NY IHO #228602: New York City... | Special Education Law

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CASE NUMBER: 575890 - NYC: 228602

FINDINGS OF FACT AND DECISION

CASE NUMBER: NYC: 228602

FINDINGS OF FACT AND DECISION

Case Number: 228602

Student’s Name: [Redacted] (“Student”)

Date of Birth: [Redacted] School District: 17

Hearing Requested by: [Redacted] (“Parent(s)”)

Request Date/Date Complaint Filed: 07/05/2022

Date(s) of Hearing: 01/04/2023

Actual Record Closed Date: 01/25/2023

Date of Decision: 02/01/2023

Date of Distribution if Different than Decision Date: same

Hearing Officer: Andrea R. Cohen

Evidence

NYC DOE IHO Andrea Cohen

DOE DISCLOSURE

None

PARENT DISCLOSURE

Letter

Date

Name of Document

Number of Pages

7/5/2022

DPC

5/16/2022

FOFD

7/5/2022

TDN

D 10/15/2020 CPSE IEP 22

E 5/10/2021 IESP 12

F 11/4/2022 Affidavit of Parent 3

G 11/2/2022 Affidavit of [Redacted] 4

H 6/15/2022 Progress Report 7

I Provider Credentials 1

J 7/1/2022 Contract 3 IHO EXHIBITS None

NEW YORK CITY DEPARTMENT OF EDUCATION

IMPARTIAL HEARING OFFICE

In the matter of

Student, [Redacted] a minor, by and through the Student’s Parents,

Petitioners,

- against –

New York City Department of Education

Respondent.

IHO

Final Decision and Order

Andrea R. Cohen

Impartial Hearing Officer

Greetings:

JURISDICTION

This Final Decision And Order in the matter of [redacted] (“Student”) by and through his Parents against the New York City Department of Education is rendered upon consideration of Petitioner’s Due Process Complaint (“Complaint”); prior proceedings in this matter and the federal Individuals with Disabilities Education Act (“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.

INTRODUCTION AND PROCEDURAL HISTORY

INTRODUCTION

This matter was commenced on behalf of Student, a student with a disability, by and through his Parents, on 07/05/2022 by filing the Compliant against the DOE pursuant to the IDEA and New York Law.

Student and his Parent will be referred to collectively as “Petitioners.” The New York City Department of Education will be referred to as the “DOE”.

This matter relates to the 2022/2023 school year. Student is Parentally placed in a non-public school and is eligible for special education services under an IESP. Petitioners allege that for the 2022/2023 school year, the DOE failed to offer to Student a free and appropriate education services plan in that it failed to develop and issue an IESP for Student and failed to implement services for student.

DOE presented no defense as to Petitioners’ allegations relating to its failure to offer to Student a free and appropriate education services plan. The DOE argues that Petitioners have not satisfied their burden to show services demanded were appropriate.

PROCEDURAL HISTORY

This Hearing Officer was appointed to preside over this case on 07/19/2022.

Hearing was conducted on 01/05/2023. It was a closed hearing, Parent entered into evidence exhibits A-J. The DOE entered no documents into evidence.

All hearings were conducted remotely and Covid-19 protocols were observed.

The record was closed on 01/25/2023.

Background

Student has been eligible for special education services and has receive same at least as far back as the 2020/2021 school year when he attended pre-school. This dispute relates to the 2022/2023 school year.

Petitioners’ Position, Relief Sought And Evidence

Student is Parentally placed in a non-public school and is eligible for special education services under an IESP.

Petitioners allege that, for the 2022/2023 school year:

• The DOE failed to provide Student with a FAPE: it failed to appropriately evaluate Student, failed to develop and issue an IESP for Student, and failed to implement services for Student;
• Student requires the following services:
• An Extended School Year;
• Special Education Itinerant Teacher Services 2:1 Direct 9 hours 30-minute sessions: no more than 4 sessions per day;
• Speech-language therapy 1:1 3x30 minutes;
• Occupational therapy 1:1 2x30 minutes;
• Physical therapy 1:1 3x30 minutes.

Petitioners seeks the following remedies:

• A finding that the most recent IESP, dated 5/10/2021, is outdated, expired, and that failure to reconvene to develop a new IESP constitutes a denial of a FAPE;
• The DOE be Ordered to provide to Student the program and services set forth in the 5/16/2022 FOFD;
• To the extent that the DOE fails to provide these services, such services are to be furnished to Student by a private provider of the Parent’s choosing, to be funded by the DOE at the current market rate.
• A bank of compensatory SEIT and Related Services equivalent to any such services missed due to the DOE’s failure to provide such services.

Exhibits

A-H, entered into evidence on 01/04/2023

J, entered into evidence on July 6, 2022

Witnesses –

Petitioners produced two witnesses.

