’s position was with respect to their burden of proving the provision of FAPE, the DOE responded, “[t]he district is not defending FAPE in this matter”. (Tr. 10).

The Parent presented a case that consisted of testimony by affidavit from the Student’s mother (“Parent”), and testimony by affidavit of REDACTED, occupational therapist (“Evaluator”); and documents placed in evidence by the Parent. (P-A-F). The Parent was cross-examined by the DOE and questioned by me during the impartial hearing.

The parties each submitted closing briefs on July 29, 2022.

LEGAL FRAMEWORK

The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services. 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student

2 The DOE’s exhibits at the impartial hearing were identical to those attached to the Motion to Dismiss. Over the objection of the Parent, I admitted the documents into evidence in order to ensure a complete record. to receive educational benefits. Bd. of Educ. v. Rowley, 458 U.S. 176 (1982); Cerra v. Pawling

Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005). Further, a school district offers a FAPE when it provides special education and related services in conformity with an IEP. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17(d); 8 NYCRR § 200.4(e); D.C. ex rel. E.B. v, New York City Dept. of Educ, 950 F. Supp. 2d 494, 509 (S.D.N.Y. 2013); J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp.

2d 635, 668 (S.D.N.Y. 2011). School districts are not required to “maximize” the potential of students with disabilities. Rowley, at 199. Rather, they must provide “an IEP that is ‘likely to produce progress, not regression,’ and…affords the student with an opportunity greater than mere ‘trivial advancement’”. Cerra, at 195, quoting Walczak. V. Florida Union Free Sch. Dist, 142 F.3d 119 (2d Cir. 1998). The IEP must be reasonably calculated to provide some meaningful benefit. Rowley, at 192.

A school district’s failure to implement a student’s IEP constitutes a denial of FAPE under the IDEA. D.C. ex rel. E.B., 950 F. Supp. 2d at 509; Van Duyn ex rel. Van Duyn v. Baker Sch.

Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) [holding that a failure to implement an IEP may deny a child a FAPE and give rise to a claim under the Act]. However, a party challenging the implementation of an IEP “must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP” (D.D-S v. Southold Union Free Sch.

Dist., 2011 WL 3919040, at *13 [E.D.N.Y. 2011], quoting Houston Ind. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]; K.C. ex rel. J.C.T. v. Chappaqua Cent. Sch. Dist., 2019 WL 6907533, at *13 [S.D.N.Y. 2019]; see also A.P. v. Woodstock Bd. of Educ., 370 Fed. App’x 202, 205 [2d Cir. 2010], requiring a “material” failure to implement an IEP, and citing both Houston Ind. Sch. Dist. and Van Duyn, supra, which held that “a material failure to implement an IEP violates the IDEA”, and that a “material failure occurs when the services a school provides to a disabled child fall significantly short of the services required by the child’s IEP” (Van Duyn, 502

F.3d at 822).

To show a denial of FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App’x 520 (3d Cir. Aug. 14, 2008); Couture v. Bd. Of Educ., 535 F. 3d 1243 (10th Cir.

2008).

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).

FINDINGS OF FACT AND DECISION

Failure to Provide FAPE In April 2019, the Student had a private AT evaluation completed. (P-B). At the time, the Student was in the 8th grade. (P-B-1). The evaluator noted deficits in the Student’s reading and writing skills which have caused the Student to be less confident in the classroom and the community. (Id.). During the evaluation, the Student informed the evaluator that the Student has difficulty reading things like signs and menus when in the community. (Id.). The evaluator recommended that the Student be provided with a MacBook Pro 13-inch with touch bar to use at school and at home along with specific applications and software designed to assist the Student with reading and writing. (Id at 7). It was the evaluator’s opinion that the recommended products would afford the Student the ability to increase the Student’s skills in the areas of reading, writing, organization and comprehension. (Id.).3

On August 5, 2021, a private vocational assessment was conducted by the Evaluator. (P-D at 1). At the time of the assessment, the Student was enrolled in 12th grade. (Id.). The purpose of the assessment was to determine the Student’s interests and skills toward vocational training as part of developing a comprehensive transition plan. (Id.) The Student informed the Evaluator that the Student planned to attend college after graduating from high school. (P-D at 2). In the assessment, the Evaluator noted, “[Student] appears to be a good candidate for assistive technology. Assistive technology may support [Student’s] ability to read and write at a more age appropriate level. (Id. at 32). The Evaluator reiterated this recommendation in her affidavit, stating: [Student] appears to be a good candidate for assistive technology, as it may support [Student’s] ability to read and write at a more age appropriate level. The assistive technology will help [Student] by providing simulation activities to enhance adaptive skills and keyboarding to reduce physical demands of handwriting and increase written expression. I recommend [Student] receive assistive technology in the form of electronic/digital planners/alarms/calendars, graphic

3 Although not specifically addressed at the impartial hearing, it is understood that the recommended AT device was not provided by the DOE to the Student following the completion of this evaluation. organizers, speech to text technology, and test to speech technology to improve executive functioning skills and increase independence. (P-F at 3).

