NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 229774
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
Office: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parents
Dates of Hearing: September 27, 2022
October 27, 2022
November 28, 2022
January 4, 2023
January 30, 2023
March 6, 2023
March 29, 2023
April 24, 2023
May 30, 2023
June 5, 2023
June 27, 2023
July 27, 2023
August 15, 2023
September 28, 2023
Actual Record Close Date: November 10, 2023
Hearing Officer: Maria R. Dispenza, Esq./IHO
NAMES AND TITLES OF PERSONS WHO APPEARED
September 27, 2022
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
October 27, 2022
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
November 28, 2022
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
January 4, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
January 30, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
March 6, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
March 29, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
April 24, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
May 30, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
June 5, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
June 27, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
July 27, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED], DOE Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
August 15, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
NAMES AND TITLES OF PERSONS WHO APPEARED
September 28, 2023
For the Student:
[REDACTED] [REDACTED]
For the Department of Education:
[REDACTED]
INTRODUCTION
On August 12, 2022 I was appointed by the New York City Department of Education (DOE) to act as the impartial hearing officer (IHO) in a case brought under the Federal Individuals with Disabilities Education Act (IDEA) [20 USC §1415(f)(3)] (“IDEA”) by the parents (Parents) of [REDACTED] ([REDACTED]) for the 2020/21, 2021/22 and 2022/23 school year. The Parent requested the hearing by filing an impartial hearing request with DOE on or about August 12, 2022 and thereafter amended and accepted by the DOE on or about August 15, 2022 and again on or about August 17, 2022. The Due Process Complaint (DPC) is carried under New York City (“NYC”) Case No: 229774. The impartial hearing was held over a series of dates, to complete the record on September 28, 2023. The timelines have also been extended to allow the parties opportunity to fully prepare, secure witnesses and obtain transcripts. The record officially closed on November 10, 2023. A list of persons who appeared at the hearing and the documents entered into evidence is annexed hereto.
BACKGROUND AND POSITION OF THE PARTIES
The student, [REDACTED], has been classified as a student with “Autism” (Exhibits A, G-I). He has been diagnosed with an intellectual disability and has a long history of serious behavioral issues (Exhibit A). He has frequently cycled between hospitalization and the home due to increasingly aggressive, violent and defiant behavior (Exhibit A). Due to said behavioral issues [REDACTED] has been unable to receive a school placement for years and has failed to receive home instruction consistently as the DOE holds safety concerns for the instructors (Exhibit A). The most recent IEP is dated March 21, 2023 and recommends for [REDACTED] to attend a 6:1+1 special classroom/Interim District 75 along with the following related services: Counseling (1x40, group and 1x40, 1:1); Occupational Therapy (3x40, 1:1); Speech Language Therapy (3x40, 1:1); Physical Therapy (2x40, 1:1) and an individual paraprofessional for health, toileting and safety along with Adapted Physical Education (5 times per week) (Exhibit I). He has been recommended a state approved nonpublic residential school. However, due to his behavioral issues no residential school has been willing to accept him (T @ 107). At the time of the substantiative hearing [REDACTED] was at the [REDACTED], an inpatient care facility (T @ 107).
Parent alleges the DOE has denied [REDACTED] a Free and Appropriate Public Education (FAPE) as follows: for the 2020/21 school year by duplicating his previous IEP verbatim; failing to place [REDACTED] in a setting where he could make appropriate progress; failing to provide applied behavioral analysis (ABA); failing to evaluate [REDACTED]; and making other procedural and substantiative errors. For the 2021/22 and 2022/23 school years by failing to find an appropriate school setting; failing to provide applied behavioral analysis (ABA); failing to evaluate [REDACTED]; and making other procedural and substantiative errors and failed to develop an IEP for the 2022/23 school year.
Via the DPC, parents seeks a finding that [REDACTED] was denied a FAPE for the 2020/21, 2021/22 and 2022/23 school years and seeking funding for a series of evaluations, assessments and the like, as well as extensive compensatory services to address the denial of FAPE for those years (Exhibit A). The Parties resolved through settlement discussions several components of sought relief, limiting the relief sought herein as: (1). 900 hours of compensatory tutoring to be provided by [REDACTED] ([REDACTED]) at a rate of $150 per hour; (2). 220 hours of compensatory speech-language services to be provided by [REDACTED] ([REDACTED]) at a rate of $210 per hour; (3). 270 hours of compensatory occupational therapy services to be provided by [REDACTED] at a rate of $210 per hour; (4).
