New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

[REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: May 11, 2023

Actual Record Closed Date: September 11, 2023

Hearing Officer: Robert Rodriguez, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

AUGUST 24, 2023

For the Student:

[REDACTED], Esq., Attorney

[REDACTED], Parent Student

[REDACTED], Director, [REDACTED]

For the Department of Education:

[REDACTED], Esq., District Representative

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”), (20 U.S. Code § 1400), Article 89 of the New York State Education Law, and Section 504 of the Rehabilitation Act of 1973. The Parent brought this complaint alleging that the New York City Department of Education (DOE) has denied the student a FAPE for the 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years by failing to properly fulfill its equitable duties in the development and implementation of an appropriate educational program for this student. The Parent seeks an order requiring the Department of Education (DOE) to fund 1,080 hours of multi-sensory tutoring at an enhanced rate at [REDACTED] (a private agency) to improve the student’s writing, mathematics, and reading comprehension skills to be used within four years; 540 hours of occupational therapy at market rate funding; market rate funding for 540 hours of speech and language therapy; parent counselling and training sessions at market rate with an independent provider of parent’s choosing; and independent Functional Behavior Assessment at marker rate conducted in the home and school setting by a licensed behaviorist with expertise in autism spectrum disorder; and a comprehensive and dynamic vocational assessment to develop transitional skills and postsecondary goals, to be conducted by an independent provider of the Parent’s choosing.

The district contends that the student was not denied a FAPE and as such is not entitled to compensatory education since the parent’s evidence fails to demonstrate that the several IEP’s that were developed for the student were inappropriate. The DOE further asserts that it did not deny the student a Free and Appropriate Public Education since the educational programming it offered /NYC: 229806 the student was reasonably calculated to provide him with reasonable educational benefit(s). The district did not present any witnesses and rested on the documentary evidence it submitted. It did, however, cross-examine the two parent witnesses who testified at the hearing.

The school district will be referred to as “District” or “DOE”, the parent as “Parent”, and the student will be referred to as the “Student”. I was appointed as IHO on August 16, 2022.

FINDINGS OF FACT

The student is a [REDACTED]-year-old boy who is currently in the 8th grade for the 2022-2023 school year in an 8:1:1 special class in all academic subjects and receives the related services of occupational therapy and speech and language therapy (Ex. A-2, T. 26-27, DOE 6-1). At 2.5 years old, the student was diagnosed with Pervasive Development Disability-Not Otherwise Specified (PDD-NOS) and autism-spectrum-disorder (“ASD”) with accompanying intellectual and language impairment (Ex. G. pp. 2). The parent and the student resided in [REDACTED] through the 2018-2019 school year (Id). While in [REDACTED], he was also diagnosed with childhood apraxia of speech (“CAS”) and hyperlexia (Ex. I-1, Ex. D-). He repeated fourth grade in [REDACTED] due to his limited progress (Ex. LL-2). In October 2019, the student moved to Queens, NY after the start of the 2019-2021 school year where he began 5th grade at P.S. 11 in Queens. (Ex. X-5, LL-2-3).

On October 16, 2019, the Committee on Special Education (“CSE”) developed a Comparable Service Plan based on the student’s last individualized education plan (“IEP”) in [REDACTED] (Ex. LL-2; Ex. Y). The student received the special education classification of a student with Autism and was placed in an integrated co-teaching class (“ICT”) with special /NYC: 229806 education teacher support services (“SETSS”) (2 / week 1:1 for a period and 3 / week in a group for a period) (Ex. X-19-20). The CSE recommended the related services of OT (1 / week x 30 mins and 2 / month x 15 minutes), and speech and language therapy (“SLT”) (2 / week x 30 mins in a group and 1 / week x 30 minutes 1:1) (Ex. X-20). Despite the special and related services the student was receiving, his instructional/functional levels were listed at 2nd grade in reading and 3rd grade in math (Ex. X-25).

In November and December of 2019 and January 2020, the District conducted a series of evaluations, including a Psychoeducational Report, on the student (Ex. E, F, G, H, I). The Individualized Education Plan (“IEP”), dated December 18, 2019, recommended Integrated CoTeaching for Math, English Language Arts, Social Studies and Sciences. The IEP further recommended Special Education Support Services (SETSS) for Math and English Language Arts. Regarding related services, the IEP recommended Occupational Therapy (“OT”), Speech Language Therapy (“SLT”), a paraprofessional for behavior support and a tablet for note taking (Ex. 6-24, 25). Subsequently, the CSE convened an IEP meeting on January 22, 2020, to provide the student with an IEP for the remainder of the 2019-2020 school year (Ex. X). The CSE again recommended an ICT classroom with SETSS in a group (Ex. X. pp. 19-21).

