New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 572353 - NYC: 225991

FINDINGS OF FACT AND DECISION

Case Number: 225991

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Date of Hearing: December 7, 2022, January 6, 2023 and January 10, 2023 Record Closed Date: January 10, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the December 7, 2022 Hearing For the REDACTED

None.

For the Parent

REDACTED, Esq., Attorney for Parent

REDACTED, Parent

Names and Titles of Persons who appeared at the January 6, 2023 Hearing For the REDACTED REDACTED, Esq., Attorney for the REDACTED For the Parent REDACTED, Esq., Attorney for Parent REDACTED, Parent Names and Titles of Persons who appeared at the January 10, 2023 Hearing For the REDACTED

None

For the Parent

REDACTED, Esq., Attorney for Parent

REDACTED, Parent

I. Introduction and Procedural History

On June 21, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his Parent (“Parent” or “Parents”). A pre-hearing conference was held on July 28, 2022, status conferences were held on October 12, 2022 and October 19, 2022 and hearings were held on December 7, 2022, January 6, 2023 and January 10, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq., and Parent was represented by REDACTED, Esq. and REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The REDACTED requested an opportunity to submit a written closing but failed to do so. The hearing record was closed effective January 10, 2023.

II. Background

Student is currently diagnosed with Amblyopia, Sensory Integration and Processing Disorder, Hypotonia, and developmental delays, and borderline Autism Spectrum Disorder. (Exh. Q, page 1 and Exh. S, page 1). Parent filed a due process complaint on August 19, 2022, seeking a finding of a denial of Student’s right to a Free and Appropriate Public Education (“FAPE”) for the 2020-2021, 2021-2022 and 2022-2023 school years, and relief in the form of Independent Educational Evaluations (“IEEs”), evaluations, compensatory services, and a reconvene of the Committee on Special Education to recommend at appropriate program. (Exh. P). The REDACTED submitted not evidence and presented no witness testimony at hearing. Parent had three witnesses, including Parent. (Exh. Q, Exh. R and Exh. S). The REDACTED declined the opportunity to cross-examine the witnesses. (Tr. 35).

III. Discussion

FINDINGS OF FACT AND DECISION

The REDACTED did not defend its IEP’s and thus no further discussion is necessary. (Exh. F, Exh. G and Exh. M). Parent provided documentation from the REDACTED conceding that, as of July 22, 2022, Student is entitled to compensatory education, including 182 sessions of speech and language therapy, 259 sessions of occupational therapy, and 147 sessions of counseling. (Exh. N).

Parent provided affidavit testimony from Dr. REDACTED, director of REDACTED regarding the need for compensatory services. (Exh. R). REDACTED specializes in providing one on one tutoring to special education students using research based, multi-sensory methodologies that are individualized to the needs of each student. (Exh. R, page 2). Students’ strengths and weaknesses are assessed, and the appropriate type of researched-based techniques are determined to best meet the student’s needs; the assessment includes the review of the Individualized Education Programs (“IEPS”) and testing reports. (Exh. R, pages 2-3). Student was evaluated on November 9, 2022, including a reading, spelling, math and writing standardized testing. (Exh. R, page 3). Student tested at a pre-kindergarten level for spelling, math computation, word reading and reading comprehension. The evaluator found that Student lacked academic foundations across the board in reading, spelling, writing and math. (Exh. O and Exh. R, page 4). The evaluator recommended 400 hours of academic tutoring to remediate Student’s deficits. (Exh. R, page 4).

Parent also provided an affidavit from REDACTED, PsyD, BCBA, LBA. (Exh. Q). Dr. REDACTED recommended, based on review of the relevant documents, that Student needs ten hours per week of Applied Behavior Analysis support per week, based on the assessment that Student exhibits significant weaknesses in cognitive, language, social and daily liking skills. (Exh. Q, page 1). The witness testified, by affidavit, that Student should have received these ten hours per week for two 46-week school years. (Exh. Q, page 2).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415(f)(3)(E)(i)). 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). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district 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, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir.

2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services.

