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Case Number: 576869 – NYC: 229476
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parents
Hearing Officer: Martin J. Kehoe III, Esq.
Actual Record Close Date: May 25,2023
Table of Contents
I. Introduction
................................................................................................................................. 2
II. Overview .................................................................................................................................... 2 a. Parent’s Position...................................................................................................................... 2 b. District’s Position.................................................................................................................... 3
c. Background
of the Case .......................................................................................................... 3 d. Student History ....................................................................................................................... 3 e. Legal Overview ....................................................................................................................... 4
III. Did the District Present a Provide the Student a FAPE? .......................................................... 6 a. Legal Standard ........................................................................................................................ 6 b. Analysis................................................................................................................................... 7 c. Conclusion............................................................................................................................... 8
IV. Is Compensatory Education an Appropriate Remedy for Denial of a FAPE? ......................... 8 a. Legal Standard ........................................................................................................................ 8 b. Analysis................................................................................................................................. 10 The BCBA – Testimony ....................................................................................................... 10 The Parent/Mother – Testimony ........................................................................................... 11 c. Concluding Remarks and Rationale for Reducing the Award .............................................. 13
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 as Parent, and the student will be referred to as Student.
II. Overview This case involves a demand for “compensatory education” for the 2020-2021 school year (SY). Regarding the remedy of 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 filed the complaint notice on July 22, 2022. (Ex. A) I was appointed as the IHO on July 28, 2022. A hearing was held across multiple dates.[1] The Parent introduced exhibits A-H into the record and called three (3) witnesses: the Neuropsychologist, the Center Director of the Service Provider (“Center Director”), and the Speech/Language Pathologist. The District did not offer any exhibits, nor did they have any witnesses testify on their behalf.
a. Parents’ Position The Parent alleges that the District failed to:
(a) develop a timely and substantively and procedurally valid Individualized Education Plan (IEP);
(b) provide a substantively appropriate program: and
(c) offer a Free Appropriate Public Education (FAPE). (Ex. A 2-3) In the complaint notice, the Parent requests that the Student receive instruction from the service provider. They seek a bank of compensatory education hours for such instruction. The Parent’s Attorney summarized this request as follows: The Parents are looking for 600 to 800 hours of one-to-one reading instruction . . . at their stated rate of $182 per hour. And a total of 414 hours of compensatory speech and language therapy . . . (T. 44) b. District’s Position The District did not present a case in this matter. They did not offer any exhibits, nor did they call any witnesses to testify on their behalf.
c. Background
of the Case In the complaint notice, the Parent provided some insight regarding the 2020-2021 SY: Report cards for the first two marking periods of the 2021-22 school year indicated that [the Student] was “well below standards” or “below standards” for: Reading with sufficient accuracy and fluency to support comprehension; reading and comprehending grade level texts independently; and Demonstrating comprehension by referring to text details. Despite this lack of progress, the CSE did not seek to reconvene.
On July 28, 2022, the Parent filed the complaint notice. (Ex. A) d. Student History The Student was [REDACTED] years old at the start of the 2020-2021 SY. The Student carried a disability classification of Learning Disability.[2] The Student was described as a “polite and friendly girl” in a neuropsychological evaluation administered in November of 2021. This evaluation outlines the Student’s history as follows: [The Student] has long-standing social difficulties, including lack of social initiation with adults and peers, receptive and expressive language deficits, as she is only able to request for some wants and needs, and repetitive behaviors, including significant vocal stereotypy. [The Student] has demonstrated regression in her academic skills as noted by her parents, IEP documents, and ABA provider.
In early childhood, [the Student] did not demonstrate reciprocal social behavior, such as showing or pointing out toys or objects to her mother, she walked around holding toys, rather than playing with them, and did not engage with other children in the playground. Although these behaviors were brought to the attention of [the Student’s] medical providers and she was evaluated at 18-months-old, her autism diagnosis was not picked up until the age of four. [A developmental pediatrician] diagnosed [the Student] with Autism Spectrum Disorder, Attention Deficit/Hyperactivity Disorder, and Intellectual Disability.
She received home based ABA services through the family's insurance from 1/2014 to 6/2016 (from the ages of 3 to 6), until the copayments became too difficult to maintain. … In the middle of the year, home based ABA via insurance was discontinued and [the Parent] reported that [the Student’s] behavior deteriorated. Her tantrums increased, occurring on average 5 times a day. They were sometimes violent and included running, jumping, and hitting her knees to the ground.