80 hours of compensatory physical therapy services to also be provided by [REDACTED], at a rate of $210 per hour; (5). 23 hours of per week of applied Behavioral Analysis (ABA) to be provided at a rate of $140 per hour by [REDACTED]; and (6). 3 hours per week of Board Certified Behavior Analyst supervision (BCBA) supervision to be provided also by [REDACTED] at a rate of $250 per hour (T @ 108).
In an effort to support their position, the parent submitted a documentary exhibit package consisting of seventeen pieces of evidence (Exhibits A-Q), which included affidavit testimony of several providers and professionals (Exhibits C, D, F, N and P).
At the hearing, the DOE’s representative waived an opening statement, represented it would not be presenting documentary or evidence or witness testimony to overcome its burden of proof; opted not to cross-examine parent witnesses and waived a closing statement. The DOE did not object to any of Parent requested relief (T @ 106, 111).
FINDINGS OF FACT AND DECISION
The Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) was enacted with the primary purpose to ensure that students with disabilities have available to them a free and appropriate public education (FAPE) (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 S. Ct. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a comprehensive written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.22). An IEP is designed as a "written statement" that addresses the educational needs of a child with a disability (20 U.S.C. § 1401[14]; 34 C.F.R. § 300.22; 8 NYCRR 200.1[y]). At the beginning of each school year, a school district is required to have an IEP in effect "for each child with a disability in its jurisdiction" (20 U.S.C. § 1414[d][2]; 34 C.F.R. § 300.323[a]; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 194 [2d Cir. 2005] (finding the district fulfilled its legal obligations by providing the IEP before the first day of school). The student's recommended program must also be provided in the least restrictive environment (LRE) (34 C.F.R. § 300.114[a]; 8 NYCRR 200.6[A][1]). A FAPE is offered to a student when the board of education (a) complied with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Bd. of Educ. v. Rowley, 458 U.S. at 176, 206, 207 [1982]). The IDEA directs that, in general, a decision by an impartial hearing officer or state review officer must be made on substantive grounds based on a determination of whether or not the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). Under the IDEA, if a procedural violation is alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits to the child (20 U.S.C. § 1415[f][3][E][ii]; see 8 NYCRR 2005[j][4][ii]). The IDEA mandates that a student with a disability be provided with a FAPE tailored to meet his unique needs and one that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas Cty. Sch. Dist., 580 U.S. ___, 137 S.Ct.988, 999 (2017). A focus on the particular child is at the core of the IDEA. Endrew F., 137 S. Ct. at 999. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and thereon determine the type of program required for the child.
The case at hand is not a tuition reimbursement. The parents are seeking compensatory education in the form of (1). 900 hours of compensatory tutoring to be provided by [REDACTED] at a rate of $150 per hour; (2). 220 hours of compensatory speech-language services to be provided by [REDACTED] ([REDACTED]) at a rate of $210 per hour; (3). 270 hours of compensatory occupational therapy services to be provided by [REDACTED] at a rate of $210 per hour; (4). 80 hours of compensatory physical therapy services to also be provided by [REDACTED], at a rate of $210 per hour; (5). 23 hours of per week of applied Behavioral Analysis (ABA) to be provided at a rate of $140 per hour by [REDACTED]; and (6). 3 hours per week of Board Certified Behavior Analyst supervision (BCBA) supervision to be provided also by [REDACTED] at a rate of $250 per hour (T @ 108).
Claim of FAPE denial:
A FAPE begins with an IEP developed by its CSE through the IDEA’s procedures that is “reasonably calculated” to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-207; Cerra v. Pawling Cent. Sch. Dist. , 427 F. 186, 192 (2d Cir 2005). The DOE bears the burden of establishing the appropriateness of its recommendations.
