Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 226784

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

Hearing Requested By: Parent

Dates of Hearing: July 7, 2023 and August 31, 2023 Record Closed Date: August 31, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the July 7, 2023 Hearing

For the [REDACTED] None

For the Parents:

[REDACTED], Attorney Awaiting Admission, for Parent

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent Parent

Names and Titles of Persons who appeared at the August 31, 2023 Hearing For the [REDACTED] [REDACTED], Esq., Hearing Representative

For the Parents:

[REDACTED], Attorney Awaiting Admission, for Parent

[REDACTED], Esq., Attorney for Parent

[REDACTED], Parent Parent

[REDACTED], Interpreter

[REDACTED], Interpreter

I. Introduction and Procedural History

On June 6, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of [REDACTED] ("Student") brought by her Parent (“Parent” or “Parents”). Numerous conferences were held in an attempt to resolve the issues. Hearings were held on July 12, 2023 and August 31, 2023. The [REDACTED] (“[REDACTED]”) was represented by [REDACTED], Esq. and Parent was represented by [REDACTED], Attorney Awaiting Admission, [REDACTED], Esq., and [REDACTED], Esq. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective August 31, 2021.

II. Background

Student presently attends [REDACTED], a New York State approved non-public school. (Exh. A). Parent filed a due process complaint on or about June 3, 2022 alleging a violation of Student’s right to a Free and Appropriate Public Education (“FAPE”) for the 2022-2023 school year. Parent is seeking, as relief, pendency, after school services, independent evaluations, and compensatory services. A pendency agreement, based on an unappealed Findings of Fact and Decision was entered into on or about June 8, 2022. (Exh. C). A pendency hearing was held, and a pendency order issued to update the services. The pendency agreement provided for tuition for a twelve-month program at the non-public school, ten hours per week of home-based ABA, one hour per week of Board-Certified Behavior Analyst (“BCBA”) supervision, and one hour per week of Parent Counseling and Training (“PCAT”) for a twelve-month school year. (Exh. C). Parent’s amended due process complaint on or about June 7, 2023, seeking compensatory education services for speech and language therapy and ABA services not provided pursuant to the pendency agreement. (Exh. B). Student was provided the requested services under the pendency agreement for the entire 2022-2023 school year, and the remaining issues for hearing concern compensatory services for the services ordered and/or agreed upon pursuant to pendency, as well as Independent Educational Evaluations (“IEE”). There were two days of hearing, including the pendency hearing. The [REDACTED] submitted evidence but did not otherwise defend the relevant IEP. Parent provided direct testimony by affidavit.

III. Discussion

FINDINGS OF FACT AND DECISION

FAPE

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

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In Endrew F. Douglas County School District RE-1, 580 U.S. ___, 137 S.Ct. 988 (2017), the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

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

Although the [REDACTED] did submit evidence, it did not have witnesses available for testimony. Parent is not interested in a finding of a denial of FAPE, I will not address the issue. (Tr. 64, 68, 79). However, as the [REDACTED] did not produce witnesses or provide a legal basis for a finding that it met the requirement under the IDEA, the [REDACTED] did not meet its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

COMPENSATORY EDUCATION SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarg ed City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Under the qualitative approach, the examination should focus on the child’s needs; “some Students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Parent requests thirty-six hours of compensatory speech and language therapy. (Exh. L). According to Parent’s uncontroverted evidence, Student did not receive thirty-six hours of speech and language therapy that she was mandated to receive pursuant to the pendency agreement. (Tr.66, 69 and Exh. P). Therefore, Student is entitled to thirty-six hours or individual speech language therapy provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.

Parent also request sixty-nine hours of compensatory ABA therapy services. (Tr. 70, Exh. L and Exh. O). This request was also made based on mandated services not received pursuant to pendency for the 2022-2023 school year. (Tr. 70). Again, Parent has shown that Student was entitled to these services and these services were not provided. Therefore, Student is entitled to a bank of sixty-nine hours of compensatory ABA therapy services, to be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

INDEPENDENT EDUCATIONAL EVALUATIONS

Regarding IEE’s, the IDEA and it’s New York state counterpart provides, 8 N.Y.C.R.R. § 200.5(g); and see 34 C.F.R. § 300.502: (1) Requests by parents. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense. A parent is entitled to only one independent educational evaluation at public expense each time the school district conducts an evaluation with which the parent disagrees.

(i) If requested by the parent, the school districts hall provide to parents, information about where an independent educational evaluation may be obtained, and the school district’s criteria applicable for independent educational evaluations, as described in subparagraph (ii) of this section.

(ii) The criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, shall be the same as the criteria which the school district uses when it initiates an evaluation, to the extent those criteria are consistent with the parent’s right to an independent educational evaluation. A school district may not impose additional conditions or timelines related to obtaining an independent educational evaluation at public expense.

