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Case Number: 573196 – NYC: 226503
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District #
[REDACTED]
Impartial Hearing Officer: DI’INDRA FORGENIE-DHANANTWARI
Date of Filing: 05/18/2023
Hearing Requested by: PARENT
Date of Hearing: 12/5/22 & 12/21/22
Record Close Date: 03/30/2023
Date of Decision: 03/30/2023
BACKGROUND
On May 24, 2022, I was appointed as the Impartial Hearing Officer (“IHO”) to conduct an impartial due process hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 United States Code, § 1415(f)(1), Article 89 of the New York State Education Law, and Part 200 of the Regulations of the Commissioner of Education, concerning a dispute between the Parent of Student attending a New York City Public School (“School”) and the New York City Department of Education (“DOE/District”). This matter was initiated by the Parent’s filing of a Due Process Complaint (“DPC”) on May 18, 2022. 1 Parent alleges that the DOE denied Student a free and appropriate public education (“FAPE”) for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years.[2] As a remedy for this failure, Parent is seeking the following, inter alia 3:
1. 400 hours of academic tutoring and executive functioning coaching by Service Provider, or a similarly qualified independent provider of Parents’ choosing, at a rate of $150 per hour; and
2. 180 hours of compensatory counseling by an independent provider of Parents’ choosing at a reasonable market rate.
A pre-hearing conference was held on June 22, 2022. An IEE hearing was held on July [1], 2022 and July 12, 2022. A July 14, 2022 Interim Order on IEEs was issued in favor of the Parent granting Parent’s request for a neuropsychological evaluation and psychiatric evaluation.
On July 18, 2022 the DOE filed a Motion to Dismiss (“MTD”) claiming the 2018-2019 and 2019-2020 school years where time barred under the statute of limitations (“SOL”). On July 27,
IHO Ex. I
2022 Parent’s counsel filed a motion in response to the DOE’s MTD. The undersigned reserved decision on the MTD until after the hearing on the merits.
The DOE indicated at hearing that it would be defending FAPE for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years and maintain its argument that the 2018-2019 and 2019-2020 school years were time barred.[4] A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision. The record closed on March 30, 2023. The compliance date for issuing a decision in this proceeding is March 30, 2023.
LEGAL FRAMEWORK
IDEA and the New York Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).
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 v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not 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). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; 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 v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). When a school district fails to offer a FAPE, compensatory educational services may be awarded as an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014];
P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008; see also Doe v. E. Lyme, 790 F.3d 440, 456-57 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).
Accordingly, an award of compensatory education should 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, 546 F.3d at 123; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008]; Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007]; Reid, 401 F.3d at 518).
A compensatory education award is a flexible equitable remedy that is often 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). However, the Second Circuit has affirmed the flexible approach adopted by Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) and declined to specify any particular approach: “[T]he Second Circuit has not articulated a test for determining how such awards are calculated. See, e.g., P. v. Newington, 2008 WL 4509089 (affirming compensatory education as appropriate without discussion of how award was calculated)”. Student X v. New York City Dep’t of Educ., 51 IDELR 122 (E.D.N.Y. 2008).
New York State law has placed the burden of production and persuasion at an impartial hearing on the District. Additionally, while allocating an evidentiary burden to the District, a parent nevertheless has a responsibility to identify the compensatory education remedy sought in the same fact-specific manner, and it is insufficient to assert general statements that a student is entitled to an unspecified amount of unidentified compensatory educational services.
