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CASE NUMBER: 577657 - NYC: 229933
Cover Sheet
Case Number: 229933
Student’s Name: Student
Date of Birth: Birthdate
District: School District
Hearing Requested By: Parent
Date of Hearings: September 26, 2022; October 24, 2022; November 2, 2022
Actual Record Close Date: November 15, 2022
Hearing Officer: Virginia Tillyard
FINDINGS OF FACT AND DECISION
BACKGROUND AND POSITION OF THE PARTIES
Parent, through counsel, filed a due process complaint (the “DPC”, Ex. A) under the Individuals with Disabilities Education Act (20 U.S.C. section 1415(f), the “IDEA”), Section 4404(1) of the New York State Education Law, and Section 504 of the Rehabilitation Act of 1973, against the New York City Department of Education (the “DOE”) on April 2, 2021 (Ex. A), alleging that the DOE denied Student a free appropriate public education (“FAPE”) from September 2020 through March 2021. Parent alleges that the CSE inappropriately declassified Student at a CSE meeting on May 4, 2020 (the “2020 CSE Meeting”) and that she did not receive the special education services that she needed from September 2020 through March 2021. Ex. A. As a remedy, Parent requests 400 hours of compensatory tutoring at an enhanced rate of $150 per hour. As discussed below, I find in favor of the Parent.
JURISDICTION
The IDEA and its implementing regulations and the New York State Education Law and its implementing regulations provide jurisdiction for this decision.[1]
PROCEDURAL HISTORY
I was appointed as Impartial Hearing Officer on August 23, 2022. At hearing, both parties submitted exhibit packets. All exhibits were admitted. The DOE presented the live testimony of the Public School Witness and the District Representative. Parents presented the live testimony of the Student’s mother and the affidavit testimony of the Tutoring Witness (who appeared for cross examination).[2] Both parties made opening and closing statements on the record.
FINDINGS OF FACT AND DECISION
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)); 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998). Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all issues.
Applicable Law
Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE, 8 NYCRR § 200.5(j)(4)(i). The purpose of the IDEA is to ensure that children with disabilities receive a FAPE.[3] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”).[4] To qualify as a child with a disability, a student must meet one of thirteen disability classifications, and need special education and related services as a result.[5]
A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.[6]
Declassification – substantive appropriateness
Declassification may be substantively inappropriate because the student continues to need special education to address a particular disability. Therefore, if a student continues to meet criteria for a specific disability category and continues to need special education and related services by reason of that disability, declassification is a violation of the right to a FAPE.
Declassification – procedural requirements
Where a school district has previously classified a student as one "with a disability," it must evaluate that student prior to declassifying him or her as such. 8 NYCRR § 200.4(c)(3). Consistent with federal and state regulations, the CSE, consisting of a group of qualified professionals and the child's parent(s), must review existing evaluation data on the child, including information provided by the parents, and current classroom-based assessments and observations from teachers and other related service providers. See 20 U.S.C. § 1414(c)(1)(A); 8 NYCRR §§ 200.4(b)(5)(i), 200.4(b)(5)(ii); 200.4(b)(4). The CSE must include at least one teacher or other specialist with knowledge in the area of the student's disability. See 8 NYCRR § 200.4(b)(4). The CSE must determine what evaluative data, if any, is required to conduct such a reevaluation, but it must be "sufficient to determine the student's individual needs, educational progress and achievement, the student's ability to participate in instructional programs in regular education and the student's continuing eligibility for special education." See 8 NYCRR §§ 200.2(b)(8); 200.4(b)(4); 200.4(b)(5).
If the CSE determines that no additional data is needed to determine whether the child continues to be a student "with a disability," it shall notify the child's parents of that determination and the reasons underlying it, and also must inform the parents of their right to request an assessment. The school district is not required to conduct the assessment unless requested to do so by the student's parents. S See 20 U.S.C.§ 1414(c)(4)(A); 8 NYCRR §§ 200.4(b)(5)(iv); 200.5(a)(5)(i).
As with any procedural violation, a failure to evaluate (or re-evaluate) does not necessarily mean that a student was denied a FAPE. See, e.g., C.R. v. New York City Dep't of Educ., 211 F. Supp. 3d 583, 609 (S.D.N.Y. 2016) (holding that the CSE had sufficient and accurate information to understand and describe the student's levels of performance and needs, even without the participation of one of his teachers, because the CSE had two recent classroom observations and input from his parent and teacher). In other cases, procedural violations in connection with declassification may amount to a FAPE denial. See, e.g. Application of a Student with a Disability, Appeal No. 15-099.