An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the child’s needs, establishes annual goals and short-term instructional objectives which are related to the child’s educational deficits, and provides for the use of appropriate special education services to address the child’s special education needs. Application of a Child with a Disability, Appeal No 93-12; Application of a Child with a Disability, Appeal No 93-9; Application of a Child with a Handicapping Condition, Appeal No 92-7; Matter of Handicapped Child, 22 Ed Dept Rep 487, March 11, 1983. Under 20 U.S.C. Section 1414(d)(3)(A), the IDEA mandates an IEP team to consider a child’s strengths, weaknesses and deficiencies, as well as the results of the most recent evaluations of the child together with developmental and functional needs of the child. In order to determine the student’s requirements and needs, the team must review and consider evaluations, assessment and information provided by the child’s parents, teachers and service providers and determine the type of program required for the child. Herein, the DOE presented it would not be defending its burden of proof. The SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.” Application of a Student with a Disability, 01-
044 (SRO March 27, 2002). The DOE’s silence at hearing has the effect of conceding every point alleged by the parent against the DOE unless it is inconsistent with the hearing record.
Id. Herein, there are no inconsistencies and no further analysis is required as a FAPE denial is deemed conceded. Equitable Considerations -are there any equitable factors which mitigate against the parents right to recovery
In weighing the equities, “the critical consideration, as the Court sees it, is whether the parents have cooperated in good faith to attempt to develop an IEP to the maximum extent possible, Schaffer, supra. The DOE did not raise any equity considerations and there is nothing in the record to show that the parents were anything other than cooperative with the DOE. The record does not reflect anything to bar or mitigate the requested relief.
Compensatory Education
The IDEA allows a hearing officer to fashion an appropriate remedy. P. v. Newington Bd. of Educ., 546 F.3d 111 (2d Cir. Conn. Oct. 9, 2008). The Second Circuit has held that compensatory education is an available option under the IDEA to make up for denial of a FAPE. P. v. Newington Bd. of Educ., 546 F.3d 111(affirming compensatory education award for elementary school student and citing Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990)); See also Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir.
2005).
As set forth by the Second Circuit in Doe v. East Lyme Bd. of Educ.:
In any action brought under the IDEA, the court "shall grant such relief as the court determines is appropriate." 20 U.S.C. § 1415(i)(2)(C)(iii). …… "[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing." Carter, 510 U.S. at 16 (citation and internal quotation marks omitted). An award of damages is not available, Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002); but a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies, Burlington, 471 U.S. at 369; Polera, 288 F.3d at 486. 790 F.3d 440,454 (2d Cir., 2015) (emphasis added).
The Second Circuit in Doe v. East Lyme Bd. of Educ., adopts the following standard: "[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." 790 F.3d at 457 (citing Reid, 401 F.3d 516 (D.C. Cir. 2005); see also M.W. v. N.Y. City Dep't of Educ., 2015 U.S. Dist. LEXIS 112832 (S.D.N.Y. Aug. 25, 2015). 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 School Committee of Burlington v. Department of Education, 471 U.S. 359, (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").
The purpose of compensatory education is to make up for failure to provide appropriate educational services in the past. An award of compensatory education is an equitable remedy that should “aim to place disabled children in the same position they would have occupied but for the school districts violation of the IDEA.” Reid, 401 F.3d at 518. Such an award serves "to compensate a student who was actually educated under an inadequate IEP" and "to catch-up the student to where he should have been absent the denial of a FAPE." Brennan v. Regional Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 265 (D. Conn. 2008). More specifically, “[c]ompensatory education involves discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed and educational deficit created by an educational agency’s failure over a given period of time to provide a FAPE to a student.” Reid, 401 F.3d at 523 (citing G v. Fort Bragg Dependent Schs., 343 F.3d 295 (4th Cir., 2003).
“Whereas ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more--they must compensate.” Reid, 401 F.3d at 518. In fashioning this relief, compensatory awards will produce different results in different cases depending on the child's individual needs. Some students may need extended programs, perhaps even exceeding hourfor-hour replacement of time spent without FAPE. Others may require only short, intensive compensatory programs targeted at specific problems or deficiencies. Reid, 401 F.3d at 518.
Herein, the DOE did not challenge Parent assertions and did not object to Parent requested relief. Moreso, the evidence and testimony presented by parents was uncontroverted and warrants a finding for parent’s requested relief (Exhibits C-D, F, N, J-O, Q).