[Redacted], Educational Director (“Director”), of [Redacted] (“Agency”) provided direct testimony by affidavit (Ex. G). Director appeared for cross-examination on 1/4/2023. Her testimony was recorded and is set forth in the transcript commencing on page 90. (“TR 90”).

[Redacted], Parent, provided direct testimony by affidavit (Ex. F). Parent appeared for cross-examination on 1/4/2023. Her testimony was recorded and is set forth in the transcript commencing on page 121. (“TR 121”).

The DOE’s Position, Relief Sought And Evidence The DOE presented no witnesses, exhibits, arguments or closing brief to rebut Petitioners’ assertion that the DOE failed to develop and issue an IESP for Student and failed to implement services for student for the 2022/2023 school year.

The DOE argues that Petitioners failed to show that an ESY was needed to avoid regression and thus such remedy is to be denied; that there is no evidence that parent is liable for payments; and that any award of compensatory services is to be limited to services that have already become due and not provided.

Issues

Whether or not:

• The DOE provided Student with an appropriate IESP for the 2021/2022 school year;
• Services sought by parent are appropriate;
• Petitioners are to be granted an award of reimbursement/direct payment of cost incurred relating to the provision of Special Education Services to Student;
• An award of compensatory services is warranted
• Equitable considerations support a reduction of any remedy awarded.

Statement of Law

FAPE

FAPE - GENERALLY

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[1] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[2]

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for all of the school years at issue, as well as all other issues alleged in the DPC, except for the appropriateness of the private school, to which the Parent bore the burden of proof. ^[3]

A student is provided a FAPE when (a) the board of education complies with the IDEA’s procedural requirements, and (b) provides an IEP that is: “’likely to produce progress, not regression’ and if the IEP affords the student with an opportunity greater than ‘mere trivial advancement.’” ^[4]; is substantively appropriate – i.e., it is reasonably calculated to enable the child to receive educational benefits.^[5]

A district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. ^[6]

Under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. ^[7] Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”) conducted and a behavioral intervention plan (“BIP”) developed for a student. ^[8]

The IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. ^[9] The IEP must be revised to address: 1) any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate; 2) the results of any reevaluation; 3) information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. ^[10]

It is the DOE’s statutory obligation to provide appropriate placement and services recommendations in the IEP. Moreover, it is the DOE’s responsibility to procure the recommended services for the student and offer an actual spot in a specified classroom. ^[11]

The Supreme Court has found that, while deference is due to decisions of school authorities, “A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” ^[12]

An IEP, on its own, does not establish that a FAPE has been offered to a student; instead, “testimony may be received that explains or justifies the services listed in the IEP.” ^[13] A district does not meet its burden of proof to demonstrate that sufficient evaluative material was relied upon in creating the student’s educational program without testimony presented to that effect. ^[14]

Reliance on the views of DOE witness, which were against the clear consensus of the substance of the evaluative materials present at the CSE meeting and the views of student’s evaluators and educational instructors, was error. See A.M. v. New York City Department of Education, 845 F.3d 523 (2d Cir. 2017). Similarly, reliance upon testimony of one DOE representative, who never met student, over evidence by student’s teachers and therapists, “flies in the face of reason” and did not result in a well-reasoned decision by SRO. S.B. v. New York City Department of Education, 117 F. Supp. 3d 355 (S.D.N.Y. 2015). See, also: W.S., individually and on behalf of A.S., v. New York City Dep’t of Educ., 188 F. Supp.3d 293 (S.D.N.Y. 2016) (placement offered by the DOE did not bear a reasonable relation to the needs of student where placement was based on opinion of a DOE representative who had no firsthand knowledge of the student).

A procedural violation alone without a showing that the child’s education was substantively affected, does not establish a failure to provide a FAPE. ^[15]

In matters alleging a procedural violation, an IDEA claim is viable only if those procedural violations affected the student's substantive rights.^[16]

A hearing officer may find that a child did not receive a FAPE only if the procedural inadequacies--

(i) Impeded the child’s right to a FAPE;

(ii) Significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the parent’s child; or

(iii)Caused a deprivation of educational benefit. ^[17]

The LEA must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child provided to, or by, the parents. ^[18]

FAPE - EVALUATIONS

An evaluation means procedures used in accordance with 34 C.F.R. §§ 300.304 through 300.311 to determine whether a child has a disability and the nature and extent of the special education and related services that the child needs.^[19]

In conducting the evaluation, the district must use a variety of tools and strategies to gather relevant functional, developmental, and academic information about the child, including information provided by the parent, to determine whether the child is eligible and, if so, the content of the child’s IEP. ^[20] The evaluation must be sufficiently comprehensive to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category. ^[21]

As noted above, under the IDEA, a district may be required to consider special factors in the development of a student’s IEP, including whether behavior impedes his learning or that of others. ^[22] Where such behavior may impede learning, the district may consider having a functional behavior assessment (“FBA”) conducted and a behavioral intervention plan (“BIP”) developed for a student. ^[23]