The Student
Student is currently placed at REDACTED, a public school in the Bronx, New York. She started attending kindergarten at REDACTED in September, 2020. For the 2019-20 school year she was placed at REDACTED (“Preschool”), a public preschool in Bronx, New York, where she was classified as a preschool student with a disability and placed in an integrated co-teaching (“ICT”) class and received occupational therapy (“OT”) and physical therapy (“PT”). Exs. 6 and 7. Student also received speech language therapy at the Preschool, but that was discontinued more than a year before the 2020 CSE Meeting.[7] As part of the turning five process, the CSE met on May 5, 2020 (“2020 CSE Meeting”) and determined that Student no longer met the eligibility criteria for an educational disability, and that she no longer required special education services. Ex. 3.
2020 CSE Meeting
On April 29, 2020 Parent, through Parent’s Attorney requested postponement of the 2020 CSE Meeting so that Parent’s Attorney could get up to speed. She also asked the CSE to reinstate Student’s SLT, and requested a new speech evaluation if that were necessary for SLT to be reinstated.[8] The CSE did not postpone the meeting, conduct a new SLT evaluation, or reinstate SLT.[9] Present at the 2020 CSE Meeting were the Parent, the District Representative (serving as district representative and school psychologist), the Special Education Teacher (who was Student’s preschool class teacher for the 2019-20 school year),[10] a social worker and Parent’s Attorney.[11] At the 2020 CSE Meeting, the CSE considered a social history update dated January 27, 2020, a psychological evaluation report dated January 24, 2020, an occupational therapy report from the Preschool dated January 15, 2020, a physical therapy report from the Preschool dated December 18, 2019, a teacher report from the Preschool dated January 17, 2020 and Student’s CPSE individualized education program.[12] The psychological evaluation noted “notable difficulties” with expressive and receptive language, and said that these difficulties may have affected her performance on verbal tasks and to understand oral instructions. Ex. 5-2. It also noted that the Preschool teachers believed Student needed to remain in an ICT class for kindergarten, and recommended that recommendations would be made at the 2020 CSE Meeting “to develop an education plan that will meet [Student’s] needs”. Ex. 5-3. The physical therapy report reported “minimal progress” in Student’s gross motor skills, and recommended continued PT 2X30 per week. The occupational therapy report recommended discontinuation of OT.[13] In the teacher report, the Special Education Teacher noted that Student had a tendency to hit other students, “needs to use her words more”, and was functioning below age appropriate levels in four domains.[14] At hearing, the District Representative (who was present at the meeting, and also served as school psychologist at the meeting) testified that she was not aware of the report that said student was functioning below age appropriate levels in four domains, or of the report that said Student continued to need PT, or of any report of Student’s notable difficulties with expressive and receptive language.[15] The District Representative said that the teacher report in connection with the 2020 CSE Meeting said that Student was performing on grade level.[16] The Parent objected to the Special Education Teacher’s input at the 2020 CSE Meeting and disputed the validity of what he was saying, and the meeting became confrontational.[17] The Parent disagreed with the declassification recommendation, and requested an ICT class with related services of PT, SLT, counseling and a 1:1 paraprofessional. Parent and Parent’s Attorney expressed concern about Student’s previous declassification from speech services. The CSE told the Parent that if she wanted to address speech concerns and reinstate services she should request a new speech language evaluation. The CSE determined that Student no longer met eligibility criteria for an educational disability and proposed to declassify Student with respect to the 2020-21 school year[18] The recommendations upon declassification included declassification support services of counseling.[19] However, Student continued to attend the Preschool in the summer of 2020, and continued to receive PT and counseling, pursuant to changes to Student’s CPSE IEP.[20]
Student started to attend kindergarten at the Public School in September 2020. Parent took Student to REDACTED in September 2020, and obtained a private speech-language evaluation (“Private Evaluation”) from REDACTED, MA, CCC-SLP on September 17, 2020. The Private Evaluation diagnosed Student with mixed receptive-expressive language impairment and speech sound disorder. It recommended SLT.[21] Parent shared this report with the CSE, requested that the CSE reconvene, and re-evalute Student.[22]
Student was on remote learning during the fall of 2020. Parent hired a private tutor to help with her educational difficulties because she was extremely worried, particularly because Student was extremely behind in reading. [23] In November 2020 (the first marking period of the first term), Student’s reading and writing levels were rated as “N” for “needs improvement” in a total of four out of four rated areas. In March 2020, Student’s reading level was still rated “needs improvement” in two out of four areas. By December, Student was rated as “proficient” in all areas.[24] Parent believes the private tutoring could account for Student’s improvements in literacy later in 2020.[25]
The CSE performed a cognitive and academic functioning skills assessment on February 21, 2021 (Ex. J) and a classroom observation on February 8, 2021 (Ex. K). She received a “below peers” rating in several areas of speech and language, including decoding, reading comprehension, and oral reading fluency. Ex. J. An IEP review meeting was held on February 25, 2021. Student was classified as as student with a speech or language impairment in an IEP dated March 8, 2021.[26] There is no complete copy of that IEP in the record. On March 9, 2021 the CSE sent Parent a prior written notice of eligibility for classification as a student with a speech or language impairment (Ex. L). The notice recommended placement in an ICT class in a DOE community school, with related services of individual and group SLT. Parent gave consent to services and the CSE generated a program adaptions document on April 23, 2021, implementing the recommendations, with 1X 30 SLT, 1:1 and 2X30 SLT, group of three. Ex. N.