MOTION TO DISMISS 2018-2019 AND 2019-2020 SCHOOL YEARS
The IDEA provides an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child, or the provision of FAPE that occurred not more than two years before the date the petitioner “knew or should have known” about the alleged action that forms the basis of the complaint.” Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir. 2008), quoting 20 U.S.C. §1415(b)(6)(B). New York State has affirmatively adopted the two-year period found in the IDEA and the State Review Office (SRO) applies the same standard. Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j)(1)(i); See, Application of a Child with a Disability, Appeal No. 06-086. The former Governor’s Executive Orders, E.O. 202.8 (9 NYCRR 8.202.8) and following, ordered tolling of SOL due to COVID19 beginning on March 20, 2020, and were no longer in effect as of November 4, 2020 as per
E.O. 202.72. 9 NYCRR 8.202.72. 5
New York Education Law §4404(1)(a) establishes two limited statutory exceptions to the IDEA’s two-year statute of limitations. The first exception is limited to circumstances where a school district falsely claims that the alleged problem that forms the basis for the Parent’s complaint has been resolved. See 20 U.S.C. §1415(f)(3)(D)(i); 8 NYCRR §200.5(j)(1)(i). The second exception requires evidence that the DOE withheld specific information that it was required to provide under the IDEA and that resulted in the parent’s unknowing waiver of rights. See 20 U.S.C. §1415(f)(3)(D)(i); 8 NYCRR §200.5(j)(1)(i); C.H. v. Northwest Indep. Sch. Dist., 815 F. Supp. 2d 977, 986 (E.D. Texas 2011); R.B. V. Dep’t of Educ., 2011 WL 4375694, at *6-7 (S.D.N.Y. Sept. 16, 2011).
2018-2019 School Year
The DPC states a November 21, 2017 IEP was created for the Student which was Student’s operative IEP for the start of the 2018-2019 school year and further claims the DOE failed to hold a timely annual review. 6 The November 2017 IEP had a projected annual review date of November 22, 2018. 7 Based on the evidence presented, the Parent knew or should have known (“KOSHK”) the District violated FAPE for the 2018-2019 school year when it failed to 5 EO 202.8 provided for tolling until April 19, 2020. EO 202.14 “continu[ed] the suspensions and modifications of law, and any directives… for thirty days until May [7], 2020.” EO 202.28 identified previously suspended statutes for reinstatement, and noted that all other suspensions and modifications of law would be continued “for thirty days until June [6], 2020.” EO 202.38 extended this provision of EO 202.28 until July 6, 2020. EO 202.48 extended this provision of EO 202.38 until August 5, 2020. EO 202.55 and 202.55.1 extended this provision of EO 202.38 until September 4, 2020. EO 202.60 extended this provision of EO 205.55 and 202.551 until October 4, 2020. EO 202.67extended this provision of EO 202.60 until November 3, 2020 and also stated “for any civil case, such suspension is only effective until November 3, 2020, and after such date any such time limit will no longer be tolled.” EO 202.72 noted “the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding as prescribed by the procedural laws of the state, including but not limited to the family court act, the civil practice law and rules, the court of claims act, the surrogate’s court procedure act, and the uniform court acts, or by any statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby no longer in effect as of November 4, 2020.” hold a timely annual IEP review on November 22, 2018. Two years and the relevant Covid tolling pursuant to the E.O. brings the SOL to July 17, 2021, prior to the filing of the DPC. [8]
The DPC also claims several deficiencies with the December 10, 2018 IEP which was Student’s operative IEP for the second half of the 2018-2019 school year. Parent claims the December 2018 IEP lacked sufficient evaluative information, provided no academic goals, and unjustifiably reduced speech and language therapy, inter alia.[9] The undersigned agrees with the District that the Parent knew or should have known of these deficiencies in the December 10, 2018 IEP when the Parent received a copy of the IEP with Prior Written Notice on or about December 14, 2018.