Concerned about the lack of progress the student was making and the findings in the psychoeducational report, the parent requested that the district fund an independent neuropsychological evaluation, which was approved by the DOE (Ex. GG-3, HH-4, JJ-1, LL- 8). Consequently, the student was evaluated by Dr. [REDACTED] on June 28, and 29th of 2021 (Ex. B). The report diagnosed the student as having an Intellectual Disability and autism spectrum disorder (“ASD”) (Ex. C. pp. 3). The report further highlighted the student’s low reading comprehension and decoding skills. The neuropsychological report concluded that with the /NYC: 229806 appropriate program and services, the student could achieve significant progress by implementing the following recommendations by:

1) Implementing a fulltime, specialized educational program that is grounded in behaviorally based learning principles … and facilitated by educators that have specialized training and expertise in working with children with ASD;” “behaviorally based interventions to facilitate age-appropriate social communication and adaptive skills …”;

2) Conducting a “functional behavior assessment to help to identify the best instructional techniques to optimize the student’s access to the educational curriculum and behavioral interventions to address ASD symptomology … and augment adaptive behaviors … in the school setting”;

3) Utilizing a classroom setting that is highly structured with a small student to teacher ratio to allow for ample supervision and individualized supports to help him readily engage in classroom activities;”

4) Providing an extended school year; 5) Providing “Explicit SETSS instruction in reading comprehension and written expression;”

6) Utilizing “Focused remediation to improve his arithmetic and math reasoning skills using a multisensory approach;”

7) Providing speech therapy for h three times per week and group ST twice weekly;”

8) Providing “[m]ore frequent individualized occupational therapy (i.e., 2X30) is recommended to address the student's ’s persisting weaknesses in fine motor control and.” (Ex. B- 11, 12).

9) In a Neuropsychological Report Addendum, Dr. [REDACTED] recommended 1:1 instruction in reading comprehension using an empirically supported, multisensory reading comprehension program for a minimum of one hour per day, 5 days per week.” (Ex. D. pp.

1).

Prior to the student entering 7th grade and before the 2021 to 2022 school year, the parent urged the CSE to reconvene an IEP meeting to consider the findings of the neuropsychological report in the student’s educational programming (Ex. JJ. Ex. LL- 9). On August 25, 2021, the CSE /NYC: 229806 convened an IEP meeting where they recommended a 12:1:1 program (Ex. V. 24). Despite requiring individual support as recommended in the neuropsychological report, the CSE again mandated SETSS in a group (Id). The student remained on a 2nd grade functional level in ELA and a 3rd grade level in math (Ex. V. pp. 30-31).

The CSE convened an IEP meeting on September 23, 2021 (Ex. U). Prior to the IEP meeting, the Parent provided the CSE with a letter stating that the student required a program of 1:1 academic support, speech therapy, and OT (Ex. CC). The CSE altered the student’s program from a 12:1:1 to an 8:1:1 because it was determined that the former ratio was inadequate to address the student’s academic needs (Ex. U-6; U-24). The student was not provided with SETSS because the school that would be attending, Shell Bank, did not provide SETSS (Ex. LL-12). Instead, the CSE provided Academic Intervention Services (Id). The Parent sent a letter, dated September 21, 2021, to the CSE, complaining that AIS was inadequate to meet the student needs (Ex. CC-8). In November 2021, the student transferred to [REDACTED] where he did not receive SETSS or AIS.

On January 25, 2022, an IEP meeting was convened (Ex. LL-13, T). Prior to the 2022 IEP meeting, the parent wrote a letter requesting 1:1 SETSS (Ex. AA-1). The CSE recommended an 8:1:1 class, but no SETSS (Ex. T., 26-27). The student did not indicate any progress. According to the Parent, in June 2022, she unilaterally sought out help from [REDACTED] to determine how their multisensory tutoring program could help the student progress (Ex. P., Q). After an evaluation, [REDACTED] concluded that the student required 800-1,000 hours of 1:1 multisensory tutoring to achieve his learning potential (Ex. R-2). Due to financial reasons, the parents were unable to enroll the student at [REDACTED] and are now seeking funding from the DOE for equitable relief in the form of compensatory services (Ex. LL-17). /NYC: 229806

LEGAL ANALSIS

A. ISSUE ONE: WHETHER THE DISTRICT PROVIDED THE STUDENT WITH A

FAPE FOR THE 2019-2020, 2020-2021, 2021-2022, AND 2022-2023 SCHOOL

YEAR(S).