A reevaluation must occur at least once every three years, unless the parent and the LEA agree that a reevaluation is unnecessary. ^[24] A reevaluation of a child with a disability must occur when conditions warrant or if the parent or teacher requests a reevaluation. ^[25]

The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.^[27]

FAPE - RELATED SERVICES

The Individuals with Disabilities Education Act (“IDEA”) provides that a child with a disability is entitled to a free and appropriate public education (“FAPE”), and ensures that included special education and related services are designed to meet “their unique needs to prepare the child for further education, employment, and independent living.” ^[28] The FAPE providing this individualization must also conform to an individualized education program (“IEP”). ^[29]

• Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, related services are defined as:

20 U.S.C. § 1401(26) Related services (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurse services designed to enable a child with a disability to receive a free appropriate public education as described in the individualized education program of the child, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children.

The definition is not meant to be exclusive and may cover unlisted services such as music therapy. Letter to Farbman, 34 IDELR 7 (OSEP 2000).

Related Services: Transportation

Appropriate transportation can be an essential element of an IEP. The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, specifically including transportation:

• Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, related services are defined as:

20 U.S.C. § 1401(26) Related services (A) In general The term “related services” means transportation, …

• FAPE - SERVICES/PRIVATE SCHOOL ENROLLMENT

The IDEA does not confer an individual entitlement upon children enrolled in private school to receive services a child would receive if enrolled in a public school. ^[30] “In contrast to the IDEA, New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools. Education for students with disabilities means special education programs ‘designed to serve’ students with disabilities (N.Y. Educ. Law § 3602-c[1][d]). Subdivision 2 of section 3602-c of the Education Law requires boards of education, upon timely request by parents, to furnish appropriate special education programs to students with disabilities privately placed by their parents in nonpublic schools.” SRO 06-069. Such a program is set forth in an individualized educational services plan or IESP.^[31] State law mandates that an IESP be developed “in the same manner” as an IEP (Educ. Law 3602-c[2][b][1]). State guidance explains that providing services on an “equitable basis” means that “special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district.”

An IEP must be reviewed periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. 34 C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f). The IEP must be revised to address: 1) any lack of expected progress toward the annual goals and in the general education curriculum, if appropriate; 2) the results of any reevaluation; 3) information about the child provided to, or by, the parents; the child’s anticipated needs; or other matters. 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

Education Law § 3602-c(b)(1) ensures due process rights to parents of children with IESPs consistent with the procedural safeguards in section 4404 of the Education Law, which is New York’s implementing statute of the IDEA. The Department has the burden of proving its program and placement recommendation to be appropriate. N.Y. Ed. L. § 4404(1)(c).

RELIEF/REMEDIES

• REMEDIES - GENERALLY

In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” ^[32] The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. ^[33]

“In enacting the IDEA, Congress did not intend to create a right without a remedy.” ^[34] “Courts retain broad discretion in fashioning an award, restrained only by the Supreme Court’s directive that ‘the relief is to be “appropriate” in light of the purpose of the Act.’” ^[35]

OSEP advises that, “based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled.” ^[36] New York law provides that a state-approved nonpublic school is a permissible placement for a school district to make on a student’s IEP upon a showing of, inter alia, detailed evidence of the student's lack of progress in previous less restrictive programs and placements. ^[37]

• REMEDIES - TUITION REIMBURSEMENT

The United States Supreme Court established a three pronged test to determine whether school district may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parent: (1) were the services offered by the board of education inadequate or inappropriate, (2) are the services selected by the parent appropriate, and (3) do equitable considerations support the parent's claim. ^[38]

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate.” ^[39]

A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). Parents “are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education.” Frank G., 459 F.3d at 364 (citing 20 U.S.C. § 1401(9)); see also Carter, 510 U.S. at 12-14. An appropriate private placement need not meet state education standards or provide certified special education teachers or prepare its own IEP for the student. (see Frank G., 459 F.3d at 364; Carter, 510 U.S. at 13 (Carter, 510 U.S. 7; Application of the Bd. of Educ., Appeal No. 08-085; Application of the Dep't of Educ., Appeal No. 08-025; Application of the Bd. of Educ., Appeal No. 08-016; Application of the Bd. of Educ., Appeal No. 07-097; Application of a Child with a Disability, Appeal No. 07-038; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-105). See Application of a Student with a Disability, Appeal No. 11-041).

In order to meet this burden, parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G. v. Bd. of Educ., 459 F.3d 356,364 [2d Cir. 2006]).

