New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number:

226496

Student’s Name:

REDACTED

School District:

N.Y.C. Dept. of Ed.,

Impartial Hearing Officer:

Teril Holston, Esq.

Date of Filing:

5/18/2022

Hearing Requested by:

Parent

Date of Hearing:

10/6/22

Record Close Date:

11/21/22

Date of Decision:

11/29/22

INTRODUCTION

This matter comes before the undersigned Hearing Officer at the request of Petitioner, the parent of the student, a REDACTED year-old school student NOT classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”); New York State Education Law; and the New York State regulations.

On May 18, 2022, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) alleging that the District failed to provide the student with a Free and Appropriate Public Education (“FAPE”) for the 2019-2020, 2020-2021, and 2021-2022 school years, in that the District did not meet its Child Find Obligations, the District failed to classify the student as a student with a disability and recommend an IEP program reasonably calculated to confer an educational benefit (P-A)1. The Petitioner is compensatory education in a bank of hours for special education instruction, speech therapy, occupational therapy, assisted technology training and instruction, the CSE to reconvene, and a placement in a non-public school, (Id.).

In light of the foregoing and as more fully discussed below, I find that a) the DOE failed to meet its burden that it met its Child Find Obligations and offered the student FAPE for the 2021-2022 school year, and b) the student is entitled to relief.

PROCEDURAL HISTORY

On May 24, 2022, the undersigned was appointed to conduct an impartial hearing.

The parties held a number of status conferences and the hearing deadline was extended to permit completion of the record.

On October 6, 2022, the virtual impartial hearing on the merits of the DPC commenced and concluded. It was a closed hearing and the record closed on November 21, 2022.

At the hearing, the District’s representative, submitted documents (Ex. DOE-1 through DOE-4) into evidence, but did not call any witnesses. All documents were entered into evidence without objection from the Parent. The District made an opening and closing statement.

The Parent, through their representative, submitted documents (Ex. P-A though P-N)2 into evidence, including the affidavit testimony of the parent and the Private School Principal, in support of the Parent’s case. All of the documents were admitted into evidence without objection

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

2 A more detailed list of exhibits is attached. from the District. The Parent rested and the DOE advised that it had no further testimony or documents to offer.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

FINDINGS OF FACT

After a full review of the record generated at hearing, I make the following findings of fact and determinations:3 The student is an REDACTED year old six grader currently attending The REDACTED School, a gifted and talented public school, for the 2022-2023 school year (P-Z). At the time of the filing of the instant DPC, the student had been attending the REDACTED School, a private school, since 1st grade (P-Z). In Summer 2019, the parent sought a neuropsychological and educational assessment of the student, then a rising 3rd grader, with Dr. REDACTED, PhD. (P-P). The evaluator administered a number of tests including, but not limited to Wechsler Individual Scale for Children, 5th Edition (WISC-V), Wide Range Assessment of Memory and Learning- Second Edition (WRAML-2), Woodcock Johnson Tests of Achievement—Fourth Edition, Form A (WJ- IV ACH), Behavior Rating Inventory of Executive Function, 2nd Edition (BRIEF-2)—Parent and Teacher, and the Conners-3 (P-P-5). The student presented with a Full Scale IQ score of 119, placing her in the 90 percentile. While the student presented with high to average scores, the evaluator opined that the discrepancies in her verbal comprehension score (98th percentile) and her fluid reasoning (73rd percentile) and working memory (50th percentile) suggests that the student’s “ability to understand and express herself verbally is significantly and unusually more developed than her other cognitive skills” (P-P-7). With respect to her attention and executive functioning challenges, the evaluator opined that the student met the criteria for Attention Deficit Hyperactivity Disorder (ADHD) and Specific Learning Disorder with impairment in reading (P-

3 Although only portions of the evidence are referenced herein, the testimony and documents were reviewed and considered, in full.

P). The evaluator recommended that the student 1) receive a lot of structured support during writing, 2) small group or individual instruction using a systematic, evidence based methodology, 3) occupational therapy to address her handwriting and impulse control, 4) counseling to better understand and express her feelings (P-P). The student’s 2019-2020 Learning Profile detailed the student’s strengths, challenges, and the classroom modifications made for that academic year, including: reading support, preferential seating, positive feedback, previewing rules, dictation/ help outlining (P-O). Specifically, the private school provided small group and 1:1 support multiple times per week for the 2019-2020 school year (P-Q).

