New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 226217

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: 2-4-23

Actual Record Close Date: 2-4-23

Hearing Officer: Steven P. Forbes

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 15, 2022

For the Student:

[REDACTED]

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 May 4, 2022. In the DPC the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2021-2022 school year for failure to provide an appropriate program. The Parent requested relief in the form of compensatory education and services.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on June 24, 2022. A hearing regarding the Parent’s request for compensatory education was held on July 27, 2022, November 3, 2022, and December 15, 2022. The District presented no evidence or witnesses. The Parent presented twenty-three exhibits, which were admitted into evidence and the record.^[1] The record closed on January 23, 2023. There were six extensions of the compliance date. At the conclusion of the hearing, the District, which has presented no evidence, nonetheless opposed the Parent’s request for relief. On the other hand, the District, which presented no evidence or witnesses on the issue of FAPE has conceded that the District did not, in fact, afford the Student a FAPE for the 2021-2022 school year.

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 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, the District did not present any witnesses that demonstrated that they had provided the Student with the services to which he was entitled. The District has therefore conceded, for all intents and purposes, and I so find, that it denied the Student a FAPE over the course of the 2021-2022 school year by failing to implement their own IEP and by failing to create an appropriate program for the Student for the 2021-2022 school year.

In its summation, the District argues, among other things, that the Parent’s claim is barred by res judicata. However, even a cursory review of the DPC reflects the Parent’s current allegations pertain exclusively to the 2021-2022 school year and not, as the District suggests, to prior school years. Moreover, the fact that the Student has been awarded compensatory education and/or services in prior impartial hearings is wholly irrelevant to this case as those awards were designed to compensate the Student for education and services he should have received in prior school years.

More importantly, the District presented no evidence whatsoever to challenge the various assessments/recommendations presented by the Parent’s expert witnesses. Rather, the District simply insists, in its closing, and without evidentiary support, that the IEP developed for the Student was appropriate, that the Student has a bank of compensatory education and services from prior cases and that, as a result, the current DPC should be dismissed.

As to the Parent’s request for compensatory ABA/ transition services, the District has been aware, since June 2022 that the last FOFD mandated that the Student should receive 35 hours per week of ABA services. (P-B). Prior to that, the District executed the SOAO in which the parties reached the same agreement. (P-C). And, prior to that, the FOFD issued in July 2019 mandated the Student for even more hours per week of ABA services. Despite these findings and agreement, there remained no mention of ABA services in the Student’s June 2021 IEP. This was also despite the fact that the BCBA and SETSS providers personally attended the IEP meeting and recommended a continuation of that service. (P-U, page 12). At that meeting, the CSE was provided with copies of the Student’s progress reports. Id. The other members of the meeting expressed support for these services. Id. However, the IEP team maintained, as it had in prior years, that it could not include ABA services on the Student’s IEP and that said services need to be ordered by an IHO.^[2] Id. As with every other alleged violation, discussed more fully below, the District elected not to defend the decision not to include ABA services on the Student’s IEP. I am therefore constrained to find, as every other IHO has, and has been recommended by the BCBA, that Student should have been mandated to receive 35 hours per week of ABA services. Given that the focus of those services needed to shift to transitional services (P-K; P-U; P-W), I find that the Student should have received 35 hours per week of ABA/transition services for the entire 46 week school year, or 1610 hours. Notwithstanding this fact, the Student has already received a bank of 690 hours from a prior impartial hearing. (P-B). As the prior IHO noted, “[i]nherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family.” So too, would an additional award of 1610 hours, particularly given that the Student still has other services to complete and will be attending school through the 2023-2024 school year. As a result, I find that an award of 800 hours to be appropriate.

As to the Parent’s request for compensatory SLT, the Parent submitted an affidavit of a speech pathologist that indicated that the Student requires one-to-one instruction and recommended increasing the Student’s SLT to five times per week for 30 minutes, to include transition services, with an ASL interpreter for his ABA sessions. (P-S, page 5). Instead, the IEP team recommended the Student receive two sessions per week for 30 minutes. (P-G, page 18). As stated, the District elected not to defend this IEP and there is no evidence in the record to suggest that the District reconvened the CSE to consider these recommendations. I am therefore constrained to find that the District has conceded that its recommendation regarding SLT was insufficient to meet the Student’s needs for the 2021-2022 school year. The difference between what the Student received and what he should have received totals 69 hours (5x30 v. 3x30 over 46 weeks). The Student also missed 11 hours of SLT due to the Student’s medical needs. This brings the total number of hours to 80.

As to the Parent’s request for compensatory OT, the IEP team recommended the Student receive OT (2x30). (P-G, page 18). This was despite the fact that the most recent FOFD indicated that the Student should be receiving OT five times per week, as did the SOAO, the latter of which predated the development of the IEP at issue in the current DPC. (P-B; P-C). Indeed, the IEP itself contains a plethora of concerns expressed by the occupational therapist working with the Student. (i.e., P-G, pages 3-7). As with the SLT, the District elected not to defend its recommendation that the Student should only receive three thirty-minute sessions per week of OT and has therefore conceded that its recommendation denied the Student a FAPE. The difference between what the Student received and what he should have received totals 69 hours (5x30 v. 3x30 over 46 weeks). The Student also missed 11 hours of OT due to the Student’s medical needs. This brings the total number of hours to 80.