When determining whether the parents’ unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefit,” ^[40] i.e., whether it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” ^[41] In the Second Circuit, no single factor is dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Rather, the totality of circumstances must be reviewed and assessed in determining whether a placement reasonably serves a child’s individual needs. ^[42]

• REMEDIES - RELATED SERVICES

The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400- 1482, sets forth a broad spectrum of services and as well as a definition of Related Services, including transportation:

20 U.S.C. § 1401(26)

Related services (A) In general The term “related services” means transportation, and such developmental, corrective, and other supportive services … as may be required to assist a child with a disability to benefit from special education ….

• REMEDIES - COMPENSATORY REMEDIES

Where a school system fails to provide special education or related services to a disabled student, the student is entitled to compensatory education.^[43]

“Because compensatory education is a remedy for past deficiencies in a student's educational program,” a finding as to whether a student was denied a FAPE in the relevant time period is a “necessary prerequisite to a compensatory education award.”^[44]

A compensatory education “award 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.”^[45] A compensatory education award is an equitable remedy that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.”^[46]

Compensatory education requires a flexible approach to determine the services and amount of services needed for remediation. ^[47]

Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.^[48]

EQUITABLE CONSIDERATIONS

To prevail on a claim for tuition reimbursement, “equitable considerations [must] support the parents’ claims.” Burlington, 471 U.S. at 370, 374; Carter, 510 U.S. at 16. Tuition reimbursement may be “reduced or denied... upon a judicial finding of unreasonableness with respect to actions taken by the parents.” 20 U.S.C. § 1412(a)(10)(c)(iii)(III).

Case law in New York has applied a balancing of the equities in terms of reducing or eliminating an award in cases of net unreasonable parental conduct.^[50]

The IDEA provides that the private school costs may be reduced or denied if (1) at the most recent IEP meeting, the parents did not inform the District that they rejected the District’s proposed IEP and intended to enroll their child in a private program, (2) did not provide notice to the District at least 10 business days before removing their child from the public school that they disagreed with the IEP and intended to place their child privately, (3) if the District asked the parents to evaluate during the “notice period” and the Parents’ refused or (4) if the Court finds that the parents acted unreasonably in the process. 20 U.S.C. 1412(a)(10)(C)); 34 CFR 300.148[d]. See also Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246– 47, 129 S. Ct. 2484, 2496, 174 L. Ed. 2d 168 (2009) (finding “[C]ourts retain discretion to reduce the amount of a reimbursement award if the equities so warrant—for instance, if the parents failed to give the school district adequate notice of their intent to enroll the child in private school.”) “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014). The Second Circuit has also found, “in making that equitable determination, the district court may consider many factors, including, inter alia, whether [parent’s] unilateral withdrawal of her child from the public school was justified, whether [parent’s] provided the [the district] with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether [parent] should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the [district], or whether the arrangement with the school was fraudulent or collusive in any other respect.” E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Findings of FACTS The findings set forth below are based upon my review and analysis of the testimony and exhibits presented and the relevant law.

BACKGROUND

Student has been eligible for special education services and has receive same at least as far back as the 2020/2021 school year when he attended pre-school. (Ex. D). He was classified as a student with a Speech or Language Impairment on his turning-5 IESP, dated 5/10/2021. (Ex. E, p.1). This dispute relates to the 2022/2023 school year.

For pre-school, (the 2020/2021 sy), the CPSE issued an IEP, dated 10/15/2020 (“10/2020 IEP”) (Ex. D), recommending the following services to be provided at a Childcare Location selected by parent for a School Year that included July and August. (ESY):

• Special Education Itinerant Teacher Services 2:1 Direct 9 hours 30-minute sessions: no more than 4 sessions per day
• Speech-language therapy 1:1 3x30 minutes
• Occupational therapy 1:1 2x30 minutes
• Physical therapy 1:1 3x30 minutes For the 2021/2022 school year, the DOE issued a turning-5 IESP, dated 05/10/2021 (the “05/2021 IESP”) (Ex. E), to be implemented 09/06/2021, (a 10-month school year), recommending the following services to be provided at a Separate Location/Providers Location:
• Speech-language therapy 1:1 3x30 minutes
• Occupational therapy 1:1 2x30 minutes
• Physical therapy 1:1 3x30 minutes Parent disagreed with the 10/15/2021 IESP and filed a complaint (NYC DOE Case #212799). In that case, Parent alleged that the DOE had denied Student a FAPE by failing to recommend an ESY, and by failing to include the SEIT services but not replacing such services with any special education services to address the Student’s academic delays and needs. That matter was heard March 2022, 2022 and an FOFD was issued 05/16/2022. (Ex. B). By that FOFD, the IHO ordered the following:
• That the District’s removal of the SEIT program without alternative support services or an explanation as to why constitutes a denial of a FAPE to the Student.
• The District shall reconvene and conduct a neuropsychological evaluation of the Student to determine the special education services the Student needs within 90 days of the actual closing date of this Order.
• Pending the results of the mandated evaluation, the District shall immediately reinstate and provide the Student with the SEIT services stated in the 10/15/2020 IEP.
• The SEIT services are to be provided on an extended school year basis.
• Compensatory services be provided to make up for lack of FAPE for the 2021-2022 school year.