The student continued to struggle therefore the parent made a referral to the CSE for an evaluation on July 30, 2021 (P-Z; DOE-1). In preparation for the IEP meeting, the student underwent a psychoeducational evaluation (P-J) and an occupational therapy evaluation (P-I). Of significance, the psychoeducational evaluation closely mirrored the same concerns noted in her. August 2019 evaluation, and made the following recommendations: the student should receive n IEP, the student should be placed in an Integrated Co-Teaching (ICT) class setting, the student should receive Special Education Teacher Support Services (SETSS) using the Wilson Reading System or Orton-Gillingham based approach in reading, writing and math, the student may require occupational therapy, and several accommodations to address her executive functioning and attention challenges (P-J). The student’s occupational therapy evaluation recommended she receive 2x45 minutes of occupational therapy weekly and identified long term goals (P-I).

The parent also completed a NYC DOE social history where she detailed the additional supports the student received in the private school and her continuing struggles (P-M). In addition, the CSE convened on October 7, 2021 with the following documents: classroom observations (10/6/2021), speech and language assessment (10/4/2021), August 2019 independent neuropsychological, teacher report (August 18, 2021), visual processing evaluation (11/20/2018), Private School letter (October 7, 2021), and the Private school end of year report (10/7/2021) (DOE-2), many of which were made part of the hearing record (P-K; P-L; P-M; P-P; P-R). The CSE meeting was also attended by the student’s private school classroom teacher and learning specialist (DOE-4). After review of all the evaluative data, at the conclusion of the meeting, the District found the student ineligible for special education (DOE-3; P-S). In their determination, the District focused on the student’s average to high average scores, reasoning that the student was functioning academically at a fourth grade level, while in the fifth grade

(Id.). With regard to the OT evaluation, the district reasoned that the student “demonstrated age level self-regulation skills” and “overall motor proficiency” (Id.). Further the District noted that the student is able to access the general education classroom (Id.).

According to the DPC, the parent expressed disagreement with the District’s evaluation and requested independent educational evaluations on or about May 13, 2022 (P-A).4 As a result, the student underwent an independent neuropsychological evaluation, occupational evaluation, speech language evaluation and assistive technology evaluation in September 2022 (P-B; P-C; P- D; P-E). The most recent comprehensive neuropsychological evaluation diagnosed the student with Specific Learning Disorder with deficits in reading (rate and fluency); Specific Learning Disorder with weakness in written expression including spelling accuracy, grammar and punctuation, accuracy and organization of written expression; and ADHD, Inattentive type (P-B). After a thorough analysis of the student, the evaluator opined that the student requires an IEP with a classification of Other Health Impaired recommending an ICT class setting, in addition to many of the recommendations previously recommend in the 2019 and 2021 evaluations (See P- B; P-J; P-P). However, this evaluation recommended assistive technology (P-B). The OT evaluation recommendations mirrored the 2021 OT evaluation, while the speech language evaluation found that the student presented with average to above average function requiring no speech and language therapy services (P-C; P-D). The student’s assistive technology evaluation recommended the student the student be provided with a Chromebook, with various applications, for use at home and in school, with AT training being provided to the student and the parent 1x weekly, each (P-E).

After a review of all the evaluations and reports, REDACTED composed a compensatory services plan to address the student’s deficits (P-T). Specifically, the providers recommend 552 hours of special education instruction (6 hours weekly x 46 weeks x 2 years), 138 hours of OT (1.5 hours weekly x 46 weeks x 2 years, 46 hours of AT training for the student (1 hour weekly x 46 weeks x 1 year), 46 hours of AT training for the parent (1 hour weekly x 46 weeks x 1 year) at the rate of $180 per hour.

APPLICABLE LEGAL STANDARD

4 The request for IEEs was not entered into evidence. Additionally, it appears that the IEE request was submitted 3 days prior to the filing of the DPC.