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)(l)(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).1. 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)(l) (McKinney Supp. 2005). /NYC: 229806

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See 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. An IEP is “a written statement that ‘sets out the child’s present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.’” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507–08 (2nd Cir. 2006). Under the IDEA, for a child’s IEP to be adequate, it must be likely to produce progress, not regression, and must afford the student with an opportunity greater than mere trivial advancement. T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 254 (2nd Cir.2009).

However, in Endrew F., the United States Supreme Court interpreted the scope of the “free appropriate public education” requirements under IDEA and heightened the responsibility of school districts from merely providing de minimis educational benefit:

A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “[i]ndividualized education program. §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth. §§1414(d)(1)(A)(i)(I)(IV), (d)(3)(A)(i)-(iv). As we observed in Rowley, the IDEA “requires participating States to educate a wide spectrum of handicapped children,” and “the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between.” 458 U. S., at 202, 102 S. Ct. 3034, 73 L. Ed. 2d 690.Endrew F., 137 S. Ct. at 999 (2017).

The Court’s holding from Endrew F. means that school districts must abandon their /NYC: 229806 negligible and outdated measure of progress for educating special education students, i.e. “trivial" progress and created a stricter substantive obligation for school districts. Under Endrew F, School districts must now customize an appropriate program designed specifically for their needs:

We will not attempt to elaborate on what “appropriate” progress will look like from case to case. It is in the nature of the Act and the standard we adopt to resist such an effort: The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. Id., 137 S. Ct. at 1001.

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). The IDEA requires that parents participate in the process of developing their child’s IESP (34 C.F.R. § 300, Appendix C, Question 26). The IDEA affords parents the roles of participants at CSE meetings, not merely attendees (34 C.F.R. § 300.345(a); 8 NYCRR § 200.4(c)(3)). In a decision by the Southern District of New York, the court provided support as to what constitutes meaningful participation, “[The] parent’s right to participate is not merely the right to speak,” especially where there is no evidence /NYC: 229806 in the IESP that the parent’s input was meaningfully considered (S.Y. v. New York City Dep’t of Educ., 2016 WL 5806859 (S.D.N.Y. 2016).

In New York State, "[t]the 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 (l)(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.

A. Burden of Proof

In this case, the Parent contends that the district failed to meet its burden of demonstrating the appropriateness of the program and related services recommended by the CSE in the 2019, 2020, and 2021 IEPs. The Parent further asserts that the district did not provide any witness testimony to prove that the programs and services it offered the student under these three IEP’s was appropriate and the evidence it proffered was redundant and did not prove that the student was given a FAPE. In addition, the District’s cross-examination of the two witnesses did not support its burden of proof in showing that it did provide an appropriate special education program (FAPE) for the student. In opposition, the DOE argued that from the time the student moved from [REDACTED] on or about October 2019 to New York City, the DOE did take several procedural and substantive measures to ensure the student was provided a FAPE. The CSE developed a comparable IEP for the student until an IEP meeting could be held (LL-2). The CSE held IEP meetings on December 18, 2019, August 11, 2020, June 1, 2021, and January 25, 2022 (Ex. 6, 12,

17 and 21). From 2019 to 2023 M.V. the student attended a New York City public school that was /NYC: 229806 recommended by the CSE team. (LL-3). The student was evaluated on several occasions: Social History Evaluation 11/1/2019; Occupational Therapy Evaluation 1/15/2020 Assistive Technology Evaluation 8/5/2020, 4. Neuropsychological Evaluation 6/2021 (Ex(s). 4, 7, 11, 20). The Parent participated in the IEP meetings along with the other appropriate members of the committee. Substantively, the district contends that the student was making progress academically in line with the December 18, 2019, IEP, the August 11, 2020, IEP and the June 1, 2021, IEP. Therefore, the DOE hypothesizes that the Individualized Educational Programs developed for the student were calculated to provide reasonable academic progress.

