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CASE NUMBER: 576085 NYC: 228791
FINDINGS OF FACT AND DECISION
Student’s Name: REDACTED
Date of Birth: REDACTED
Hearing Requested By: Parent
Dates of Hearing: September 30, 2022, February 15, 2023, March 16, 2023, March 17, 2023 and April 24, 2023 Record Closed Date: June 8, 2023
Hearing Officer: Audrey Daniel, Esq.
Names and Titles of Persons who appeared at the September 30, 2022 Pendency Hearing For the REDACTED None
For the Parents:
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the February 15, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney
For the Parents:
REDACTED, Esq., Attorney for Parent
Names and Titles of Persons who appeared at the March 16, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney REDACTED, Special Education Teacher
For the Parents:
REDACTED, Esq., Attorney for Parent
REDACTED, Parent Parent
REDACTED, Interpreter
Names and Titles of Persons who appeared at the March 17, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney
For the Parents:
REDACTED, Esq., Attorney for Parent
REDACTED, Parent Parent
REDACTED, Interpreter
Names and Titles of Persons who appeared at the April 24, 2023 Hearing For the REDACTED REDACTED, Esq., Agency Attorney
For the Parents:
REDACTED, Esq., Attorney for Parent
REDACTED, BCBA, Clinical Director, REDACTED Services
I. Introduction and Procedural History
On July 25, 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 Parent (“Parent” or “Parents”) alleging a denial of a Free and Appropriate Public Education (“FAPE”). A pre-hearing conference was held on August 23, 2022, a pendency hearing was held on September 30, 2022, status conferences were held on November 21, 2022, and December 20, 2022. Hearings were held on February 15, 2023, March 16, 2023, March 17, 2023, and April 24, 2023. The REDACTED (“REDACTED”) was represented by REDACTED, Esq. and Parent was represented by 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 June 8, 2023, after the submission of Parent’s closing brief.
II. Background
Parent filed a due process complaint on July 9, 2022, alleged a denial of Student’s right to a FAPE, and requesting, as relief, a pendency order, compensatory services for services not provided under pendency, additional services, and a change in placement. Student has been receiving the requested services pursuant to a pendency order dated October 5, 2022. There were five days of hearing, including the pendency hearing. The REDACTED had one witness, and Parent had two witnesses. 5
III. Discussion
FINDINGS OF FACT AND DECISION
Student has been receiving the requested services pursuant to a pendency order dated October 5, 2022.
An IEP meeting was held on May 26, 2022. (Exh. 1). Student was classified as a student with Autism, and the Committee on Special Education (“CSE”) team recommended an 8:1+3 special class at a New York State approved Non-public School, occupational and physical therapy 2 x 30 minutes per week each, speech and language therapy 3 x 30 minutes per week, and Parent Counseling and Training for one hour per month. (Exh 1, page 21). The REDACTED’s witness, REDACTED, who is a special education teacher who attended the hearing, testified credibly at hearing, but had only limited recollection of the meeting, and thus was not persuasive as to the appropriateness of the recommended program. The REDACTED alleges that Student was offered a FAPE, as he was provided an IEP least restrictive environment that allowed for meaningful progress. The team used progress reports provided by the school Student was attending, including the teacher and related services report. (Exh. 1, page 21). Parent had previously agreed to the same recommendation of REDACTED.
According to the REDACTED witness, this meeting was a “reapplication” meeting. Student has severe cognitive delays that warrant a restrictive recommendation. The recommendation was continuation at REDACTED with physical therapy, occupational therapy, and speech-therapy and PCAT. The classroom size 8:1:3- Student was making academic and social gains and everyone agreed that Student was making progress in this program. No new testing was requested by Parent or the school; it was an annual review, and no evaluations were due. Student did not fit in a less restrictive placement and was deferred to the CBST where it was determined that REDACTED would be an appropriate placement. The behavioral needs are addressed by the IEP, as they are addressed “programmatically”. The REDACTED witness did not believe that a behavioral plan was warranted. The team determined that Student needed related services. The duration and frequency were determined based on the recommendations from the providers. (Tr. 43-54).
However, the ABA provider was not at meeting, and no progress report was provided by ABA provider. Parent did not request that after school ABA services until the end of the meetings. The witness testified that they “could not” recommend after-school services or a 6 specific methodology. There was no school psychologist at the meeting- did not confer with school psychologist prior to the meeting. (Tr. 54-76).
Parent also testified during the hearing. Student is twenty years old and is diagnosed with Autism, and attends school at REDACTED, where he has been attending for eight years. He gets additional ABA services after school; services he has been receiving. According to Parent, the after-school services have helped Student make progress, including improved selfconfidence. Parent attended the 5/26/22 IEP meeting. No one spoke to Parent prior to the meeting regarding re-evaluation. According to Parent she was not asked if she agreed to the recommendation; she asked for ABA services. (Tr. 89-96).