There is no record showing that the DOE conducted a neuropsychological evaluation of the Student to determine the special education services the Student needs, or reconvened to develop a new IESP subsequent to the disputed 5/2021 IESP (Ex. E.) or subsequent to the 5/2022 FOFD. (Ex. B).

ISSUE 1- FAPE

There is nothing in the record showing the DOE to have evaluated Student, developed and issued an IESP, or provided services to Student for the 2022/2023 school year. The DOE presented no witnesses, exhibits, arguments or closing brief to rebut Petitioners’ assertion that the DOE failed to develop and issue an IESP for Student and failed to implement services for student for the 2022/2023 school year.

There is nothing in the record showing the DOE conducted the evaluations Ordered by the IHO in the 5/2022 FOFD.

ISSUE 2 - APPROPRIATENESS

Parent alleges that an appropriate educational services plan for Student continues to require the following be provided:

Extended School Year (“ESY”) with the following services

• Special Education Itinerant Teacher Services 2:1 Direct 9 hours; 30-minute sessions: no more than 4 sessions per day
• Speech-language therapy 1:1 3x30 minutes
• Occupational therapy 1:1 2x30 minutes
• Physical therapy 1:1 3x30 minutes This is the plan that was deemed appropriate by the CPSE for the 2020/2021 school year and was, by the 05/16 /2022 IHO Order, to continue for the 2021/2022 school year pending the results of IHO mandated evaluations and CSE reconvene. (Ex.’s D and B).

The issues relating to the appropriateness of Parent’s demanded services relate to whether or not, pending the results of the IHO mandated evaluations and a reconvene of the CSE, Student requires an ESY and the direct support services of a Special Education Teacher in a 2:1 group, 9 hours 30-minute sessions with no more than 4 sessions per day. Parent asserts this service is a necessary element of Student’s education and entered a contract with Agency on 6/09/2022 to provide this service. (Ex.J). Neither Party has raised any dispute relating to the appropriateness of the remaining services.

Director of Agency testified by affidavit (Ex. G), and appeared for cross-examination on 1/4/2023. Her testimony was recorded and is set forth in the transcript commencing on page 90. (“TR 90”). Director’s testimony as to her education and professional experience showed her to have the appropriate expertise and competency for testifying in this matter. Director testified credibly and knowledgeably as to Petitioner’s records, as to the SEIT services rendered by Agency and as to Student’s performance and progress. Director was responsive to questions and able to provide additional details and clarification when asked.

Parent testified by affidavit (Ex. F) and appeared for cross-examination on 1/4/2023. Her testimony was recorded and is set forth in the transcript commencing on page 121. (“TR 121”). Parent testified credibly and knowledgeably as to her familiarity with Student and his performance in school; her participation in his education; and her familiarity and agreement with the services and progress report provided by Agency. (Progress Report was entered into the record as Exhibit H.)

Director testified that she screens and hires all Agency staff, keeps current on latest educational techniques, and conducts thorough intake reviews for new students to determine whether Agency can provide the appropriate services and, if so, assign an appropriate service provider. (Ex. G, ¶5, 6). Director testified that she communicates with Parents, works closely with Agency’s supervisory team, and visits schools where Agency services are provided. (Id. ¶5, 7). Providers are appropriately certified, and Agency offers its providers monthly professional development training, (Id. ¶11).

Director testified that she is familiar with Student through the intake process, conversations with Parent, conversations with Student’s Agency provider’s supervisor, and review of Student’s Progress Report. Student’s provider has set goals for the 2022/2023 school year. Student’s progress is reviewed quarterly through meetings with providers, classroom observations and daily session notes. (Id. ¶ 18, 20; and 2/2022 Progress Report, Ex. H,^[51]).

Student is below age level in all ELA and math skills as well as in social skills; he requires much prompting and support throughout the day. (Ex. H.) Student’s receptive and expressive language impairments significantly interfere with his ability to access his education and interact with his peers. The entire report indicates Student has significant trouble accessing and retaining any part of his education. (Id.). He finds it difficult to follow one-step instructions and cannot follow two-step instructions. He has weak phoneme skills and difficulty counting blocks up to 25. Student’s progress Report specifies the many ways Agency provides constant interventions and support (prompts, individual decoding/phoneme practice) in every area of academic and social skills. (Id.).

ISSUE 3 - COMPENSATORY SERVICES

The DOE has produced no evidence, and has made no argument, rebutting Petitioners’ claim that the following services have not been provided to Student during the 2022/2023 ESY:

• Special Education Itinerant Teacher Services 2:1 Direct 9 hours; 30-minute sessions: no more than 4 sessions per day
• Speech-language therapy 1:1 3x30 minutes
• Occupational therapy 1:1 2x30 minutes
• Physical therapy 1:1 3x30 minutes

ISSUE 4 - EQUITIES

There are no allegations, and the record contains no evidence suggesting that Parent’s conduct calls for a reduction in any remedy awarded.