Parent’s counsel alleges that the DOE did not provide evidence that the Parent received the procedural safeguards however the hearing record does not support such a finding. The PWN contained information directing the Parent on how to obtain the procedural safeguards and contained information on the Parent’s right to disagree with the IEP and who the Parent should contact if a disagreement occurred. I find that the PWN provided by the DOE for the 2018-2019 school year was sufficient to meet the DOE’s obligation of providing the Parent with the requisite procedural safeguards. The Parent acknowledged in her testimony that she did in fact receive a copy of the December [10], IEP 10 and the District provided evidence that the December 10, IEP was mailed to the Parent along with PWN.[11] Therefore, it cannot be logically concluded that the Parent received the IEP and not PWN. Additionally, when the Parent was asked at hearing if she received PWN after the December 2018 IEP meeting, she stated “I believe so” 12 further proving that the Parent received PWN as alleged by the DOE. Given the presumption of mailing,[13] the Parent knew or should have known that the DOE violated FAPE on December 14, 2018. Two years and the relevant Covid tolling pursuant to the E.O. brings the SOL to August [12], 2021,[14] prior to the filing of the DPC. Given the above findings, the undersign finds that the Parent is time barred from bringing claims against the District for the 2018-2019 school year and no exception to the SOL applies.
2019-2020 School Year
As stated previously, the Parent knew or should have known the December 10, 2018 IEP was deficient. The December 2018 IEP was the operative IEP at the end of the 2018-2019 school year and remained in effect at the beginning of the 2019-2020 school year.[15] As such, the Parent “knew or should have known” (“KOSHK”) on September 5, 2019, at the start of the 2019-2020 school year, the DOE violated FAPE. I disagree with the District’s finding that if the KOSHK date is September 5, 2019 the SOL date is April 22, 2022. I find instead the SOL date is August 3, 2022. If the KOSHK date is September 5, 2019 under normal circumstances the SOL would be September 5, 2021. However, under the E.O. the time was tolled from March 20, 2020 to November 4, 2020. The clock was tolled for 241 days. September 5, 2021 plus 241 days brings the SOL date to August 3, 2022. Therefore, the Parent would have needed to filed the DPC on or before August 3, 2022. Here, the Parent filed the DPC on May 18, 2022 which was before the SOL expired on August 3, 2022. Given the above finding, the Parent’s case for the 2019-2020 school year is not time barred.
DPC Lookback Period
Parent’s Counsel argues that the DPC lookback period should extend back two years and 241 days from the May 18, 2022 filing of the DPC bringing the SOL lookback period to September 13, 2019. However, the undersigned finds fault with this calculation. The only time tolled during the lookback period of May 18, 2022 to May 18, 2020 is 170 days (Time tolled per E.O. from May 18, 2020 to November 4, 2020). Therefore, the SOL lookback period for the DPC is November 30, 2019 (May 18, 2020 minus 170 days). Based on this calculation, the Parent is time barred from bringing any claims or seeking relief from the DOE for FAPE violations before November 30, 2019.
FINDINGS OF FACT AND DECISION
FAPE
At the time of the DPC filing Student was an [REDACTED]-year-old classified by the DOE as a student with a Speech or language Impairment, in the fifth grade, attending Public School for the 10 month school year.[16] The Student attended Public School for the 2019-2020, 2020-2021 and 2021-2022 school years. [17]
School Psychologist
The DOE presented the testimony of the School Psychologist. The School Psychologist testified credibly in sum and substance that she is currently employed as a bilingual school psychologist at the public school.[18] The School Psychologist has been employed by the DOE for five years and has worked for the Public School for four years.[19] The School Psychologist graduated with a Bachelor’s degree in History and Psychology and a Masters degree in Psychology. School Psychologist is currently certified by the State of New York as a school psychologist.[20] As a school psychologist her duties include creating IEPs for students in kindergarten to eight grade.