The Tutoring Witness assessed Student’s academic strengths and weaknesses on February 16, 2022 and recommended 400 hours of structured multi-sensory instruction, using an Orton-Gillingham approach, to build written language, mathematics and reading comprehension skills. Ex. R. She reviewed Student’s records, and assessed Student at low first grade level for decoding, spelling, and mathematics, and at kindergarten level for reading comprehension and writing. Student was six years eight months old at that time. Thus, she was below the expected levels for her grade in all those areas. The Tutoring Witness recommended the 400 hours of 1:1 multisensory instruction in reading and spelling. Ex. S. She noted at hearing that Student is below grade level but has the potential to achieve grade level.[27]
Based on the above, I find that any procedural violations in connection with the 2020 CSE Meeting do not amount to a FAPE denial. The CSE had adequate, up to date materials upon which to base its decision. Also, although the CSE did not accede to Parent’s request to postpone the meeting to allow for a speech language evalation, and did not not accede to Parent’s requests at the meeting, Parent was meaningfully involved in the decisionmaking process.
However, the CSE’s recommendation to declassify Student was a substantive violation of the IDEA. The DOE argued at hearing that the CSE’s decision to declassify Student was not a denial of FAPE because (1) Student did not meet criteria to be identified as a student with a disability, and (2) the DOE has no obligation to maximize a student’s potential. While it is correct that the DOE is not required to maximize a student’s potential, it is clear that Student still met eligibility criteria at the time of declassification. The record shows that at the 2020 CSE Meeting, the CSE had adequate evidence of Student’s speech-language deficiencies and need for special education and related services in the form of Student’s preschool reports, Parent’s correspondence, and Parent and Parent Attorney’s input at the meeting. The DOE was therefore legally required to provide Student with a FAPE. Therefore, the CSE should have offered an IEP and made service recommendations, including speech language therapy, instead of declassifying her.
The record also shows that the CSE ignored parent’s request for a speech evaluation in April 2020, and ignored all Parent’s continuing requests for an evaluation and for speech-language interventions from the date of the 2020 CSE Meeting until February 2021. This further confirms continuing denial of a FAPE. I therefore find that the CSE denied Student a FAPE between September 2020 until the CSE reclassified Student in March 2021. Student is still young and at the stage where literacy must be built in order to be ready for future learning. Based on the Tutoring Witness’s affidavit and testimony, I find that 400 hours of hours of 1:1 tutoring, as proposed by the Tutoring Witness, is an appropriate remedy for the lack of appropriate services during the year at issue.
EQUITIES
Reasonableness of the requested rate The DOE challenged the requested rate of $150 per hour for tutoring. The Tutoring Witness was appropriately qualified and experienced to perform the her assessment. Ex. S. The Tutoring Agency can provide those services at $150 per hour. This is at or below the rate charged by other similar providers, some of whom charge $200 per hour or more.[28] The Tutoring Agency’s services cover all academic areas, as well as study skills and executive functioning skills. The $150 hourly rate includes materials and manipulatives, technology when needed, supervision, and communications with the parents. Of the total, the tutor receives around $50-75 per hour. Hearing Transcript. The DOE did not, however, provide its own evidence regarding what a reasonable rate should be. Based on the record, I find no evidence to show that the requested rate of $150 per hour is unreasonable.
Other equitable considerations The DOE’s continued delays in re-evaluating Student despite numerous requests from Parent weigh against it. Further, Parent obtained tutoring and a private evaluation at her own expense in order to help get Student’s needs met. This weighs in favor of the Parent. I am therefore ordering the 400 hours of 1:1 tutoring that Parent requests. I am ordering that the award be used within two years of the date of this decision. Student will be due a triennial re-evaluation by then, so there should be an updated basis for any necessary future special education services.
No additional issues were raised at the hearing. I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding.