CONCLUSIONS of law and Discussion

• For the 2022/2023 school year, DOE failed provide Petitioner with a FAPE in that the DOE failed to appropriately evaluate Student and failed to provide Student with an appropriate special education services plan and failed to provide appropriate services to Student.

New York State law does confer an individual entitlement to special education services and programs to eligible students enrolled by their parents in nonpublic schools. Education for students with disabilities means special education programs ‘designed to serve’ students with disabilities (N.Y. Educ. Law § 3602-c[1][d]). Such a program is set forth in an individualized educational services plan or IESP.^[52] State law mandates that an IESP be developed “in the same manner” as an IEP (Educ. Law 3602-c[2][b][1]).

The DOE bore the burden of production and persuasion to establish that it provided the Student with a FAPE for the school year at issue. ^[53] As acknowledged by the DOE, there is no dispute that the DOE did not meet its Prong I burden. (TR 139). Here, the DOE produced no witnesses, exhibits, arguments or closing brief to rebut Petitioners’ assertion that the DOE failed to provide Student with a FAPE. The DOE has introduced no evidence upon which to support any reductions to the ESY education and services mandated by the 2020 Plan.

Moreover, there is nothing in the record showing that the DOE complied with the 5/2022 FOFD (Ex. B), which ordered the DOE to reconvene and to conduct a neuropsychological evaluation. The DOE has failed to conduct a sufficiently comprehensive evaluation to identify all of the child’s special education and related services needs, whether or not commonly linked to the disability category.^[54] A reevaluation of a child with a disability must occur when, as here, conditions warrant, or if the parent or teacher requests a reevaluation. ^[55] To this I would add: and when Ordered to do so.

Additionally, there is no evidence showing the DOE reconvened to satisfy its obligation to ensure that the IEP is revised, as appropriate, to address any lack of expected progress toward the annual goals and to address the results of any reevaluation or information about the child.^[56]

The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.^[57]

I find the absence of current, thorough, and appropriate evaluations to be especially troubling here. The DOE had been Ordered to reconvene and conduct such evaluations within 90 days of the 5/2022 Order. It should have completed the evaluations and developed an IESP by the early months of the 2022/2023 school year. Moreover, continued reliance upon a 2020 CPSE, and the evaluative material then available, cannot be assumed to be sufficient evidence of what constitutes a FAPE for this school year where, as here, an examination of Student’s Progress Report suggests Student may be falling further behind.

• The program set forth in 10/2020 Plan continues to be an appropriate education plan for Petitioner.

It is clear that Student requires a great deal of constant intervention and support to access and benefit from his education. He is struggling to access and retain his lessens and clearly will regress during any breaks is services. I find Petitioners have shown that the program set forth in the 10/2020 IESP continues to reasonably serve Student’s individual needs ^[58] in light of the evaluative material and records available to date.^[59] The DOE has introduced no evidence upon which to support a reduction of services or any changes to the ESY education and services mandated by that 2020 Plan.

• An award of compensatory services is appropriate under these circumstances.

It is reasonable to determine that a child’s right to compensatory education begins when a school district knew, or should have known, that a child’s Individualized Education Program (“IEP”) did not provide FAPE. ^[61] Here, the DOE was certainly put on notice as recently as 05/16/2022, the date of the FOFD in last year’s case, that the DOE’s removal of the SEIT program without alternative support services, and without evidence supporting such a change, constituted a denial of a FAPE to the Student; that a neuropsychological evaluation was called for to determine the special education services the Student required; that pending the results of the mandated evaluation, the District was to provide the services set forth in the 10/2020 Plan, and that such services were to be provided on an extended school year basis.

The DOE has produced no evidence it has conducted any further evaluations, no evidence that it has developed a new IESP, and no evidence that it has provided any of the following services to Student for the 2022/2023 ESY:

• Special Education Itinerant Teacher Services 2:1 Direct 9 hours 30-minute sessions: no more than 4 sessions per day
• Speech-language therapy 1:1 3x30 minutes
• Occupational therapy 1:1 2x30 minutes
• Physical therapy 1:1 3x30 minutes Student is to be awarded a bank of compensatory services to equal the number of such services that the DOE failed to provide retroactive to the beginning of the 2022/2023 Extended School Year. I find such a calculation to be reasonable and likely to enable Student to be in the same position he would have occupied but for the school district's violations. This calculation is not to include prospective hours for sessions that have not become due.
• Equitable considerations support a full award of remedies sought.