School Psychologist participated in the December 10, 2018 IEP meeting as the school psychologist.[21] Also at the December 2018 IEP was a special education teacher, general education teacher, speech/language therapist, and Parent.[22] At the start of the IEP meeting the Parent’s due process rights were explained.[23] In formulating the IEP recommendations, the team reviewed documents including but not limited to a psychological update from November 2, 2018, a classroom observation from November 2, 2018, and a teacher report from December 10, 2018. The aforementioned reports as well as teacher input provided sufficient, detailed, and contemporaneous information about the Student’s disability, issues, needs, challenges, strengths, and abilities.[24] After a review of the Student’s records the December 2018 IEP team recommended Integrated Co-Teaching Services (“ICT”), counseling twice a month for 30 minutes in a group of three, and speech language therapy four times a month for 30 minutes in a group of three.[25] In the School Psychologist’s professional opinion, the recommendation, in conjunction with the supports and management needs, and goals recommended in the IEP, would allow Student to achieve meaningful academic and social growth and progress in the least restrictive environment. [26]
For the 2021-2022 school year the School Psychologist participated in the October 27, 2021 IEP meeting as the school psychologist.[27] Other participants in the October 2021 IEP were a special education teacher, general education teacher, two school counselors, and Parent.[28] The October 2021 IEP reviewed documents including but not limited to a social history and classroom observation.[29] The documents provided the team with a sufficient understanding of Student’s disability, issues, needs, challenges, strengths, and abilities.[30] The October 2021 IEP recommended Integrated Co-Teaching Services (“ICT”), counseling once a week for 40 minutes in a group of three students. In the School Psychologist’s professional opinion, this recommendation, in conjunction with the supports and management needs, and goals recommended in the IEP allowed Student to achieve meaningful academic and social growth and progress in the least restrictive environment. Additionally, the Student’s IEP goals and management needs were specific, measurable, and personalized to target Student’s academic, social, and emotional deficits. [31]
School Psychologist participated in the December 14, 2021 IEP as the school psychologist and district representative.[32] The December 2021 IEP also included a special education teacher, two school counselors, and the Parent.[33] The December 2021 IEP team recommended Integrated Co-Teaching Services (“ICT”) and counseling once a week for 40 minutes in a group of three students. In the School Psychologist’s professional opinion, this recommendation, in conjunction with the supports and management needs, and goals recommended in the IEP, allowed the Student to achieve meaningful academic and social growth and progress. According to the School Psychologist, the Student’s IEP goals and management needs are specific, measurable, and personalized to target and address Student’s academic, social, and emotional deficits[34] and the recommendation was appropriate for Student.[35] After the December 14, 2021 IEP meeting, Parent requested an additional reevaluation. The IEP team requested a neuropsychological, psychoeducational, and psychiatric evaluation and authorizations were provided to Parent. [36]
School Counselor
The School Counselor testified credibly in sum and substance to the following: The School Counselor has been employed by the DOE for approximately 20 years.[37] School Counselor has been a school counselor with the DOE since 2014 and has worked at the Public School for approximately 16 years.[38] School Counselor graduated with a Bachelor’s degree in Human Ecology and a Master’s in Education and School Counseling and is currently a certified school counselor in the State of New York.[39] In her role, the School Counselor, ensures the social-emotional growth and general well-being of students, provides school counseling services, and participates in IEP meetings.[40] School Counselor provided Student counseling for the 2018-2019, 2019-2020, and 2020-2021 school years.[41] School Counselor participated in the November 24, 2020 IEP and served as the school counselor and district representative at the meeting.[42] At the November 2020 IEP at the recommendation of the Speech Provider Student was discharged from speech and language therapy based on significant progress.[43] The November 2020 IEP team recommended ICT and counseling four times a month for 40 minutes in a group of three.[44] In School Counselor’s professional opinion, the team’s recommendation was appropriate. [45]
Director of Service Provider (“Director”)