ORDERS
IT IS HEREBY ORDERED that the New York City Department of Education is directed to fund a bank consisting of 400 hours of 1:1 tutoring from REDACTED at a rate of $150 per hour. The hours shall expire two years from the date of this decision, but may be used at any time until then; and it is further
ORDERED that the New York City Department of Education’s Impartial Hearing Implementation Unit shall issue payment directly to REDACTED within 15 days of receipt of an invoice and proof of services rendered.
November 15, 2022
________________________________
Virginia Tillyard, Impartial Hearing Officer
PLEASE TAKE NOTICE that pursuant to PART 279 of the Regulations of the Commissioner on Education (“Practice on Review of Hearings for Students with Disabilities”):
Appeals from an impartial hearing officer's ruling, decision or refusal to decide an issue prior to or during a hearing shall not be permitted, with the exception of a pendency determination made pursuant to subdivision 4 of section 4404 of the Education Law. However, in an appeal to the State Review Officer from a final determination of an impartial hearing officer, a party may seek review of any interim ruling, decision or refusal to decide an issue. Section 279(10)(d).
EXHIBIT LIST
DOE EXHIBITS
Exhibit No.
Date
Description
Number of Pages
1
4/20/2022
DPC 3 2 5/04/2020
Declassification recommendation & attendance page 2 3 5/04/2020
Prior written notice
4
4
1/22/2020
Social history update
3
5
1/23/2020
Psychological evaluation
3
6
2/26/2018
CPSE evaluations
29
7
1/17/2020
CPSE reports
7
8
5/04/2020
SESIS Events log
1
9
June 2021
Report Card 2020-2021 School Year
3
10
June 2022
Report Card 2021-2022 school year
2
PARENT EXHIBITS
EXHIBIT
DESCRIPTION OF DOCUMENT AND DATE
NUMBER
OF PAGES
A REDACTED DPC 8-20-22 3
B Educational Update REDACTED pre-school 01-17-20 11
C Psychological Evaluation Report 01-23-20 3
D Speech-language therapy request email 4-30-20 2
E Emails REDACTED to REDACTED CSE 5-5-20 an 6-22-20 3
F IEP and related docs 06-24-20 17
G Speech-Language evaluation REDACTED, REDACTED MA 9-17-20 14
H Request by REDACTED for re-evaluation 12-21-20 1
I Report card 1, Term 1 2020-21 2
J Assessment by REDACTED DOE School Psychologist 02-21-21 5
K Classroom Observation FOR REDACTED 2-8-21 1
L Prior Notice Package for REDACTED 3-9-21 12
M Consent for Services 3-9-21 1
N Program Adaptations Document for REDACTED 04-23-21 4
O Letter REDACTED, MD, REDACTED re evals 5-6-21 1
P IEP partial 3-21 to 2-22 7
Q Email from REDACTED re missing 3-21 to 2-22 IEP not in SESIS 9-28-22 1
R
Letter from Dr. REDACTED re assessment 2-18-22
1
S
Affidavit from Dr. REDACTED 9-29-22
3
IHO EXHIBITS
None
Footnotes
[1] Since all the relief that Parent is requesting is available under the IDEA, I do not need to analyze any claims under Section 504.
[2] Ex. S.
[3] U.S.C. § 1400 (d)(1)(A).
[4] U.S.C. § 1401 (9); 34 C.F.R. § 300.13.
[5] U.S.C. § 1401 (3); 8 NYCRR §§ 200.1(zz); 34 CFR 300.8[a][1].
[6] U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits.
[7] Parent testimony, hearing transcript; Ex. 8
[8] Ex. D.
[9] Testimony of Parent, Hearing Transcript; Exs. 2 and 3.
[10] Hearing Transcript
[11] Ex. 2.
[12] See Exs. 3, 4, 5, 7, B and C. The “Teacher Report” referred to in Ex. 3 appears to correspond to the first document in Exs. 7 and B. Student’s preschool IEP is not in evidence.
[13] Ex. 7.
[14] Ex. 7-1 and 7-2.
[15] Testimony of the District Representative.
[16] Id.
[17] Testimony of the District Representative; Parent testimony, Hearing Transcript.
[18] Exs. 2 and 3.
[19] Ex. 2.
[20] Parent testimony, Hearing Transcript; Ex. F.
[21] Ex. G.
[22] Ex. H; Hearing Transcript.
[23] Parent testimony, Hearing Transcript.
[24] Ex. 9-1. “NL” means there was not enough information for a grade to be assigned. Testimony of the Public School Witness, Hearing Transcript.
[25] Hearing Transcript.
[26] Ex. P.
[27] Testimony of Tutoring Witness, Hearing Transcript.
[28] Testimony of Tutoring Witness, Hearing Transcript.