I find that equitable considerations favor Petitioners. Parent has been cooperative in all dealings with the DOE. There is nothing in the record that calls for a reduction of any remedy awarded.

• FINAL ORDER:

Upon consideration of the Findings noted above:

• The DOE is Ordered to immediately provide the following to Student for the 2022/2023 School Year:

An Extended School Year with the following Services:

• Special Education Itinerant Teacher Services 2:1 Direct 9 hours 30-minute sessions: no more than 4 sessions per day
• Speech-language therapy 1:1 3x30 minutes
• Occupational therapy 1:1 2x30 minutes
• Physical therapy 1:1 3x30 minutes
• If the DOE does not immediately provide such services, Parent may obtain such services from appropriately credentialed providers of Parent’s choosing for which the DOE is Ordered to make direct and timely payments at the current market rate. Upon receipt of timely notice from Parent to the DOE of Parent’s intent to commence such services, the DOE is Ordered to rapidly complete all administrative/bookkeeping procedures and issue all documents required (including, but not limited to, related service authorizations) to quickly implement the services.
• To the extent that Parent has obtained such services privately, at Parent’s own expense, from appropriately credentialed providers, the DOE is Ordered to reimburse Parent for all costs at the current market rate.
• The DOE is Ordered, upon receipt of billing statements from providers, and or upon receipt of proof of payment by Parents, to rapidly complete all administrative/bookkeeping procedures and promptly issue such payment and/or reimbursement check.
• The DOE is Ordered to immediately conduct a neuropsychological evaluation of the Student, and any further evaluations found to be appropriate, to identify all of the Student’s special education related services needs.
• Upon the completion of the evaluations Ordered in Paragraph 5, above, the DOE is Ordered to immediately convene the CSE and develop an appropriate IESP for Student. The IDEA mandates that this IESP be based on the results of the most recent evaluations.^[62]
• The DOE is Ordered to provide to Petitioner a bank of hours of compensatory services for each of the items set forth in this Final Order section, Paragraph 1, above, equal to the number of hours the DOE failed to provide during the 2022/2023 ESY, up to the date such services commence, to be furnished by a private provider of the Parent’s choosing, at the current market rate. This calculation is not to include prospective hours for sessions that have not yet become due.
• These compensatory services are to be provided outside the course of the regular school day, costs to be borne by the DOE.
• The scheduling of these compensatory services is to be within the sole discretion of parent. Parent control includes, but is not limited to, frequency, spacing, and length of each session.
• There is to be no time limit within which the compensatory education must be used. Services need not be provided during the school day and are not be provided during the time Student is entitled to receive such services from his current school placement.
• Upon receipt of timely notice from Parent to the DOE of Parent’s intent to commence any and each of these compensatory services, the DOE is Ordered to rapidly complete all administrative/bookkeeping procedures and issue all documents required (including, but not limited to, related service authorizations) to quickly implement these remedies.

SO ORDERED

This 1st day of Febuary 2023

By: _____________________________

Hearing Officer Andrea R. Cohen, Esq.

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.

(NYSED 07/09

Footnotes

[1] U.S.C. § 1400(d)(1)(A).

[2] C.F.R. § 300.320.

[3] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[4] Walczak, 142 F.3d at 130 (quotations omitted). Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005)

[5] Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3f 186, 192 (2d Cir. 2005); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir. 1998) (quoting Rowley, 458 U.S. 176, 207).

[6] Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121.

[7] See 20 U.S.C. 1414(d)(3)(B)(i).

[8] See 8 NYCRR 200.4(d)(3)(i).

[9] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f).

[10] C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[11] see Educ. Law 3602-c[2][a]). NYSED; State Review Office; March 31, 2014 No. 14-022; Justyn P. Bates, S.R.O.

[12] Endrew F., 137 S. Ct. at 1002.

[13] R.E., 694 F.3d at 185Id. at 185-86.

[14] See L.O. v. New York City Dep’t of Educ., No. 15-1019, 2016 WL 2942301, at *9 (2d Cir. 2016).

[15] See, e.g., A.C. v. Bd. of Educ., 553 F.3d 165 (2d Cir. 2009) (the failure to complete an evaluation in a timely manner did not result in substantive harm to the child).

[16] Lesesne v. District of Columbia, 447 F.3d 828, 834 (D.C. Cir. 2006) (emphasis in original; internal citations omitted).

[17] C.F.R. § 300.513 (a)(2).

[18] C.F.R. § 300.324 (b)(1).

[19] C.F.R. § 300.15; see also 8 NYCRR § 200.1(aa).

[20] C.F.R. §300.304(b)(1); 8 NYCRR §200.4(b)(1).

[22] See 20 U.S.C. 1414(d)(3)(B)(i).

[23] See 8 NYCRR 200.4(d)(3)(i).

[24] 34 C.F.R. § 300.303(b)(2); 8 NYCRR §200.4(b)(4).