Director testified credibility in sum and substance to the following: Director is the Founder and Director of the Service Provider.[46] Director has a Doctorate degree in Education, a Master’s degree in Special Education, and a Bachelor’s of Arts degree. Service Provider provides 1:1 coaching to all types of special education students.[47] Instructors who provide tutoring are trained in the Orton Gillingham technique.[48] The Director reviewed the Student’s education records including the Student’s IEPs and evaluations. The Director’s review of the Student’s records revealed the Student’s struggles with writing, attention, and executive functioning.[49] The Director also conducted an assessment of the Student on September 29, 2022 which determined the Student has deficits that require remediation through 400 hours of academic tutoring and executive functioning coaching. [50]
Neuropsychologist
The Neuropsychologist testified credibly in sum and substance: Neuropsychologist is a New York State licensed psychologist with a Doctorate in Psychology, Master’s of Science, and a Bachelor’s in Psychology. Neuropsychologist has been in private practice since 2010 and conducts neuropsychological, psychological, and psychoeducational evaluations for children ages three years to young adults including children with Autism, ADHD, anxiety, and other social emotional issues, specific learning disorders in reading and writing, and language disorders.[51] Neuropsychologist has conducted or supervised over 1,000 neuropsychological evaluations over the course of her career. [52]
Neuropsychologist conducted a comprehensive evaluation of Student with formal testing on September 21, 2022 and September 22, 2022 which included a review of all the Student’s educational records, a parent interview, classroom observation, and teacher questionnaire. [53] The Student was referred to Neuropsychologist to assess Student’s “cognitive, academic, neuropsychological, and social-emotional strengths and weaknesses, to provide diagnostic clarification and insight into his learning style, and to assist with appropriate educational and treatment planning. Current concerns include anxiety, obsessive compulsive behaviors, picky eating, and difficulties with making new friends.”[54] At the time of the evaluation the Student was diagnosed with Obsessive Compulsive Disorder (“OCD”). [55]
In March 2020 the Public School turned to a remote learning model as a result of the Covid-19 pandemic. The Student participated in a hybrid learning model attending school remotely and in person.[56] During the 2020-2021 school year the Student’s anxiety significantly increased despite this the Student’s IEP was not updated until November 2020. Review of records and consultation with Student revealed during this time, in addition to ongoing anxiety, Student struggled with speech and language, writing, and aspects of executive functioning. In September 2021 the Student resumed full time in person learning for his 5th grade year and his OCD behaviors increased significantly during the fall of 2021.[57] The Student experienced poisoning/contamination fears that resulted in him feeling extremely distressed and unable to attend school at times. Furthermore, Parent reported that even when he was in school, these fears left him unavailable for learning, and he was unable to meaningfully engage in his mandated school-based services. [58]
Neuropsychologist reviewed the IEPs created for Student dated November 21, 2017, December 10, 2018, November 24, 2020, October 27, 2021, and December 14, 2021. Based on Neuropsychologist’s review the IEPs were not appropriate because Student demonstrated anxiety around school-based tasks and social interactions as well as a lack of coping skills to deal with these issues as early as second grade. Despite these clear signs, the DOE mandated only a minimal level of counseling for Student during these years. Student should have received a minimum of one individual and two small group counseling sessions per week during the school years at issue. Counseling should have been rooted in cognitive-behavioral therapy ("CBT"), as that is an evidence-based method for treating anxiety. The IEPs do not mandate any pointed, individualized supports, such as SETSS, for Student's deficits in writing despite the fact that Student struggled with writing-based tasks throughout elementary school and particularly since the fourth grade. Student requires multi-sensory, evidence-based remediation in writing from a learning specialist on at least a weekly basis in order to address his deficits in writing and keep pace with the curriculum. The IEPs do not mandate any pointed, individualized supports for Student's deficits in executive functioning despite the fact that Student demonstrated issues in these areas from an early age. Neuropsychologist believes Student requires, individual support from a learning specialist on at least a weekly basis in order to address his executive functioning deficits. [59]
COMPENSATORY EDUCATION
After a review of the record, I agree with the findings of the Neuropsychologist and Director that the programs offered to Student during the school years at issue fell short of the supports he required to make meaningful progress in the areas of writing and executive functioning. As a result, Student is behind his peers in these areas and below the levels he would have attained had he received appropriate supports.