In the instant case, the district did not provide any witness to support that a FAPE was provided to this Student for the 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school year, or that the student received individualized special education services as recommended in the neuropsychological evaluation. The documentary evidence and student history in this record demonstrates a clear need for the student to receive individual special education support, as indicated in Dr. Dorfman's pivotal neuropsychological report. The documents in this record demonstrate that the student in fact was evaluated in several instances upon the urging of the DOE. As per the implementing regulations of the IDEA: “A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation... of any person who, because of handicap, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.” (See 34 C.F.R. § 104.35 (a)). However, the record also clearly establishes that most of the evaluations were conducted upon the insistence of the Parent and not the DOE. Furthermore, the record also shows that although the student needed multisensory tutoring and individualized support, the DOE continued to place the student in an /NYC: 229806 inappropriate classroom setting without the additional support he needed. Additionally, the District did not claim that an appropriate program was made available for the student for the 4 school years in question. The evidence and testimony provided by the Parent conclusively proved that the program and related services were overwhelmingly inappropriate for the student, which further exacerbated his academic decline after his arrival from [REDACTED]’s educational system.

B. Was the Student Provided with the Appropriate Program(s).

This case begs the question as to whether the district met the student's unique needs considering his circumstances. The CSE had an obligation to recommend an appropriate educational program that accurately reflected his needs. Application of a Child with a Disability, Appeal No. 04-046. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" Bd. Of Educ.v. Rowley, 458 U.S. 176, 203 (1982). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." (Walczak v. Florida Union Free School District., 142 F. 3d 119, 130 (2d Cir. 2001), see Rowley, 458 U.S. at 189. "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. ____ 404, (2017). The evidence provided supports the premise that the CSE’s ICT and SETSS mandate for the 2019-2020 and 2020-2021 school years were not appropriate considering the student’s need for individualized 1:1 support as stated in the IEPs of 2020. The student did not receive an appropriate classroom size or the appropriate SETSS. (Exs. W., X). To illustrate, during the 2019-2020 and 2020-2021 school years, the CSE recommended a program consisting of an ICT with SETSS and ELA in a group albeit the 2020 IEP specified that the student required a smaller classroom with one-to-one support to make /NYC: 229806 meaningful progress. (Ex. W-20, X-20). The August 2020 IEP included that the student required “individualized, explicit instruction” in writing and “explicit 1:1 reading instruction” math instruction and writing instruction (Ex. W. 4, 5). The CSE further included in the August 2020 IEP that even with the significant amount of individual support the student is provided in all subjects, he still “struggles to complete his work” and “benefits from having concepts retaught and reinforced to him individually to retain new information.” (Ex. W- 4, 5). The January 2020 IEP likewise included statements regarding the student’s academic deficiency and poor social functioning, requiring individual support (Ex. X-5, 6, 7, 9). At the January 2020, August 2020, and Sept. 2021 IEP meetings, the student was classified as reading on a 2nd grade level and performing math on a 3rd grade level (Ex. U.-31, V-30, 31, W.-26, X.-24. Thus, his functional / instructional levels had remained the same. The evidence showed that the student failed to make progress in the recommended program consisting of an Integrated Co-Teaching class (“ICT”) with SETSS. The student continued to fail despite the recommendations by Dr. Dorfman that the student will progress “with the appropriate multi-modal interventions in a supportive academic environment (Ex. B. pp. 10-11). 2.

Another dubious action by the CSE was its failure to provide the student with SETSS during the 2021-2022 and 2022-2023 school years despite the 2021 and 2022 IEP’s calling for the student to receive 1:1 individualized support (U-4). The student’s need for individualized support was confirmed by the neuropsychological report which recommended “intensive, explicit SETSS instruction in reading comprehension and written expression. The student required focused remediation to improve his arithmetic and math reasoning skills using a multisensory approach (Ex. B-12). The report also recommended “1:1 instruction in reading comprehension (Ex. D-1). After comprehensive testing and being aware that the student needed individual support, the CSE /NYC: 229806 did not recommend SETSS in the 2021 or 2022 IEPs. The failure to provide SETSS contributed to the student’s overall academic stagnancy.

C. Whether the District Provided the Student with the Appropriate Related Services.

The record indicates that the student was in dire need of related services in speech and language therapy and occupational therapy, yet the CSE failed to recommend an appropriate amount of SLT and OT or undertake an FBA or recommend a BIP despite his need of these services to learn effectively. An IEP’s recommendations for related services must be reasonably calculated to enable a student to make appropriate progress considering the student's circumstances. Throughout the 2019-2023 school year(s), the student has made poor or no progress with his speech and language, fine motor control, executive functioning, socialization, and his sensory processing difficulties.