[25] C.F.R. §300.303(a); 8 NYCRR §200.4(b)(4).

[26] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f); 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[27] C.F.R. §§ 300.324(a)(1) and (2); see also 8 NYCRR §§ 200.4(d)(2) and (3).

[28] U.S.C. § 1400(d)(1)(A).

[29] C.F.R. § 300.320.

[30] C.F.R. § 300.137(a) (“No parentally-placed private school child with a disability has an individual right to receive some or all of the special education and related services that the child would receive if enrolled in a public school”).

[31] E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012).

[32] U.S.C. § 1415(i)(2)(C)(iii).

[33] Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted).

[34] Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App’x 411, 415 (2d Cir. 2010).

[35] L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016).

[36] (Letter to Kohn, 17 IDELR 522 (OSEP 1991). See also Letter to Riffel, 34 IDELR 292 (OSEP 2000) (discussing a hearing officer’s authority to grant compensatory education services).

[37] N.Y.C.R.R. § 200.6(j)(iii)(c).

[38] (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. Sept. 28, 2005]).

[39] (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 at 112 [2d Cir. 2007]).

[40] (Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 112),

[41] (Gagliardo, 489 F.3d at 365).

[42] (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364-65).

[43] Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005).

[44] Peak v. District of Columbia, 526 F. Supp. 2d 32, 36 (D.D.C. 2007).

[45] Reid, 401 F.3d at 524.

[46] Reid, 401 F.3d at 518. See also Somoza v. New York City Dep’t of Educ., 538 F.2d 106, 109 n.2 (2d Cir. 2008) (“prospective equitable relief, requiring a school district to fund education beyond the expiration of a child's eligibility as a remedy for any earlier deprivations in the child's education”). The SRO has reached the same definition under the rubric of “compensatory additional services.” See, e.g., N.Y. SRO Decision No. 13-048 (Sept. 18, 2013); N.Y. SRO Decision No. 12-235 (Sept. 3, 2013) (“an equitable remedy that is tailored to meet the Unique circumstances of each case,” citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)).

[47] Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). See also Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (preferring “a flexible approach, rather than a rote hour-by-hour compensation award to remediate the student).

[48] See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J.G. v. Kiryas Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).

[49] (The Third Circuit has addressed and upheld this view; see M.C. v. Cent. Reg’l School dist. 81 F.3d 389, 395, 396-397 (C.A.3 (N.J. 1996),( “An award of compensatory education may be available for the time when the District knew or should have known of a denial of FAPE.”).D.F. v. Collingswood Public Schools, USCA for Third Circuit No.11-2410 (12/9/2011)(Appeal from USDC NJ).

[50] See, e.g., French v. New York State Educ. Dep’t, 476 F. App’x 468 (2d Cir. 2011); J.G. v. Kiryas Joel Sch. Dist., 777 F. Supp. 2d 606 (S.D.N.Y. 2011); N.Y. SRO Decision No. 11-027 (Apr. 29, 2011).

[51] The 6/2022 Progress report was the most recent report at the time this matter was filed. I find it reasonable to refer to the information therein it as the information relevant to determining an appropriate services plan for the 2022/2023 school year.

[52] E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012).

[53] N.Y. Educ. Law §4404(1)(c). M.H. v. New York City Dept. of Educ., 685 F.3d 217, 225 (2d. Cir. 2012).

[55] C.F.R. §300.303(a); 8 NYCRR §200.4(b)(4).

[56] C.F.R. § 300.324(b)(1)(i); 8 NYCRR § 200.4(f); 34 C.F.R. § 300.324(b)(1)(ii); 8 NYCRR § 200.4(f)(2).

[57] C.F.R. §§ 300.324(a)(1) and (2); see also 8 NYCRR §§ 200.4(d)(2) and (3).

[58] In the Second Circuit, the totality of circumstances must be reviewed and assessed in determining whether a placement reasonably serves a child’s individual needs. (Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 364-65).

[59] For the reasons set forth above, I find the absence of current, thorough, and appropriate evaluations to be especially troubling here. Student was not yet four years old at the time of the Pre-K IEP. He is now 6; his peers are halfway through first grade.

[60] Peak v. District of Columbia, 526 F. Supp. 2d 32, 36 (D.D.C. 2007).

[61] (The Third Circuit has addressed and upheld this view; see M.C. v. Cent. Reg’l School dist. 81 F.3d 389, 395, 396-397 (C.A.3 (N.J. 1996),( “An award of compensatory education may be available for the time when the District knew or should have known of a denial of FAPE.”).D.F. v. Collingswood Public Schools, USCA for Third Circuit No.11-2410 (12/9/2011)(Appeal from USDC NJ).

[62] C.F.R. §§ 300.324(a)(1) and (2); see also 8 NYCRR §§ 200.4(d)(2) and (3).

New York City Department of Education, Impartial Hearing Decision