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE.5 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.”6 In order to demonstrate that a 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.”7 The student's recommended program must also be provided in the least restrictive environment with non-disabled peers.8

Two purposes of the IDEA 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.9 “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.”10

If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE,

(b) significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits11.

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 FAPE12. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"13.

5 See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).

6 Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982).

7 See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206.

8 See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

9 20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, 458 U.S. at 206-07.

10 Rowley at 206

11 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

12 20 U.S.C. § 1415[f][3][E][i].

13 Rowley, 458 U.S. at 203.

Special education services must be provided by the district in conformity with the student's IEP14. A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits15.

However, school districts are not required to "maximize" the potential of students with disabilities16, but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"17. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"18.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of proof at an impartial hearing is on the district, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement19. Accordingly, the district bears the burden here.20

ANALYSIS

• • Child Find The parent first alleges that the District failed to timely evaluate, classify, and provide the student an IEP and such failure denied the student a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years. This District failed to present any evidence to challenge the parent’s assertion, and therefore failed to meet its burden.

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a

14 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.

15 T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].

16 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

17 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

18 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

19 Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012].

20 SRO-19-101.

student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability... and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v.

L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C.

§ 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).

2019-2020 and 2020-2021 School Years

Here, the DPC includes allegations that the District failed to provide a FAPE for portions of the 2019-2020 and 2020-2021 school years, but those allegations are broad and vague.

Moreover, the hearing record is sparse as to those two school years. The record does not support that the District had reason to suspect that the student was a student with a disability requiring special education services.

2021-2022 School Year

However, the District did not comply with its child-find obligations during the 2021-2022 school year. As explained herein, the hearing record evinces that the student exhibited signs of a disability that the district ignored or that gave the district reason to suspect that the student had a disability and required special education to address that disability. Moreover, the District was aware that the student was doing so well at the private school because she received such intensive individualized special education support. The remedy for such a child find violation would typically be an order for the student to be evaluated, which I find appropriate here (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]).

The student is no longer attending the private school with such the extra support, the student is in fact, enrolled in a public school without an IEP or any of the related service she requires based on the hearing record.

• • Eligibility for Special Education In addition, the parent contended that the evaluation conducted by the CSE was inadequate and failed to accurately describe assessments of the student's academic functioning, attention, focusing and organization skills. Further, the District failed to defend its evaluation of the student, nor did it provide an explanation as to why it disregarded the independent evaluator’s recommendations.

An initial evaluation of a student must include a physical examination, a psychological evaluation, a social history, a classroom observation of the student and any other "appropriate assessments or evaluations," as necessary to determine factors contributing to the student's disability. 21 Pursuant to 8 NYCRR 200.4(b)(4), a reevaluation of a student with a disability must be conducted by a multidisciplinary team or group that includes at least one teacher or specialist with knowledge in the area of the student's disability and, in accordance with 8 NYCRR 200.4(b)(5), the reevaluation must be "sufficient to determine the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education." The CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.22 Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP.23 In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.24 A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status.25 An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services needs, whether or not commonly linked to the disability category in which the student has been classified.26

21 8 NYCRR 200.4[b][1]

22 8 NYCRR 200.4[b][3]

23 20 U.S.C. § 1414[b][2][A], [B]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77

[OSEP 2007]

24 20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x]

25 20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii]

26 34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018 The IDEA defines a "child with a disability" as a child with specific physical, mental, or emotional conditions, including a learning disability, "who, by reason thereof, needs special education and related services."27

At the impartial hearing, while not required to do so, the parented demonstrated that the student qualified as a child with a disability under the classification of other health-impairment. A child with a disability having an other health-impairment, pursuant to the statute, means "a child evaluated... as having... an other health impairment... and who, by reason thereof, needs special education and related services."28 Other health-impairment, in turn, is defined as:

having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that--

• • Is due to chronic or acute health problems such as asthma, attention deficit disorder or attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette syndrome; and
• • Adversely affects a child's educational performance.29 Here, the record overwhelmingly demonstrates that the student has a diagnosis of ADHD, among others, that directly impairs her ability to focus in the classroom setting, requiring her to have extended time, preferential seating, visual cues to maintain and redirect attention (P-B, see also P-C; P-E; P-F; P-G; P-H; P-I; P-J; P-L; P-M; P-N; P-P; P-T; P-U; P-X, P-Z). The District failed to conduct appropriate evaluations in all areas of the Student’s suspected disabilities and failed to create and implement an appropriate IEP reasonably calculated to enable the Student to make appropriately ambitious progress in light of the Student’s circumstances. Although not the Parent’s obligation, the Parent has made out a substantial case that the DOE denied the Student a FAPE, causing a deprivation of educational benefits, and the DOE has not met its burden. The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."30 27 20 U.S.C. § 1401[3][A]; Educ. Law § 4401[1] 28 34 CFR 300.8[a][1] 29 34 CFR 300.8[c][9]; see 8 NYCRR 200.1[zz][10] 30 Rowley, 458 U.S. at 203.

The District offered no explanation as to how the CSE made its recommendation or how the Ineligibility Determination appropriately describes the Student. In short, the District declined to “offer a cogent and responsive explanation for their decisions” in not creating an IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. Therefore, the undersigned is constrained to find that the District failed to offer the student a FAPE for the 2021-2022 school year. Moreover, a review of the record herein establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer FAPE for the 2021-2022 school year.

The undersigned finds that these failures cumulatively rise to the level of a violation entitling the Parent to relief.

APPROPRIATE REMEDY

Compensatory Education or Services:

The Parent is seeking compensatory services for the DOE’s failure to provide the Student with a FAPE. An IHO may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE31. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA32.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Given the duration of the deprivation and the testimony on record, this case lends itself more appropriately towards the qualitative approach.

31 P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

32 P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

Parent’s witness and representative detailed, as part of their recommendations, and through the DPC, compensatory related services as follows:

• • The CSE to reconvene to incorporate the recommendations of the requested independent educational evaluations;
• • An appropriate approved non-public school placement by the District’s Central Based Support Team
• • 552 hours of special education instruction (6 hours weekly x 46 weeks x 2 years);
• • 138 hours of OT (1.5 hours weekly x 46 weeks x 2 years;
• • 46 hours of AT training for the student (1 hour weekly x 46 weeks x 1 year);
• • 46 hours of AT training for the parent (1 hour weekly x 46 weeks x 1 year) at the rate of $180 per hour;

The DOE did not present any evidence or witnesses challenging the number of compensatory hours requested or rates of the provider proposed, however, the IHO must craft an appropriate award to make the student “whole.” The hearing record includes testimony as to the rates of the services provided by ELS. This rate is standard for the services in question and not unreasonable.

While, the record supports a finding that the Student is entitled to compensatory services, the formulation of the recommended hours should not disregard in its entirety the program and related services provided to the Student as a whole, over the SYs at issue. Lastly, any award shall consider the nature of the violation and the impact the award may have on the child’s educational needs.33

ELS provided a detailed breakdown in its compensatory services plan (P-S). Of note, the recommended service plan assumes an extended school year, while the reports and evaluations in the hearing record did not indicate that this student requires an extended school year. Further, the contributors of the compensatory service plans did not identify, when asked by the IHO, a specific need for this student to receive services and instruction for an extended school year (See Transcript). Other than adjusting from a 46 week extended school year to a 40 week regular school year, I see no other reason to disturb the recommendations of the providers.

33 see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]

These above considerations have factored into my calculation of compensatory hours awarded as follows:

• • The CSE to reconvene upon the completion of all the IEEs and develop an IEP for the student, classifying the student as Other Health Impairment, or other appropriate classification, supported by the evaluative data collected;
• • Funding for 480 hours of special education instruction/ Intensive Individualized Academic Remediation by a special education teacher with training in Orton Gillingham and experience in executive function (6 hours weekly x 40 weeks x 2 years);
• • Funding for 120 hours of OT (1.5 hours weekly x 40 weeks x 2 years;
• • Funding for 40 hours of AT training for the student (1 hour weekly x 40 weeks x 1 year);
• • Funding for 40 hours of AT training for the parent (1 hour weekly x 40 weeks x 1 year).

Other than the reasons provided for adjusting the award for compensatory services, the undersigned does not find any other equitable factors applicable.