As to the Parent’s request for compensatory PT, the Parent indicated in their closing that the Student should have been receiving five sessions per week of PT, rather than the two sessions he was mandated for. (P-G, page 18). In their closing, the Parent alleges that the District failed to consider the recommendations of a PT IEE which recommended greater frequency of PT. However, there is no report or affidavit from a physical therapist in this record which makes such a recommendation. Indeed, the Parent, in their closing makes reference to these reports but only cites the DPC, the affidavit of the BCBA, and the Parent’s Affidavit. This is clearly insufficient. Moreover, the most recent FOFD specifically ordered that the Student receive two sessions per week of PT. As a result, there is no evidence in the record upon which to base an award of compensatory PT and the Parent’s claim for this must be denied.

As to the Parent’s request for compensatory Hearing Education/ASL services, the Parent seeks an award of 6.5 hours for missed services and an additional 69 hours based upon an alleged failure to provide the Student with 1.5 hours per week of an ASL interpreter throughout the 2021-2022 school year. The Student’s SL therapist testified that the Student communicates primarily with a “variety of sign language.” (P-S, page 4). The Student’s IEP for the 2021-2022 school year mandated the Student for Hearing Education Services (3x30) for the entirety of the twelve-month school year. (P-G, page 18). The Parent claims that during the 2021-2022 school year, that the Student was never provided with an ASL interpreter, despite prior FOFDs directing the District to do so. (P-B; P-D; P-W, page 3, ¶ 46). Once again, the District chose not to challenge this claim. However, the Parent’s claim that the Student is entitled to 69 hours of hearing education services as a result of this denial is not supported in the record. Specifically, there is no expert opinion upon which it is based or even a reason provided for why the Parent is making this request. Put another way, the Parent fails to explain how an award of compensatory hearing education is supposed to rectify the failure of the District to provider an ASL interpreter through all or part of the 2021-2022 school year. There is no recommendation, for example, from an audiologist that supports the Parent’s request for additional hearing education services. In addition, there is no claim by the Parent that the Student did not receive his mandated amount of hearing education services. As a result, there is simply no expert opinion or evaluative data upon which to base an award of compensatory hearing education services. As a result, that claim must also be denied except to the extent that the Parent sought compensatory hearing education for missed sessions or 6.5 hours.

As for the Parent’s request for translation services, the Parent requests that the District be required to fund ten hours per month for the Parent to utilize during transition planning. It is unclear how this number was calculated. There is no report or documentation of any kind supplied by the Parent that explains this award or, for that matter, how specifically these services would be utilized in the future. Nevertheless, according to the Parent, the CSE failed to arrange for a translator to be present for the Parent during the IEP meeting and instead relied on a teacher who apparently only translated portions of the meeting to the Parent. (P-W, page 3). As a result, the Parent missed certain details of the meeting. To be sure, this was an egregious violation of the Parent’s right to fully participate in the development of the IEP. This violation was made all the worse by the CSE’s failure to provide the Parent with copies of reports in her native language. Id. As a result, I find it appropriate to award direct the District to fund up to ten (10) hours per month of translation services to assist the Parent in fully participating with the Student’s transition planning.

DECISION

Based on a review of the record and the details mentioned above, I find that the District failed provide FAPE to the Student for the 2021-2022 school year.

ORDER

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

It is Ordered that the Student shall be entitled to the following:

• • A bank of 800 hours of compensatory ABA/transition services; and,
• • A bank of 80 hours of compensatory Speech and Language Services;
• • A bank of 80 hours of compensatory Occupational Therapy; and,
• • A bank of 6.5 hours of Hearing Education Services.

It is further Ordered that the above services are to be provided by providers of the Parent’s choosing with said providers to be compensated by the District at a reasonable market rate. The above services shall be utilized on or before July 30, 2025.

The District shall fund translation services for the Parent to assist the Parent review documents and/or participate in meetings related to the Student’s transition planning for up to ten (10) hours per month. It is further Ordered that the translation services are to be provided by a provider or agency of the Parent’s choosing with said provider to be compensated by the District at a reasonable market rate.

The District shall calculate additional missed education and related services due to failure to implement pendency within 15 days of the date of this Order and those hours shall be added to the compensatory bank.

As to the Parent’s claim for compensatory PT, that claim is denied.

SO ORDERED:

DATED: February 4, 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

None

Parent Evidence List

• • DPC
• • FOFD
• • SOAO
• • FOFD
• • Pendency Agreement
• • IEP
• • IEP
• • IEP
• • PWN
• • Level 1 Vocational Interview
• • Transition Assessment and Vocational Profiling
• • SETSS/ABA Progress Report
• • SETSS/ABA Progress Report
• • SETSS/ABA Progress Report
• • SETSS/ABA Progress Report
• • Psychological Evaluation
• • Letter re Overage Students from SED
• • Enderle-Severson Transition Rating Scale
• • Affidavit – SLT
• • Transition Planning and Services
• • Affidavit – BCBA
• • Transition Planning Timeline
• • Affidavit - Parent

Footnotes

[1] The list of exhibits is attached.

[2] The District’s inexplicable, continuous and across the board refusal to include ABA services in any IEPs is well known at this point.