Although the 2020 IEPs and the August 2021 IEP recommended group SLT twice per week and individual SLT once per week this was not sufficient individualized support to allow the student to make meaningful speech and language progress (Ex. X-25, W-20, V-24-25). The 2019 SLT Report determined that the student’s language skills fell in the “low and very low” ranges of functioning as per his scores on the Clinical Evaluation of Language Fundamentals-5th Ed (Ex, EE-2, K-8). The 2019 SLT Report stated that “[a]s a result of [the student’s] receptive and expressive language deficits, he has difficulty with listening comprehension ... understanding stories, or new information presented verbally ...” which “may hinder his ability to learn new classroom material.” (Ex. K-9). Moreover, the student faced difficulty communicating with peers and teachers (Ex. T-6, U-8, V-8, W-7). The January 2020 IEP noted the student’s language which /NYC: 229806 hindered his ability to learn, and use utilize correct vocabulary, formulate linguistically complex sentences, and generate an appropriate oral narrative when presented with visual support (Ex X-9). The student also exhibited difficulty in maintaining eye contact and did not converse with others well. The August 2020 IEP similarly showed that the student was having difficulty communicating with students and teachers (Ex. W-3). The 2021 IEPs, the CSE concluded that the student has continued to have difficulty communicating with students and teachers. The 2022 IEP attributed the student’s lack of participation as deriving from his deficits in functional verbal communication and difficulty verbalizing his needs, wants, and/or thoughts (Ex. T-7).

The neuropsychological report indicated that the student wanted to interact and communicate with others but lacked the appropriate social and communication skills to do so (Ex. B-8). The CSE was aware of this problem when the Parent sent a letter stating the student needs more direct 1:1 systematic instruction in language skills to improve his relationship-building and participation in school (Ex. BB-8, CC-5, DD-6). While the CSE added an additional SLT group session to the September 2021 IEP, and an additional individual session of SLT to the January 2022 IEP, it was still not sufficient to allow for meaningful progress (Ex. T-27, U-25). Despite Dr. Dorfman’s recommendations that the student required more individual speech therapy to improve his general expressive and receptive language functioning and related functional communication skills (Ex. B-12), the CSE failed to provide the student adequate SLT services.

Regarding occupational therapy, the student was evaluated on October 25, 2019, November 19, 2019, and November 21, 2019 (Ex. I). The evaluations revealed that the student had difficulty with organization, following class routines and multi-step activities (Ex. I-3). Despite not making progress with his recommended OT, the OT mandate in the 2020 IEPs and the 2021 /NYC: 229806 IEPs did not change (Ex. X-20, W-20). However, the CSE increased the OT by only 10 minutes in the September 2021 and August 2021 IEPs (Ex. W-20, X-20). Whereas, in the 2022 IEP, OT was increased by 20 minutes per week but was not sufficient for the student to progress with his fine motor deficits (Ex. T-27). The neuropsychological report indicated that the student had below age-expectation in “fine motor control and coordination and general graphomotor functioning.” (Ex.-9). The neuropsychological report recommended that the student receive more frequent individualized occupational therapy to address his weakness in fine motor control and coordination (Id.,12). Despite the report's findings and recommendations and the Parent’s concern letters to the CSE that the student required additional hours of OT, the CSE did not provide additional OT (Ex. BB-3; Ex. CC-3 Ex. DD-3).

E. PROCEDURAL VIOLATIONS

To determine whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either

1) impeded the student’s right to a free and appropriate public education,

2) significantly impeded the parents’ opportunity to participate in the decision-making process, 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.

Here, the DOE contends that the DOE did not commit any procedural violations since the CSE immediately developed a comparable IEP for the student upon his inception in the NYC /NYC: 229806 public school system (LL-2). Also, several IEP meetings were held on December 18, 2019, August 11, 2020, June 1, 2021, and January 25, 2022. (Ex. 6, 12, 17 and 21). The student also attended NYC public school throughout his enrollment from 2019 to 2023 (LL-3). Numerous evaluations were conducted of the student, and the Parent participated in all meetings. The DOE emphasized that the student did make academic progress. A review of the student’s IEP for December 18, 2019, shows that he had made progress in math and speech (Ex. 6-22, Ex. 12-13). The DOE further contends that while the student had not achieved these goals, he was making progress toward the goals. Therefore, the DOE concludes that the Individualized Educational Programs developed for the student were calculated to provide reasonable academic progress.