It is with this Student profile that I now turn to the legal considerations of the IDEA.
e. 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 IEE 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 Present a Provide the Student a FAPE?
a. Legal 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. Regarding the procedural standard, 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 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. Analysis
I first look to the Parent’s allegations to determine the scrutiny to apply in evaluating the District’s presentation. Regarding the Student’s 2021 IEP, the Parent raises the following concerns: The IEP’s goals and supports were inadequate. Despite the well-documented concerns re:
reading and speech and language, there was only one reading goal (to be able to read words with vowel teams) and three speech goals (answering cause and effect, inference, prediction, and main idea questions, refraining from inappropriate laughter, and making courteous and constructive remarks to others). For instance, neither the goals, nor the I.E.P. in its entirety, addressed [the Student’s] “very poor awareness of the phonological (or sound) structure of oral language,” as stated in her neuropsychological report. The I.E.P did not adequately suggest goals or supports to address her fluency and comprehension which were deemed to be in the “poor” range. (Ex. A-2) This is the backdrop in which I weigh the District’s inaction, ever 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.
The District conceded to the extent that they did not defend any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the complete failure to defend, I find that the District fell short of their burden in this case.
c. Conclusion
Upon review, I find that the District failed to demonstrate that they met their burden in providing the Student an IEP tailored to meet her individualized needs. I, therefore, rule for the Parent on Prong I.
IV. Is Compensatory Education an Appropriate Remedy for Denial of a FAPE?
a. 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]).
SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).
In fashioning an appropriate award of compensatory education, one must be aware 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.
b. Analysis
The Neuropsychologist – Testimony The Neuropsychologist who evaluated the Student in November of 2022 testified on the Parent’s behalf. He gave an outline of academic limitations uncovered via the evaluation:
Academic functioning was delayed in all areas. [The Student’s] math performance was below normal limits and was marked by underdeveloped mathematical computation, applied math problemsolving, and math skills. [The Student’s] reading performance was variable. She presented below-grade-level word reading, phonological nonsense-word decoding, and intact reading comprehension skills. [The Student’s] performance on written expression was below normal limits.
She presented substantial writing weaknesses, including spelling and building and synthesizing sentences. She evidenced errors with grammar, spelling, capitalization, and punctuation. (Ex. F-5) To address these weaknesses along with the Student’s struggles with depression, anxiety, and ADHD, the Neuropsychologist formulated several recommendations regarding services and placement. These recommendations include: 1) Placement in a school that provides: a) access to specialized academic instruction and support for social-emotional development; b) Teachers trained in empirically supported methods of dyslexia remediation; and, c) A peer group well-matched to her well-behaved and sensitive nature; and, 2) Services and supports, including: a. Speech therapy; b. Counseling; c. Occupational therapy; and, d. Management of her “sensory diet” in the classroom (prescribing movement breaks at appropriate times, etc.) (Ex. F 7-9)
The Center Director of The Service Provider – Testimony The Center Director of the Service Provider testified on the Parent’s behalf. Her description of the Student (ex. G 1-4) matches that of the Neuropsychologist in all essentials. She recommends for the Student two different programs, each of which addresses her sensory-cognitive weaknesses: [Program One] provides sensory-cognitive development of symbol imagery the ability to visually image sounds and letters within words. Dual coding with imagery and language supports the development of phonemic awareness through the multisyllable level, visual memory, word attack, word recognition, spelling, contextual reading (both accuracy and fluency), and reading comprehension. The program develops the imagery language connection for spontaneous self-correction and accurate, fluent contextual reading.
[Program Two] provides sensory-cognitive development of concept imagery-the ability to create an imaged gestalt (whole) from oral and written language. This dual coding processing with imagery and language supports the development of oral vocabulary, oral language comprehension, reading comprehension, written language expression, ability to follow directions, and critical/analytical thinking. (Ex.
G-4) These services can be rendered by the Service Provider. The Center Director provided her best estimate of the potential specifics of such a provision:
[The Student’s] scores indicate that it is reasonable to expect that long-term intervention will be necessary, likely to range from 600 to 800 hours. As stated previously, we cannot determine the finite amount of instruction necessary due to the many variables and individual responses to sensory input during the instruction period. It is important to note that for the reasons stated above this range is provided for planning purposes only. The rate for 1-1 instruction is $182 per hour. (Ex. G-4)
The Speech/Language Pathologist – Testimony The Speech/Language Pathologist testified on the Parent’s behalf. Her assessment of the Student’s abilities agrees with those of the Neuropsychologist and the Center Director. (Ex. H 1-3) She recommends “compensatory services in the form of a bank of 414 speech and language hours.” (Ex. H-3) Specifics may be found in her affidavit (exhibit H), signed January 25, 2023.
c. Concluding Remarks
I credit the Parent’s exhibits and witnesses for articulating the appropriateness of the award.
Moreover, the Parent has established that such services are necessary to permit the Student to benefit from instruction.
It is therefore ORDERED
1. The District shall create a bank 4 5of:
a. 600 hours tutoring
b. 400 of specialized Speech language therapy
Dated: May 25, 2023
Martin J. Kehoe III, Esq. Impartial Hearing Officer
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).
5 These two banks of hours shall be reduced by any hours of such services that were ordered on an interim basis. See Interim Order dated February 3, 2023.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District as 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 across the following dates: August 31, 2022; November 1, 2022; January 11, 2023; February 2, 2023; April 27, 2023.
[2] 8 NYCRR Part 200.1(zz) (1) Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.
[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).