As per the testimony of the Neuropsychologist, given the ongoing difficulties Student has experienced with written expression that have not appropriately been addressed through the programming included in his IEPs, Student requires weekly support at school (i.e., SETSS), as well as via additional compensatory services to address his ongoing difficulties with writing mechanics, written organization, and writing stamina.[60] Neuropsychologist reviewed the report of Director recommending that Student receive 400 hours of intensive one-on-one multi-sensory
The undersigned finds the DOE failed to provide the Student with a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years and Student is entitled to the requested relief.
2019-2020 School Year
The December 2018 IEP notes the Student engaged in disruptive behavior such as continuously pushing his chair back and forth to avoid approaching the teacher, engaged in anxious behavior, and had difficulty verbalizing what was wrong. Parent reported at that meeting Student showed signs of anxiety and depression.[61] Yet the IEP team did not conduct an FBA and only provided counseling twice a month for 30 minutes which was not enough support given the Student’s executive functioning needs. The progressive inappropriateness of the program recommendations is evidenced by the Student’s continued social-emotional decline over the course of the school years at issue.
2020-2021 School Year
The December 2019 IEP noted the Student showed signs of panic by mumbling loudly, voiced frustration, would cry and tense up his body, still struggled to communicate his feelings, refused to work with partners, and would not voice his ideas when working in a group. The Parent at that meeting informed the team that anxiety and nervous behaviors were escalating. [62] Despite these growing executive functioning concerns and concerns over the Student’s social emotional well-being the December 2019 IEP only recommended counseling 2 times a month for 30 minutes. 2021-2022 School Year The November 2021 IEP noted the Student’s writing ability was below grade level in most areas, Student tested as “at-risk” for anxiety, was unable to stay on task without prompting, had a hard time completing his work independently, still showed signs of panic by mumbling loudly, tensing up, and crying, and presented as anxious when interacting with peers. Despite these issues the IEP only recommended counseling 4 times per month for 40 minutes. [63]
The October 2022 IEP noted the Student struggled to stay organized, became frustrated in the classroom, and the Student’s writing skills were still below grade level. The Parent expressed the Student had difficulties with writing and avoided tasks involving writing. The Student became obsessed with wiping down everything at school, used hand sanitizer to the point his hands were red and raw and became extremely emotional due to anxiety over bugs and germs. Despite these escalating and concerning behaviors the IEP only recommended counseling 1 time per week for 40 minutes in a group of 2. Additionally, the IEP did not sufficiently address the Student’s writing deficits as there did not appear to be any noted improvement in that area of concern.
I agree with the conclusions of the Neuropsychologist that supports listed in the Student’s IEPs throughout the school years at issue did not provide enough support to the Student and as a result caused the Student to be unable to access education in the Public School. As evidenced in the IEPs Student displayed anxious tendencies from an early age, and yet the DOE offered only a minimal level of counseling throughout the school years at issues and the IEP did not sufficiently address the Student’s writing deficits as the Student did not improve and began avoiding tasks involving writing.
Since the DOE bore the burden of proving it provided Student a FAPE, based upon the hearing record, I find that Student was denied a FAPE for the 2020-2021 and 2021-2022 school years.
I find based on the hearing record that the Student is entitled to 400 hours of academic tutoring and executive functioning coaching by Service Provider. The 400 hours was derived from Director using the quantitative approach, five hours per week x 36 weeks x 2 years= 400 hours. I find the hours to be reasonable in light of the DOE’s failure to provide the Student with a FAPE for the school years at issue.
I find based on the hearing record that not all of the requested180 hours of compensatory counseling is compensable. The Neuropsychologist testified that the number of hours were derived using the quantitative approach, one hour per week of counseling for each year the DOE failed to provide the Student with a FAPE [64]. All of the Student’s IEPs indicate the Student is a 10 month Student therefore one hour per week of counseling x 36 weeks x 3 years results in an award of 108 hours of compensatory counseling. However, because the DPC was filed on May 18, 2022 and the lookback period starts on November 30, 2019 the Parent would not be entitled to compensatory counseling prior to that date.