(iii) If a parent requests an independent educational evaluation at public expense, the school district may ask for the parent’s reason why he or she objects to the public evaluation.

(a) The explanation by the parent in subparagraph (iii) of this paragraph may not be required and the school district may not unreasonably delay either providing the independent educational evaluation at public expense or filing a due process complaint notice to request a hearing to defend the public evaluation.

(iv) If a parent requests an independent educational evaluation at public expense, the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria.

Parent requests three evaluations, including a neuropsychological evaluation, a speech-language evaluation and a vocational evaluation, with an ABA skills component. Parent requested these evaluations by email. (Exh. H). Parent again requested these evaluations in her amended due process complaint. (Exh. B). The [REDACTED] alleges that the request for a speech-language evaluation^[1] and the neuropsychological evaluation has been resolved pursuant to a resolution agreement, and that these evaluations are now scheduled. (Tr. 65). However, the [REDACTED] provided no documentation or witness testimony to support its claim. Additionally, the [REDACTED] claims that the vocational assessment has been conducted. Again, no proof regarding these claims was provided. Additionally, Parent alleges that the vocational assessment was not completed with an ABA skills component, a specific request made by the Parent so that Student can build necessary vocational skills. (Tr. 79). While there may be some questions regarding whether the requested speech language therapy evaluation and neuropsychological evaluation has been conducted, it is clear from the record that Student has not received the specifically requested vocational assessment with ABA skills component. Therefore, I order the [REDACTED] to fund an independent vocational assessment with an ABA skills component, to be conducted by a licensed and/or certified evaluator of Parent’s choice, to be paid at a reasonable market rate. However, the [REDACTED] must fund an independent speech language evaluation and an independent neuropsychological evaluation if the evaluations offered pursuant to the resolution agreement have not been commenced by the date of receipt of this Findings of Fact and Decision.

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The [REDACTED] shall fund a bank of thirty-six hours of compensatory speech and language therapy and sixty-nine hours of compensatory ABA therapy hours. These compensatory services shall be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.

2. The [REDACTED] shall fund Independent Educational Evaluations, unless already commenced by the date of receipt of this Findings of Fact and Decision pursuant to the terms of the resolution agreement. The evaluations are to be conducted by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate and shall include:

a. A neuropsychological evaluation b. A speech language therapy evaluation

3. The [REDACTED] shall fund an Independent Educational Evaluation in the form of a vocational assessment, with an ABA skills component. The evaluation shall be conducted by a licensed and/or certified evaluator of Parent’s choice at a rate not to exceed reasonable market rate.

Dated: September 13, 2023

AUDREY DANIEL, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS ADMITTED AT HEARING

[REDACTED]

EXHIBIT DATE DESCRIPTION NO.

NO. OF

PAGES

1 5/13/22 IEP 18 2 6/1/22 PWN [bilingual] 8 3 11/29/19 Psychoeducational 6 4 12/1/21 Functional Behavioral Assessment 9 5 5/13/22 IEP [Minutes] 1 6 Various Progress Reports 6 7 Various Progress Reports 2d Quarter 6

Parent

# of Date Pages Exhibit Description

A Individualized Education Program (IEP) 2022 - 2023 5/13/2022 30

B Amended Individualized Education Program (IEP) 2022 –

10/20/2022 30

2023

C 2022 - 2023 Pendency Agreement 6/8/2022 2

D Email from [REDACTED] IEP Meeting 5/6/2022 2

E September - December 2022 [REDACTED] Quarterly

12/23/2022 7

Progress Report

F January - March 2023 [REDACTED] Quarterly Progress

3/31/2023 7

Report

G April - June 2023 [REDACTED] Quarterly Progress

6/23/2023 5

Report

H Email from [REDACTED], re Evaluation Request for 4/3/2023 5

Student

I Email from [REDACTED]., re Evaluation for Student 6/14/2023 2

J Dept. of Educ. Prior Written Notice of Reevaluation 5/18/2023 10

K /30/2022 17

L Amended Due Process Complaint 6/7/2022 20

M Individualized Education Program (IEP) 2016 – 2017 3/3/2016 16

N Email from [REDACTED], re [REDACTED] ABA 3/7/2023 2

O Combined Invoices for [REDACTED] 01/23-06/23 21

P Compensatory Hours Calculations 2022-2023 8/24/2023 1

Q Testimony of [REDACTED] Zheng 8/24/2023 13

Impartial Hearing Officer

None

Footnotes

[1] Parent requested a speech-language evaluation with assistive communicative technology at hearing, but admittedly did not request this additional component prior to hearing, and the DOE objected to this additional request. (Tr. 77). As the DOE was not put on notice, I agree with the DOE.