(See 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not submit evidence, provide testimony, or otherwise argue that the IEP provided FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. Thus, the REDACTED has not met its burden of proof and Parent is entitled to relief.

REQUESTED RELIEF

EVALUATIONS AND RECONVENE

Parent requests that the REDACTED provide three evaluations, including speech and language therapy, occupational therapy, and physical therapy. (Exh. P, page 7 and Exh. S). Additionally, Parent requests an independent neuropsychological evaluation. (Exh. P, page 7 and Exh. S). Finally, Parent requests a reconvene of the CSE upon completion of all evaluations. (Exh. P, page 7 and Exh. S). The REDACTED did not object to these requests, and it is clear that updated and comprehensive evaluations are needs to determine the appropriate program. The requested evaluations and the reconvene will be ordered.

COMPENSATORY EDUCATION SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d

Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate 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 ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Under the qualitative approach, the examination should focus on the child’s needs; “some Students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Parent requests considerable compensatory education services, to be provided at an enhanced rate, including 500 hours of compensatory tutoring, 80 hours of compensatory play therapy, 259 sessions of compensatory occupational therapy, 182 session of compensatory speech language therapy and 147 sessions of compensatory counseling^[1]. (Exh. N and Exh. P, page 7-8). Through both documentary and testimonial evidence, Parent has shown the justification both for these compensatory services and for the hours requested. Therefore, I order the REDACTED to fund a bank of compensatory services for the requested hours, except as noted, to be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

IV. Order

IT IS THEREFORE ORDERED THAT:

• • The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2020-2021, 2021-2022, and 2022-2023 school years.
• • The REDACTED shall fund an independent neuropsychological evaluation within fifteen days of receipt of this Findings of Fact and Decision at a rate not to exceed reasonable market rate.
• • The REDACTED shall conduct a comprehensive Speech Language Therapy, Physical Therapy and Occupational Therapy Evaluations within thirty days of receipt of this Fact and Decision.
• • The Committee on Special Education shall reconvene within thirty days of receipt of the completed to develop an appropriate program based on the recommendations and findings of the evaluations.
• • The New York City Department shall provide a bank of 500 hours of compensatory education to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The New York City Department shall provide a bank of 80 hours of compensatory play therapy to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The New York City Department shall provide a bank of 182 sessions of compensatory speech and language therapy to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The New York City Department shall provide a bank of 259 sessions of compensatory occupational therapy to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.
• • The New York City Department shall provide a bank of 147 sessions of compensatory counseling to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.

Dated: January 18. 2023

AUDREY DANIEL, ESQ.

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.

EXHIBITS ADMITTED AT HEARING

REDACTED

None.

Parent

A 12.6.19 Bilingual Social History 2

B 12.6.19 Bilingual Psychological Evaluation 7

C 12.17.19 Occupational Therapy Evaluation 4

D 12.19.19 Bilingual Educational Evaluation 5

E 12.20.19 Bilingual Speech and Language Evaluation 4

F 12.20.19 Preschool Student Evaluation Summary Report 2

G 1.7.20 Individualized Education Program 20

H 2.10.22 Turning Five Service Provider Progress Report 5

I 2.14.22 Consent for Additional Assessments 1

J 2.14.22 Email Correspondence Between Parent and REDACTED Regarding Consent 1

K 3.24.22 Classroom Observation 2

L 4.11.22 Social History Update 2

M 5.10.22 Individualized Education Program 29

N 7.25.22 Email Correspondence Between Parent and REDACTED Regarding Compensatory Services 2

O 11.10.22 REDACTED Evaluation 2

P 8.19.22 Amended Request for Impartial Hearing 8

Q

11.30.22

Affidavit of Dr. REDACTED

2

R 12.28.22 Affidavit of REDACTED 5

S 12.28.22 Affidavit of Parent 11 Impartial Hearing Officer None.

Footnotes

[1] I note that Parent requests “hours” instead of sessions. However, the email to Parent states that Student is entitled to “sessions” of related services. Parent provided no justification to change “sessions” to hours.