ORDER
A. The DOE shall fund 400 hours of 1:1 academic tutoring and executive functioning coaching by Service Provider, or a similarly qualified independent provider of Parents’ choosing at a rate not to exceed $150.00 per hour, with invoices to be directly paid to Service Provider within 30 days of submission. Said tutoring hours shall be scheduled at the Parent’s discretion and shall expire within three years of this Order;
B. The DOE shall fund 108 hours of compensatory counseling, by an independent provider of Parents’ choosing at a reasonable market rate, minus one hour per week from the beginning of the 2019-2020 school year through November 29, 2019. Said counseling hours shall be scheduled at the Parent’s discretion and shall expire within three years of this Order; a.
C. The DOE shall fund transportation, should the Parent require it, to and from the Service Provider in the form of MetroCards for the Parent and Student;
Dated: 03/30/2023
/s/Di’Indra Forgenie-Dhanantwari
Di’Indra Forgenie-Dhanantwari
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.
PARENT EVIDENCE
PARENT DATE DOCUMENT No. Of
A. EXHIBIT Pages Impartial Hearing Request 5/18/22 16 pages
B. Email chain between Parent and DOE 3/17/22 2 pages
C. Email from DOE to Parent with Attachments 4/14/22 15 pages
D. Email chain between Parent and Dr. [REDACTED] 4/18/22 2 pages
E. Email chain between Parent and Dr. [REDACTED] 4/21/22 2 pages
F. Affidavit of Testimony of [REDACTED] 6/28/22 2 pages
I. G NA CV of Dr. [REDACTED] 10 H NA CV of Dr. [REDACTED] 2 Affidavit of Dr. [REDACTED] 7/7/22 2 pages
J. Affidavit of Dr. [REDACTED] 7/7/22 2 pages
K. Psycho-Educational Evaluation 11/02/18 6 pages
L. Psychological Evaluation Report 11/09/21 6 pages
M. Intake Assessment 11/09/21 6 pages
N. – Email Chain between Parent and School 1/24/22 12/21/21 4 pages
O. – Email Chain between Psychologist and School 2/16/22 2/15/22 2 pages
P. – Email Chain between Psychologist and School 2/18/22 2/16/22 2 pages
Q. – Email Chain between Parent and School 3/2/22 2/16/22 4 pages
R. Letter from Psychologist Undated 2 pages
S. Evaluation Letter from [REDACTED] 09/30/21 1 page
T. Dr. [REDACTED]’s C.V. Undated 3 pages
U. Psychiatric Evaluation 09/26/22 7 pages
V. Neuropsychological Evaluation 10/10/2022 25 pages
W. Affidavit of Testimony of Dr. [REDACTED] 11/23/22 5 pages
X. Affidavit of Testimony of Dr. [REDACTED] 11/22/22 3 pages
Y. Affidavit of Testimony of [REDACTED] 11/28/22 6 pages
DISTRICT EVIDENCE
1. WITHDRAWN District
2. Individualized Education Program 11/21/2017 22 pages District
3. Prior Written Notice 11/30/2017 4 pages District
4. Individualized Education Program 12/10/2018 21 pages District
5. Prior Written Notice 12/11/2018 4 pages District
6. Social History Package – Consent 10/21/2016 1 page District
7. Individualized Education Program 12/3/2019 23 pages District
8. Prior Written Notice 12/17/2019 4 pages District
9. Attendance 12/3/2019 1 page District
10. Individualized Education Program 11/24/2020 23 pages District
11. Prior Written Notice 12/1/2020 4 pages District
12. Individualized Education Program 10/27/2021 20 pages District
13. Attendance 10/27/2021 1 page District
