New York City Department of Education, Impartial Hearing Decision

Findings of Fact and Decision

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

II. Overview This claim is for a bank of hours of compensatory education and services for the 2021-2022 and 2022-2023 school years (“SY”). The Parent filed the complaint notice on July 14, 2022. I was appointed as the IHO on July 28, 2022. A hearing was held across multiple dates. ^[1]

An interim order was issued on August 29, 2022, in which I ordered the District to reconvene a Committee on Special Education (“CSE”) meeting, for the purpose of deferring this case to the Central Based Support Team (“CBST”) to investigate a possible State-Approved, Non-Public Placement (“NPS”). By December the CSE had acted and a NPS was identified. The Student began attending in January 2023 (See T. July 16, 2023 hearing) On December 13, 2022, I issued another interim order, ordering the District to fund an Individual Education Evaluation (“IEE”). ^[2] What remains of this case is a claim for compensatory education. Regarding compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and . . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

The Parent offered exhibits A-Q into the record and called four witnesses to testify on their behalf: the Occupational Therapist, the Speech/Language Pathologist, the Physical Therapist, and the Board-Certified Behavior Analyst. The District did not submit any evidence or have any witnesses testify on their behalf. In fact, they failed to appear consistently and eventually I declared a default.

a. Parents’ Position The central allegation is that the District has procedurally and substantively denied the Student a FAPE. To remedy this alleged violation, the Parents seek a bank of compensatory hours and services “in areas that include, but are not limited to,” Speech-Language Therapy, Occupational Therapy, Physical Therapy, Assistive Technology Training, Parent Counseling and Training, and ABA therapy. (Ex. A-5) b. District’s Position The District did not present a Prong I case, introduce evidence, or bring any witness to testify on their behalf.

c. Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

- (A) have been provided at public expense, under public supervision and direction, and without charge, - (B) meet the standards of the state educational agency, - (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and - (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). ^[3] A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

III. Did the District Provide a FAPE? Legal Standard a. Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

b. Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.

c. Analysis

I first look to the Parent’s allegations to determine the scrutiny to apply in evaluating the District’s presentation. The Parents’ complaint notice enumerates their allegations, which relate to the 2021-2022 and 2022-2023 SYs: 1) The District denied the Parent the right to meaningfully participate in the development of the Student’s educational program.

2) The District failed to comprehensively evaluate the Student.

3) The District failed to recommend and provide an appropriate program for the Student.

4) The District failed to provide appropriate related services to the Student.

5) The District failed to address the Student’s behavioral needs.

6) The District failed to recommend appropriate parent counseling and training.

7) The District failed to provide appropriate assistive technology. (Ex. A-4) This is the backdrop in which I weigh the District’s recommendations, mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

In this case the District failed to defend. I am thus left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the deliberations that may or may not have contributed to a final recommendation of IEP. They did not call any witnesses to demonstrate that the IEP was appropriate or how it would be implemented in the District school, and failed to demonstrate that they provided a FAPE. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239.

d. Conclusion

Based upon the law and the record in this matter I find that the District denied the Student a FAPE for the 2021-2022 and a portion of the 2022-2023 SYs.

IV. Is Compensatory Education an Appropriate Remedy for Denial of a FAPE? Legal Standard Compensatory education relief may be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate 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"]; Parents of Student

W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

V. Recommendations – Compensatory Education Below are some of the important recommendations that resulted from the seven evaluations of the Student.

Neuropsychological Evaluation – 02/19/23 The Neuropsychologist recommended the Student receive the following compensatory education: a. 1:1 Applied Behavior Analysis (ABA) - 40 hours per week (30 hours school-based and 10 hours home-based) b. Parent Counseling and Training (PCAT) - 2 hours per week – 92 hours per year c. BCBA Supervision- 2 hours per week – 92 hours per year d. Occupational Therapy (OT) - 2 hours per week – 92 hours per year e. Speech Language Therapy (SLT) - 5 hours per week – 230 hours per year f. Social Skills Training (SST) - 5 hours per week – 230 hours per year

ABA Skills Assessment – 02/23/23 The BCBA who conducted the assessment recommended the following:

I recommend a bank of compensatory hours of ABA to put [the Student] in the position he would have been in had the DOE provided appropriate special education services. Given [the Student’s] needs, he should have been receiving 10 hours a week of ABA therapy during the time FAPE was denied to him. 10 hours of ABA therapy per week multiplied by 46 weeks in the school year, over 2 years is a total of 920 hours of ABA therapy.