REDACTED, Head Clinical Director REDACTED Services testified on behalf of Parent regarding the requested after school services that were provided as pendency this year. Parent requests that this program be continued, and that compensatory services be provided. REDACTED is an agency contracted to provide ABA and related services, generally to students with autism. The clinical director has provided services and supervision for Student for eight years. Student has come a long way, and is much more verbal, but still needs prompts. He still exhibits behaviors, including aggression and self-injury. However, he benefits from structure and 1:1 instruction, and that has worked to decrease the behavior. They provide push-in ABA at school, ABA after school, and provide supervision. They provide 13 hours at school, 10 hours at home, and 2 hours per week of supervision. They started this year at the beginning of November as they had difficulty getting back into the school after COVID. So through July and November, he was not receiving the 13 hours at school. There has been only limited staff in the classroom since December, as people have left because they have left to run the classroom without a head teacher. There is a lot of aggression in the classroom. Since the school setting is not the best situation for him, and Student missed a number of hours, Student needs compensatory hours. He needs a classroom situation to help engage him and interact with others, but he progresses with the one-to-one teaching. He recommended an additional year of services. Student is assessed minimally every quarter, but generally more often. The number of hours was determined based on an FOFD. (Tr. 109-132). 7
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 8 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.
The REDACTED waived its opening and did not avail itself of the opportunity to set forth legal arguments in a closing brief. (Tr. 27). While the REDACTED witness was credible and knowledgeable, no explanation was provided for the REDACTED’s failure to recommend after school services, or why the Parent Counseling and Training recommended by Student’s IEP was not provided. (Exh. 1) The REDACTED’s testimony that they “could not” recommend afterschool services or a specific methodology is clearly violative of the IDEA. (Tr. 50, 71-3). The
REDACTED did not adequately explain while it failed to conduct an FBA, despite knowledge of Student’s well documented behaviors, including discussion in the IEP of Student’s failure to make progress as a result of interfering behaviors. (Exh. 1). Further, the REDACTED failed to defend the allegations that it did not conduct the required triennial evaluations.
The most concerning aspect of these case is that Parent is forced to file a due process complaint annually regarding the same issues, and these issues are always resolved in Parent’s favor, either through settlement or decision. (Exhibits B, E-I). Rather than adding these services that have been beneficial and recommended by experts, the REDACTED uses a blanket denial to provide after school services, a denial that is not based on statute or case law.
Therefore, 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 10
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 considerable compensatory services as relief for the REDACTED’s failure to provide FAPE for the 2022-2023 school year, and requests compensatory services based on two separate claims- first on the inadequacy of the 2022-2023 IEP, and secondly, based on the REDACTED’s failure to provide all services ordered pursuant to pendency. (Exh. Q, page 20). For the first claim, Parent requests the use of the quantitative approach. Parent requests relief for 210 days of denial of FAPE. (Exh. Q, page 23, citing N.Y. Educ. Law 3604(7). Parent requests five and half hours per day of instructional ABA during school, and three hours per day of afterschool instruction, totaling 1,785 hours of compensatory services.[1] (Exh. Q, page 24). These
11 services shall be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate. Parent does not discuss reduction of these hours because Student was receiving services pursuant to a pendency order. There is evidence that there was a delay in providing these pendency services, prompting Parent’s request for compensatory services based on the REDACTED’s failure to provide these ordered services. However, Parent’s request for compensatory services includes a calculation for 1:1 instruction for the entire school day based on a quantitative calculation of services Parent believes should have been provided. Some of this one-to-one instruction was provided pursuant to the pendency order. Therefore, I order the REDACTED to provide a bank of compensatory services, less services already provided pursuant to pendency. 12
IV. Order
IT IS THEREFORE ORDERED THAT:
1. The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.
2. The REDACTED shall provide a bank of 1785 hours of compensatory Applied Behavior Analysis services to be provided by a licensed and/or certified provider, at a rate not to exceed reasonable market rate, less any services provided pursuant to pendency.
Dated: June 19, 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. 14
EXHIBITS ADMITTED AT HEARING
REDACTED
Exhibit Description Date Pages
1 Individualized Education Program 5/26/2022 30
2 Prior Written Notice 6/8/2022 7
3 Speech and Language Report 5/17/2022 2
4 Physical Therapy Report 4/18/2022 3
5 Occupational Therapy Report 4/28/2022 2
Parent Exhibit Description Date Pages
A Due Process Complaint 07/09/2022 13
B Findings of Fact and Decision #215201 06/06/2022 12
C FOFD: 207654 06/06/2022 11
D Pendency Agreement 184041 08/13/2021 2
E Statement of Agreement and Order #156315 04/13/2016 4
F FOFD: 161382 12/05/2017 8
G FOFD: 184041 03/31/2021 11
H FOFD: 171196 02/08/2019 11
I FOFD: 151456 05/13/2015 13
J IEP 04/13/2021 28
K SETSS-ABA Progress Reports 3/30/2022 12 15
L Email RE REDACTED 01/03/2023 1
M Email RE Student’s Behavior 04/11/2022 1
N Letter from School 03/02/2023 1
O SETSS-ABA Progress Reports 12/30/2022 13
P Letter From School 11/04/2021 1
Q Closing Mem. 06/05/2023 27
Impartial Hearing Officer
None.
Footnotes
[1] Parent requests additional relief in the due process complaint. (Exh. A). However, the only relief requested in the closing brief is compensatory services. As the number of hours of compensatory services encompasses a fully day of one-to-one instruction during the school day, as well as after school services for the entire twelve-month school year requested by Parent, I decline to award more relief.