On August 17, 2021, a prior IHO issued an order under case number 209377, directing the DOE, among other things, to provide the specific AT device and software to the Student as recommended in the April 2019 AT eval. (DOE-2)4. The DOE failed to convene to develop an IEP for the Student for the 2021-2022 school year, therefore the DOE never issued an IEP listing an AT device as a supplementary aid to be provided to the Student.

The Student received the AT device from the DOE in January 2022, but it was password protected, and the DOE did not provide the Student with the password. Because the Student could not use the AT device, the Parent returned it to the DOE for the issue to be resolved. (P-C at 1, Tr. 13, 14). In April 2022 the DOE notified the Parent that the AT device was ready to be used, however when the device was returned to the Parent, it was not in a useable condition, and the DOE instructed the Parent to bring the device to the Student’s private school to be fixed, however the private school indicated they would be unable to assist. (Id.). In late June 2022, the Student was provided with the AT device by the DOE in working condition. (Tr. at 16).

As of the date of the impartial hearing, the Parent testified that the Student was completing remaining credits and anticipated graduating from high school in either August or September. (Tr. 18). At the time of the writing of this decision, the Student has graduated from high school. (IHO- IV at 3). During the 2021-2022 school year, the Student attended a private school remotely. In their closing brief, the Parent noted that the private school “(h)as provided [Student] with an

4 The August 2021 vocational assessment was not part of the hearing record on case number 209377. appropriate educational program and support to make up for the Department’s failure to offer [Student] such a program. The AT was crucial to [Student] because despite [private school] providing a program where [Student] was making meaningful progress, [Student] still requires some AT support while learning to be independent while reading, writing, and organizing herself. She cannot read a menu5, it can take her up to forty-five minutes to write a paragraph6, and she does not always prepare a productive workspace for herself of have her notes where they need to be7. (IHO-IV at 3). The Parent, though, in making those assertions as to the need for the AT device, cites to outdated assessments from 2019 and 2021 and has offered no evidence to demonstrate the Student’s current need for the device or any injury suffered as a result of not having it for the majority of the 2021-2022 school year. To the contrary, when asked about the Student’s progress with reading during the 2021-2022 school year, the Parent testified that the Student “made a great deal of improvement. [Student’s] still in school now so I’m not seeing any regression…” (Tr. at 23). Further, Student has now graduated from high school and plans to enroll in a community college.

When asked what the Student would use the AT device for after graduation if awarded, the Parent testified, “…the equipment will help [Student] out immensely with—like [Student] uses it now for you know to assist [Student] with reading. [Student] asked about a word the other day and 5 The only reference to the Student’s difficulty reading a menu is found in the 2019 AT evaluation, and has been repeated multiple times by the Parent in both the DPC and the Closing Brief. While the Student may still have difficulty reading a menu, evidence from 2019 does not prove that the Student continues to struggle to read a menu today.

6 In asserting that the Student continues to have difficulties writing a paragraph, the Parent cites to the August 2021 vocational assessment, in which the Student’s then teacher relayed to the Evaluator of the observation that it can take the Student up to 45 minutes to write a paragraph. (P-D at 8).

7 See (P-D at 8).

I, I can’t remember the word but the word [Student] was thinking it was, it wasn’t so [Student] looked the word up. [Student] also looked up the meaning.” (Tr. 21-22).

The DOE conceded it had not developed an IEP for Student since 2018, allowing for the inference that there was no IEP in place for the Student for the 2019-2020, 2020-2021, or 2021- 2022 school years8. This is a blatant, egregious, and indefensible failure on the part of the DOE.

I find the DOE failed to sustain their burden of proof. While I decline to find a denial of FAPE as a result of the failure of the DOE to provide the Student with the AT device, I do find that the DOEs failure to develop and implement an IEP for the 2021-2022 school year— specifically from August 18, 2021 through the end of the school year—resulted in a denial of FAPE.9

Requested Relief The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” Doe v. East Lyme, 790 F.3d at 454.

8 Neither party introduced an IEP into the record.

9 The prior IHO order was done on August 17, 2021. Therefore, as indicated in my decision on the motion to dismiss (IHO-III), any new claims ripened for the 2021-2022 school year on August 18, 2021.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).

The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” P. ex rel. Mr. & Mrs. P. v. Newington

Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir.

2008). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate” Reid, 401 F.3d 516, 525 (D.C. Cir.

2005) (emphasis in original).

Compensatory education is a “replacement of educational services the child should have received in the first place”, and an award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place” (Reid, 401 F.3d at 518, 524). Compensatory education awards can be used to remedy a school district’s substantive as well as its procedural violations of FAPE. Doe v. East Lyme, 790 F.3d at 456. Additionally, compensatory education awards may include reimbursement for out of pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir.