Parent requests I award: (1). 900 hours of compensatory tutoring to be provided by [REDACTED] at a rate of $150 per hour; (2). 220 hours of compensatory speech-language services to be provided by [REDACTED] ([REDACTED]) at a rate of $210 per hour; (3). 270 hours of compensatory occupational therapy services to be provided by [REDACTED] at a rate of $210 per hour; (4). 80 hours of compensatory physical therapy services to also be provided by [REDACTED], at a rate of $210 per hour; (5). 23 hours of per week of applied Behavioral Analysis (ABA) to be provided at a rate of $140 per hour by [REDACTED]; and (6). 3 hours per week of Board Certified Behavior Analyst supervision (BCBA) supervision to be provided also by [REDACTED] at a rate of $250 per hour (T @ 108).
Parent further requested no expiration date be set for the totality of the compensatory hours sought due to the severity of [REDACTED] 's deficits and the need to make up for lost time (T @ 111). The DOE did not object. Upon due consideration of said circumstances and the DOE’s accord, said request is granted.
Upon due consideration, I find the DOE deprived the student a FAPE for the 2020/21, 2021/22 and 2022/23 school years. Based upon the aforementioned, it is ORDERED:
1. The DOE will provide the student compensatory education in the form of 900 hours of tutoring to be provided by [REDACTED] ([REDACTED]) and prospectively fund same at a rate not to exceed $150.00 per hour;
2. The DOE will provide the student compensatory education in the form of 220 hours of compensatory speech-language services to be provided by [REDACTED] ([REDACTED]) and prospectively fund same at a rate not to exceed $210.00 per hour;
3. The DOE will provide the student compensatory education in the form of 270 hours of compensatory occupational therapy services to be provided by [REDACTED] ([REDACTED]) and prospectively fund same at a rate not to exceed $210.00 per hour;
4. The DOE will provide the student compensatory education in the form of 80 hours of compensatory physical therapy services to be provided by [REDACTED] ([REDACTED]) and prospectively fund same at a rate not to exceed $210.00 per hour;
5. The DOE will provide the student compensatory education in the form 23 hours of per week of applied Behavioral Analysis (ABA) and prospectively fund same at a rate not to exceed $140 per hour by [REDACTED]; and
6. The DOE will provide the student compensatory education in the form 3 hours per week of Board Certified Behavior Analyst supervision (BCBA) supervision to be provided also by [REDACTED] and prospectively fund same at a rate not to exceed $250 per hour.
These hours will have no expiration date due to the extraordinary circumstances asserted and established herein.
Dated: November 14, 2023
Maria R. Dispenza
MARIA R. DISPENZA, ESQ.
Impartial Hearing Office
NOTICE OF RIGHT TO APPEAL
PLEASE TAKE NOTICE
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.
DOCUMENTATION ENTERED INTO THE RECORD ON September 28, 2023
A. Parent: Second Amended Due Process Complaint, 08/16/22 -6pp B. Resume, [REDACTED], Ph.D., 2023 -7pp
C. Affidavit, [REDACTED], Ph.D., 01/12/23 -1pp
D. Affidavit, [REDACTED], [REDACTED], 01/04/23 -1pp E. Resume, [REDACTED], Psy.D., BCBA, 2023 -5pp
F. Affidavit, [REDACTED], Psy.D., 01/04/2023 -1pp
G. IEP,01/31/20 -28pp
H. IEP, 12/22/21 -30pp
I. IEP, 03/21/23 -36pp
J. Occupational Therapy Evaluation, [REDACTED] 03/02/23 -17p
K. Physical Therapy Evaluation, [REDACTED], 03/03/23 -11pp
L. Speech Language Evaluation, [REDACTED], 02/28/23 -12pp
M. Rate Affidavit: [REDACTED], [REDACTED], 04/25/23 -2pp
N. Affidavit, [REDACTED], [REDACTED], 05/19/23 -3pp
O. Educational Evaluation, [REDACTED], 05/19/23 -4pp P. Resume, [REDACTED], [REDACTED], 2023 -4pp Q. Functional Behavioral Assessment (FBA) and Coversheet, [REDACTED], July/August 2023 -26pp