However, despite the DOE’s best efforts to provide a FAPE for the student and procedurally comply with the IDEA, it came up short much too often to help the student progress academically, socially, and behaviorally. The DOE shortcomings in respect to this student was benign neglect. Although it did respond to the Parent’s concerns, their actions culminated in programs that were irresponsive to the actual needs of the student and blatantly ignored the recommendations of the neuropsychological reports and the IEP’s themselves. For instance, the August 2021 Annual IEP review was not timely held albeit NYS regulations require that the IEP reviewed and, if appropriate, revised, periodically but not less than annually to determine if the annual goals for the student are being achieved.” 8 NYCRR 200.4. Also, for the 2020-2021 school year the CSE convened an IEP meeting on August 11, 2020, but the CSE did not conduct an annual review to determine if the annual goals were achieved for the 2021-2022 school year until August 25, 2021 (Ex. V). The DOE within a reasonable period, must convene an IEP meeting to address the student's lack of progress. 34 CFR 300.324 (b)(ii). Here, the student had not made progress “within a reasonable period of time,” the CSE failed to convene an IEP meeting to address his /NYC: 229806 failure to make progress (34 CFR 300.324 (b)(ii)(A). Despite the DOE’s efforts, the student’s academic levels remained at a 2nd grade level in reading and 3rd grade in math in his 2020 and 2021 IEPs (Ex. U-31, V-30, 31, W.-26, X-24). In his 2022 IEP, he was shown to have advanced only one grade level in reading to a third-grade level and a fifth-grade level in math (Ex. T-35). Thus, the student continues to significantly score below his 8th grade level. Despite this downward trend, the CSE continued to recommend an inadequate program and related services that could not meet the student’s unique needs.

ISSUE II: WHETHER THE STUDENT IS ENTITLED TO THE COMPENSATORY

EDUCATION REQUESTED.

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]. The purpose of an award of compensatory education is to provide an appropriate remedy for the deprivation of a FAPE. See, e.g., E.M. v. New York City Dep’t of Educ., 758 F.3d 442,451 (2d Cir 2014). The compensatory award must be “designed to compensate the student for the district’s failure to offer the Student a FAPE.” (Id.; See Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC 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”); see also Bd. of Educ. v. L.M. 478 F.3d 307, 316 (6th Cir. 2007) Moreover, compensatory relief should be consistent with the standard established in Rowley that educational progress be commensurate with a student’s needs and abilities and specially designed instruction should provide some educational benefit and not be aimed at maximizing a student’s educational /NYC: 229806 opportunity. See M.C. ex rel. Mrs. C. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 62 (2d Cir.

2000) citing, Rowley, supra at 3034. The aim of compensatory education is not to guarantee a particular result or level of student achievement, nor to penalize a school district for a deprivation of FAPE; instead, “an award of compensatory education 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.” Application of a Student with a Disability, Appeal No. 19-026. In this case, the requested relief is 1,080 hours of intensive one-on-one evidence based, multisensory reading instruction provided by [REDACTED], and a bank of compensatory education hours of 1:1 instruction including related services to compensate for the DOE’s denial of a FAPE for the 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years.

Here, the District argues that [REDACTED] are not specialized educational program providers who have reasonable qualifications that are specifically related to the student’s deficits since its clinician only have 80-hours (two weeks) of training prior to working with students (Tr. 74), have no teaching certification and some do not have undergraduate degrees yet or a special education background(Tr. 74-77). For these reasons, the compensatory education requested by Parent should be denied.

Special education provider means "an individual qualified pursuant to section 200.6(b)(3) of this Part who is providing related services, as defined in paragraph (qq) of this section, to the student" (NYCRR 200.1[xx]). A provider at a unilateral placement need not meet state standards but must be able to adequately address the student's needs. While a teacher at a unilateral placement need not be state-certified (Carter, 510 U.S. 7, 14 [noting that unilateral placements need not meet state standards such as state certification for teachers]), there must be objective /NYC: 229806 evidence of special education instruction or supports that are specially designed by student's providers at the private school who have reasonable qualifications that are specifically related to the student's deficits (see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 387 [2d Cir. 2014].