14. Prior Written Notice 10/29/2021 4 pages District
15. Individualized Education Program 12/14/2021 25 pages District
16. Prior Written Notice 12/23/2021 4 pages District
17. Attendance 11/21/2017 1 page District
18. WITHDRAWN District
19. Classroom Observation 11/2/2018 2 pages District
20. Student Progress Report 12/10/2018 3 pages District
21. Teacher Progress Report 10/23/2018 2 pages District
22. Remote Learning Plan 4/3/2020 2 pages District
23. Remote Learning Plan 8/18/2020 2 pages District
24. Program Adaptations Document 10/8/2020 4 pages District
25. Related Services Adaptations 10/2/2020 3 pages District
26. Related Service Adaptations 10/7/2020 3 pages District
27. Teacher Report 11/17/2020 2 pages District
28. Meeting Minutes 10/27/2021 2 pages District
29. Special Education Recovery Services 11/11/2021 3 pages District
30. Behavior Intervention Plan 12/9/2021 5 pages District
31. BIP Considerations 12/9/2021 3 pages District
32. Meeting Minutes 12/14/2021 2 pages District
33. Functional Behavioral Assessment 12/9/2021 6 pages District
34. FBA Considerations Undated 3 pages District
35. Classroom Observation 9/22/2021 1 page District
36. Student Progress Report 10/26/2021 5 pages District
37. Teacher Report 10/14/2021 3 pages District
38. Social History Update 9/21/2021 2 pages District
39. Affidavit [REDACTED] 10/6/2021 5 pages District
40. Affidavit [REDACTED] 10/6/2021 3 pages District
IHO EVIDENCE
I. Parent’s Requested Relief Undated 1 page IHO
II. Raw testing from Director Undated 4 pages IHO
Footnotes
[1] See Ex. A.
[2] Id.
[4] 12/5/22 Tr. 39:22 – 40:15
[6] Ex. A-2
[7] Ex. 2
[8] November 22, 2018 to November 22, 2020 + 241 days. Time tolled from March 20, 2020 to November 4, 2020 as per E.O.
[9] Ex. A 2-3
[10] 12/5/22 Tr. 71:21-25
[11] Ex. 5
[12] 12 12/5/22 Tr. 72:1-3
[13] For the purposes of determining the SOL, it should be assumed it takes at most three days for mail to arrive at Parent’s mailing address within NYC. See, e.g., Payan v. Aramark Management Services Ltd. Partnership, 495 F.3d 1119, 1124 (2007) (Most courts, including the Supreme Court, have presumed a receipt date of three days after *1125 EEOC letter issuance.) (internal citations omitted).
[14] December 14, 2018 to December 14, 2020 + 241 days. Time tolled from March 20, 2020 to November 4, 2020 as per E.O.
[15] The December 10, 2018 IEP had a projected annual review date of December 11, 2019.
[16] Id.
[17] Ex. A at 2, 3, 5, & 6
[18] Ex. 39-1
[19] Id.
[20] Id.
[21] Ex. 39-2
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id. & Ex. 39-3
[27] Ex. 39-3
[28] Id.
[29] Id.
[30] Id.
[31] Id. & Ex. 39-4
[32] Ex. 39-4
[33] Id.
[34] Id.
[35] Ex. 39-5
[36] Id.
[37] Ex. 40-1
[38] Id.
[39] Id.
[40] Ex. 40-2
[41] Id.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Ex. X-1
[47] Id.
[48] Id.
[49] Ex. X-2
[50] Ex. X 2-3
[51] W-1
[52] Id.
[53] Ex. W-2
[54] Ex. V-1
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Ex. W
[60] Ex. V14 tutoring using multi-sensory instruction to build his written language and executive functioning skills and agree that this represents a reasonable amount of tutoring hours based on Student's academic needs.
[61] Ex. 4
[62] Ex. 7
[63] Id.
[64] Ex. W