CONCLUSION

Based on a review of the record and the findings mentioned above, the undersigned makes the following findings:

• • The District failed to meet its “Child Find” obligations, and as such the parent is entitled to an evaluation of the student for the 2021-2022 school year.
• • The District erred in failing to classify the student as a student with a disability.
• • The District failed to provide the student with a FAPE during the 2021-2022 school year.
• • The student is entitled to compensatory education.
• • The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund the following compensatory services for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, holidays, or during school vacation, by issuing payment directly to the providers within thirty (30) days of the submission of copies of the invoices for such services rendered:

• • Funding for 480 hours of 1:1 special education instruction/ Intensive Individualized Academic Remediation by a special education teacher with training in Orton Gillingham and experience in executive function (6 hours weekly x 40 weeks x 2 years), at a rate of $180 per hour, to be scheduled at the parent’s discretion, not to expire until 2.5 years from the date of this Order;
• • Funding for 120 hours of OT (1.5 hours weekly x 40 weeks x 2 years, at a rate of $180 per hour, to be scheduled at the parent’s discretion, not to expire until 2.5 years from the date of this Order;
• • Funding for 40 hours of AT training for the student (1 hour weekly x 40 weeks x 1 year), at a rate of $180 per hour, to be scheduled at the parent’s discretion, not to expire until 18 months from the date of this Order;
• • Funding for 40 hours of AT training for the parent (1 hour weekly x 40 weeks x 1 year), at a rate of $180 per hour, to be scheduled at the parent’s discretion, not to expire until 18 months from the date of this Order;

IT IS FURTHER ORDERED that the District shall provide the student with the recommended AT device, loaded with the programming and software recommended, within 30 days of the date of this order; and

IT IS FURTHER ORDERED that the New York City Department of Education is directed to fund a Functional Behavior Assessment, and if necessary a Behavior Intervention Plan, to be conducted by a NY State LBA selected by the parents, who shall be paid at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order; and

IT IS FURTHER ORDERED that the CSE is to reconvene within 30 days of the completion of all independent educational evaluations and develop an IEP for the student, classifying the student as Other Health Impairment, or other appropriate classification, supported by the evaluative data collected and recommend an appropriate program with related services consistent with the recommendations (frequency and duration) of the IEEs.

DATED: SO, ORDERED

11/29/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Teril Holston, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record are either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

11/29/2022 /s/ Teril Holston

Teril Holston, Esq., IHO

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

Exhibit

Number Exhibit

Date

Number of Pages

1 Initial Referral to CSE

07/30/21

1

2 Prior Written Notice Package

10/12/21

4

3 Ineligible for Special Education Services

10/07/21

9

4 Initial Review Attendance Page

10/7/21

1

Exhibit

Number Exhibit

Date

Number of Pages

A Demand for Due Process Hearing

02/16/22

20

B Neuropsychological Evaluation

09/16/22

34

C Occupational Therapy Evaluation

09/12/22

16

D Speech/Language Evaluation

09/12/22

16

E Assistive Technology

09/12/22

19

F NYC DOE Social History

06/08/22

4

G NYC DOE Teacher Report Form

06/07/22

3

H Letter from REDACTED Learning Specialist

04/12/22

1

I Occupational Therapy Evaluation

09/16/21

9

J Psychoeducational Evaluation

09/11/21

13

K Report from Dr. REDACTED, OD

08/27/21

1

L Teacher Progress Report

08/18/21

3

M NYC DOE Social History

08/19/21

4

N School Report 2020-2021 re: Academic Supports

Undated

2

O 2019-2020 Learning Profile

Undated

1

P Neuropsychological and Educational Assessment

Fall 2019

26

Q Learning Support History 2019-2020

Undated

2

R Visual Information Processing Evaluation

Undated

5

S NYC DOE Ineligibility Determination

10/07/21

10

T Compensatory Service Plan

09/24/22

34

U Affidavit of REDACTED

09/24/22

4

V Resume of REDACTED

Undated

2

W Resume of REDACTED

Undated

4

X Affidavit of Dr. REDACTED

09/29/22

6

Y Curriculum Vitae of Dr. REDACTED

Undated

2

Z Affidavit of Parent

09/28/22

4