The Parent, on the other hand, counters that the relief requested for the district’s failure to provide the student with a FAPE would reasonably and efficiently place him in the position he would have been in had the district complied with its obligations under the IDEA. (Educ. Law § 4404[1][c]). The parents allege that the district failed to provide the student with an appropriate program and services over multiple school years which caused him to fail academically. Dr. Dorfman recommended, in the Neuropsychological Report Addendum that the student requires 1:1 instruction in reading comprehension using an empirically supported, multisensory reading comprehension program for a minimum of one hour per day, 5 days per week (Ex. D-1). Ms. MacGown testified that the student requires at least 800-1,000 hours of 1:1 evidenced-based, multisensory reading program and math program (Tr- 82, 17-22).

The law provides hearing officers with broad authority to respond to FAPE violations and it takes a protective stance against the possibility of repeated harm due to a FAPE violation that would escape review, even when the underlying issues are moot. The courts have found that “[d]ue to the changing nature of a student's IEPs from one school year to the next, mootness "is a recurring phenomenon in students' suits to vindicate . . . rights associated with the conditions of their education." M.R. v. South Orangetown Cent. Sch., No. 10-CV-1800 (CS), at *14 (S.D.N.Y. Dec. 16, 2011) (citing to Patskin v. Bd. of Educ. of Webster Cent. Sch. Dist. 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008). This includes cases where the district has had a history of consistently /NYC: 229806 depriving a student of FAPE based upon the same already been determined inappropriate reasons. M.R. v. South Orangetown Cent. Sch., No. 10-CV-1800 (CS), at *16-17 (S.D.N.Y. Dec. 16, 2011) (citing to M.B. v. Granville Cent. Sch. Dist., No. 06-CV-576 (N.D.N.Y. Mar. 10, 2008).

The IDEA directs that, in general, a decision by an impartial hearing officer shall be made on substantive grounds based on a determination of whether the child received a FAPE (20 U.S.C. § 1415[f][3][E][i]). While there exists no exact legal outline of what a “FAPE” is, the general standard is an IEP developed by a CSE through the IDEA's procedures reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206, 207. The DOE may be required to reimburse a parent for educational services obtained privately for a student if, as a first and necessary criteria, the services offered by the DOE are deemed inadequate or inappropriate. See Burlington School Comm. v. Dep't of Educ., 471 U.S. 359 (1985) and Florence County School Dist. v. Carter, 510 U.S. 7 (1993). Furthermore, it is important to note that, under the IDEA, a hearing officer’s decision must be based on both procedural and substantive grounds whether the student received a FAPE. To reiterate, in evaluating whether the DOE has complied with the procedural requirements of the IDEA, a hearing officer must consider whether the alleged procedural violation either

1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ 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. /NYC: 229806

Regarding the remedy herein, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) because the courts act in equity when remedying IDEA violations and must "do equity and... mold 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]. In this case the district has provided no basis for any alternative compensatory program or provided any evidence that the program put forth by the Parent and supported by witnesses is inappropriate or ineffectual. The DOE does not specifically and appropriately remediate the harm suffered by this Student as the district failed to provide a FAPE for the years in question. The Parent has provided sufficient evidence that the student required individual support and that the program(s) offered by the DOE were inappropriate and insufficient.

For all the reasons stated herein, I find that this student has been denied a FAPE on an equitable basis for the 2019-2020, 2020-2021, 2021-2022 and 2022-2023 school years. In this instance, the DOE has failed to adequately assess his needs, create appropriate IEP’s and make and implement an effective educational program that would enable this student to receive educational benefit and remain in the least restrictive environment. Furthermore, the parents have been responsible and cooperative throughout their dealings with the district, and they should not be denied the equitable relief they are seeking.

It is therefore Ordered as follows:

1. DOE shall fund 1,080 hours of intensive one-on-one multisensory tutoring in the amount of $182.00 per session provided by [REDACTED] or similar methodology, to be used within three years. (Calculation: 2 hours per day multiplied by 540 days = 1,080 (540 days = 180 school days in a year, multiplied by 3 school years).

2. DOE shall fund 540 hours of speech and language therapy.at market rate (Calculation: 1 hour per day multiplied by 540 days = 540). /NYC: 229806

3. DOE shall fund 540 hours of occupational therapy at market rate. (Calculation: 1 hour per day multiplied by 540 days = 540).