I also recommend a bank of compensatory hours of Parent Training to enable the Parent to reinforce the behavior plan in place at school and collaborate effectively with [the Student’s] team of educators. [The Student] and his family should have been receiving these services for the last^[2] years. In my professional opinion, [the Student] should be entitled to a bank of compensatory hours to enable him to reach the positions he would have been in had the DOE provided appropriate services. Two hours of parent training per week across 46 weeks in

VII. Conclusion

I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the award. The Parents provided an ample amount of expert advice advocating for the proper services. Moreover, the Parents have established that such services are necessary to permit the Student to benefit from instruction.

Concluding Remarks and Rationale for Reducing the Award I have reduced the requested award regarding compensatory education for four reasons:

1. I am confident in the CSE and their ability, guided by the neuropsychological evaluation and the other evaluations developed over time, to make good decisions about the Student’s needs and related services going forward;

2. With respect to each of the above recommendations for compensatory education the providers based their recommendations upon either two (2) years of educational deprivation.

I have reduced each recommendation based upon the logic that an appropriate Non-Public Placement negates educational deprivation, by definition. In this case the Student has been properly placed since January 2023; and

3. I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of additional services, may be daunting. Inherent on the Student and the family. I attempt to mitigate these unintended consequences with my

order.

It is therefore ORDERED

1. The District shall create a bank^[4] of:

a. 200 hours of Speech-Language Therapy;

b. 110 hours of Occupational Therapy;

c. 40 hours of Physical Therapy;

d. 20 hours of Assistive Technology Training;

e. 800 hours of ABA Therapy;

f. 160 hours of Parent Counseling Training.

2. The utilization of the above hours must be accomplished within three (3) years of this order or such services shall be forfeited.

Dated: June 16, 2023

Martin J. Kehoe III, 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.

Footnotes

[1] A hearing was held on the following dates: August 29, 2022; November 18, 2022; February 8, 2023; March 28, 2023; April 17, 2023; April 19, 2023; May 15, 2023; May 24, 2023; June 13, 2023; June 16, 2023.

[2] The IEE consisted of the following evaluations: a neuropsychological evaluation; a speech-language evaluation; an assistive technology evaluation; a physical therapy evaluation; a Functional Behavior Assessment (“FBA”); and an Applied Behavior Analysis (“ABA”) skills assessment. All these evaluations have been completed and shared with the CSE.

[3] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, 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. 20 U.S.C. § 601(26).

[2] years is a total of 184 hours of Parent Training. VI. Is the Student Entitled to Compensatory Education? I now look to the testimony of the Parents to establish a basis for the relief sought. The Parents’ exhibits include four signed affidavits constituting the testimony of service providers familiar with the Student. Exhibit N, for example, provides the testimony of the Occupational Therapist, who recommended that “[the Student] receive individual occupational therapy four times a week for 30 minute sessions . . . I also recommend that [the Student] receive 138 hours of compensatory occupational therapy.” (Ex. N-2) The Speech-Language Pathologist made suggestions as well, recommending that the Student receive Speech-Language Therapy four times a week individually for 60-minute sessions and once a week in a group of three students for a 60-minute section. She also recommended that the Student receive 207 hours of compensatory speech-language therapy. (Ex. O-2) The Physical Therapist provided his own recommendations: “I recommend that he receive three thirty-minute sessions of physical therapy per week. I also recommend a decrease to two thirty-minute sessions per week once he is able to demonstrate progress in generalizing his skills.” He additionally recommended 46 hours of compensatory Physical Therapy. (Ex. P-2) The Board-certified Behavior Analyst recommended that the Student receive 920 hours of compensatory ABA Therapy, “which calculates to 10 hours per week for 46 weeks for 2 years,” and that the Parents receive 2 hours per week of Parent Counseling and Training, as well as 184 compensatory hours of the same. (Ex. Q-2) Each witness based their conclusions on their individual assessments of the Student’s abilities and weaknesses insofar as these pertain to their limits of stamina, pace, concentration and the like could easily place an unintended burden respective areas of specialization. There is also a reasonable request for 20 hours of assistive technology training. (See, Tr. 6/16/2023)

[4] The District must pay a provider(s) of the Parents’ choosing at a market rate, at the time the services are provided, to be determined by the “implementation unit” of the District, in consultation with the Parents and/or their provider(s).