2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

The Parent seeks an order directing the DOE to provide the Student with the AT device and related applications and software for an additional year, along with a DOE liaison to ensure the device is working properly, and AT training for the Student to ensure the Student knows how to use the device properly. The Parent specifically seeks the AT device for “(a)n additional year as a result of the Department’s failure to timely provide the Student with the necessary AT equipment” (P-A at 4). The DOE argued in their Closing Brief, in addition to restating the argument made in the previously decided Motion to Dismiss, that the requested relief should be denied as moot since the Student received the AT device in late June 2022 and the Student has now graduated.10 This argument is completely without merit. First, having been provided with the AT device in June 2022 does not render the claim moot, given the relief is being sought to make up for the Student not having the AT device between August 18, 2021 through June 2022. More notably, it is well settled that a Student may be eligible for equitable relief beyond their eligibility for special education services. In Somoza v. N.Y. City Dep’t of Educ., 538 F. 3d 106 (2d Cir. 2008), the Court noted: "Compensatory education" is prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any

10 Although the DOE requested to have two weeks to submit closing briefs from the date a transcript was received, the DOE submitted an exact copy of their previously decided Motion to Dismiss as their Closing Brief, with the addition of an argument that DPC should be dismissed as moot since the Student was provided with the AT device in late June 2022. The DOE, in fact, submitted their Closing Brief with the date “May 27, 2022”, which was the date the Motion to Dismiss was filed. earlier deprivations in the child's education. See Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989) aff'g prior holding in Burr v. Ambach 863 F.2d 1071 (2d Cir. 1988). However, an award of compensatory education is appropriate only for gross violations of the IDEA. See Garro v. State of Conn., 23 F.3d 734, 737 (2d Cir. 1994).

The purpose of compensatory services is not to punish the DOE for its failure, but rather to restore the student to where they would have been but for the loss of learning as a result of that failure. For an award of compensatory services to be appropriate, there needs to be evidence that the lack of services resulted in educational harm, beyond the denial of FAPE. Here I find there is insufficient evidence to support the granting of the Parent’s requested relief. Although the DOE did not provide the Student with the AT device as ordered by the prior IHO, the record does not show that the Student suffered an educational injury as a direct result of not being provided with the AT device in a timely manner. To the contrary, as discussed above, Student’s Parent testified that she noted improvement in the Student’s reading throughout the 2021-2022 school year, and in fact the Student has now graduated from high school. While a Student may be awarded compensatory education beyond graduation to make up for a loss of learning incurred as a result of the DOE’s failure to provide a FAPE, there is no evidence in the record that the Student suffered an educational harm.

Further, the Parent seeks only use of the AT device as a remedy, without any additional compensatory education or services. Courts have held that a compensatory award of an AT device can only be granted when the AT device is needed to assist the student in accessing the instructional portions of a compensatory award. See M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812 (S.D.N.Y. March 2017). In M.M. v. New York City Dep’t of Educ., the Court upheld SRO Decision, Appeal No. 14-179, noting that the plain language of 34 C.F.R.

§300.105, “which specifically indicates that assistive technology must be ‘made available to a child with a disability if required as part of the child’s’ special education, related services, or supplementary aids and services. This language supports the SRO’s ruling that assistive technology is not itself an appropriate award of compensatory education, but rather, is appropriately included as a supplement when necessary to implement the awarded compensatory education”. Here, the Parent has not sought an award for any compensatory education or services other than the use of the AT device, and the record does not demonstrate the Student’s need for any such additional compensatory education or services.

I therefore find that although the Student was denied a FAPE for the 2021-2022 school year, the Student did not suffer any educational harm as a result. Further, even had the Student suffered such an injury, I further find that Parent is not entitled to the requested relief.

Parent’s request for relief is therefore DENIED. Parent’s DPC is therefore DISMISSED.

Dated: August 4, 2022

Rachel Glantz

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.

DOCUMENTS ENTERED INTO EVIDENCE

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

1.

Due Process Complaint 209377

07/1/2021

10

2.

377

08/17/2021

13

3.

Due Process Complaint 225809

04/12/2022

5

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A.

Parent’s Hearing Request

04/12/2022

5

B.

Independent Assistive Technology Evaluation Report

04/03/2019

9

C.

Affidavit of REDACTED, Parent

05/10/2022

2

D.

Independent Vocational Assessment

08/05/2021

34

E.

REDACTED Speech Services Rate Sheet

Undated

1

F.

Affidavit of REDACTED

06/29/2022

3

IHO EVIDENCE

Exhibit

Title

Date

Pages

I.

DOE Motion to Dismiss

05/27/2022

9

II.

Parent Response to Motion

06/08/2022

7

III.

Decision on Motion to Dismiss

06/15/2022

7

IV.

Parent Closing Brief

07/29/2022

6

V.

DOE Closing Brief

07/29/2022

10

VI.

Email correspondence between IHO and Parties

06/17/2022-

06/21/2022

8

APPENDIX

REDACTED