4. DOE shall fund an independent Functional Behavior Assessment at market rate conducted in the home and school settings by a licensed behaviorist (such as a board-certified behavior analyst, BCBA) with expertise in autism spectrum disorder and an independent Behavior Intervention Plan; and

5) DOE shall fund a comprehensive and dynamic vocational assessment to develop transition skills and post-secondary goals, to be conducted by an independent provider of the parent’s choosing.

6) The DOE shall pay reasonable attorney fees to the Law Offices of [REDACTED], PLLC to maintain this action on behalf of the parents.

7) This Order shall take effect no later than 35 days from the date of execution.

Dated: September 11, 2023

Robert Rodriguez

Robert Rodriguez, ESQ.

Impartial Hearing Officer

NOTICE OF 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

STUDENT

A Demand for due process, 8/11/22, 22 pages

B Neuropsychological evaluation report, 6/28/21 and 6/30/21, 12 pages

C Neuropsychological summary, 8/11/21, 14 pages

D Neuropsychological evaluation report addendum, 6/28/21 and 6/30/21, three pages

E Psychological evaluation, 2/28/22, four pages

F Psychoeducational evaluation, 11/18/19, nine pages

G Social history report, 11/1/19, six pages

H Physical therapy evaluation, 12/6/19, 24 pages

I Occupational therapy evaluation, 10/25/19, 11/19/19, and 11/21/19, nine pages

J iReady diagnostic math, 2/3/22, one page

K Speech-language evaluation, 12/5/19, ten pages

L iReady diagnostic math, 11/29/21, six pages

M iReady diagnostic in reading, 11/30/21, six pages

N Winter of 2021 math growth report, unidentified date, three pages O 2020 to 2021 New York State assessments, unidentified date, two pages

P Learning ability evaluation, [REDACTED], 6/3/22, four pages

Q Learning ability evaluation summary of [REDACTED], 6/3/22, three pages R 2022 parent transition statement, unidentified date, three pages

S Functional behavior assessment, Atlanta public schools, 9/20/18, two pages

T IEP, 1/25/22, 39 pages

U IEP, 9/13/21, 35 pages

V IEP, 8/25/21, 34 pages

W IEP, 8/11/20, 28 pages

X IEP, 12/18/19, 22 pages

Y IEP Atlanta public schools, 8/28/19, 6 pages

Z Prior written notice, 5/18/22, five pages

AA Parent concerns,1/23/22, two pages

BB Parent concerns, 12/17/21, nine pages

CC Parent concerns, 9/21/21, nine pages

DD Parent concerns, 8/23/21, ten pages

EE Parent concerns, 1/21/20, 11 pages

FF Letter email requesting an AT evaluation, 8/4/20, unspecified number of pages GG Letter regarding summary of 1/23/20 IEP, 1/23/20, four pages

HH Parent agenda through the 1/20/20 IEP meeting, 1/21/20, two pages

II Email attachment regarding one-to-one SETSS, 1/30/22, two pages

KK Promotion in doubt letter, 2/1/22, three pages

LL Affidavit of [REDACTED], unidentified date, 17 pages

MM Affidavit of [REDACTED], unidentified date, seven pages

DEPARTMENT OF

EDUCATION

1 SESIS events log, 5/4/23, 27 pages

2 Student's IEP from out of state, 8/28/18, pages 3 AT evaluation, 5/8/18, six pages

4 Social history evaluation, 11/1/19, six pages

5 Class observation, 12/3/19, two pages

6 IEP, 12/18/19, 33 pages

7 OT evaluation, 1/15/20, 20 21 nine pages

8 Behavior intervention plan, 1/23/20, five pages

9 Special education remote learning plan, 3/18/20, three pages

10 Parent's request for evaluation, 7/13/20, one page

11 Assistive technology evaluation, 8/5/20, 21 3 pages

12 Updated IEP, 8/11/20, 35 pages

13 Prior written notice, 6 8/15/20, four pages

14 Program adaptions document for remote learning, 9/18/20, four pages

15 Related services adaption for remote learning, 9/30/20, three pages

16 AT evaluation follow-up, 1/7/21, five pages

17 IEP, 6/1/21, 35 pages

18 Prior written notice, 8/26/21, five pages

19 School location letter, 21 8/26/21, two pages

20 Neuropsychological evaluation, 6/28/2 through 6/30/21, 21 pages

21 IEP, 1/25/22, 38 pages

22 Prior written notice, 21 3/1/22, five pages

23 Updated prior written notice, 5/18/22, four pages

24 Summer Rising accommodation plan, 7/3/22, one page