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CASE NUMBER: 578025 - NYC: 230217
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed.
Impartial Hearing Officer: Mercedes Cesaratto
Date of Filing: 08/26/2022
Hearing Requested by: Parent
Date of Hearing: 02/01/2023
Record Close Date: 05/02/2023
Date of Decision: 05/03/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
FEBRUARY 1, 2023
For the Department of Education:
[REDACTED], Esq., DOE Representative
For the Student:
[REDACTED], Esq., Parent Representative
[REDACTED], Parent Student
PROCEDURAL HISTORY
On August 26, 2022, a due process complaint (“DPC”) was filed against the New York City Department of Education (“DOE”) by [REDACTED], Esq., as attorney for [REDACTED] (“Parent”) and on behalf of [REDACTED] (“Student”), under Case No. 230217, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”) [20 U.S.C. § 1415(f)], and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1). (Ex. A). The Parent’s DPC alleged, among other things, the DOE failed to provide the Student a Free and Appropriate Public School Education (FAPE) for the 2022-2023 school year by failing to:
1. make decisions based upon the Student’s individual needs;
2. recommend sufficient 1:1 instruction;
3. recommend sufficient small group instruction;
4. recommend sufficient Assistive Technology;
5. complete a functional behavioral analysis (FBA) and a behavior intervention plan (BIP) despite Student’s maladaptive behaviors;
6. meaningful consider the recommendations contained in Student’s private evaluations;
7. place Student in a small classroom during Math instruction and instead, placed Student in an inappropriate placement, specifically, an ICT class. [1] Parent narrowed the relief requested in the DPC and is now requesting the committee on special education (“CSE”) to reconvene and recommend an appropriate program for the Student, with specific methodologies, such as Applied Behavior Analysis (ABA) and to defer the Student’s case to the Community Based Support Team (“CBST”) for the CBST to consider an appropriate program and placement for the Student in a NYS approved non-public school. [2]
On August 29, 2022, I was appointed impartial hearing officer (“IHO”) for this case. The parties indicated they believed the matter would be resolved and requested two status adjournments to allow time to settle the matter. Status conferences were held on November 14, 2022, and December 7, 2022. On December 28, 2022, a pre-hearing conference was held with representatives for the Parent and the DOE in attendance. At the pre-hearing conference, the parties agreed that settlement negotiations had failed and a hearing on the merits was scheduled. On February 1, 2023, a hearing on the merits was held. DOE did not present a case, place any documents in evidence, present any witness testimony, object to the Parent’s exhibits, or submit a closing brief. The Parent submitted documentary and testimonial evidence and presented two witnesses, the Parent and the Neuropsychologist. Both the DOE and the Parent’s attorney were provided with opportunities to submit closing briefs. The Parent submitted a closing brief, marked as an IHO exhibit and the DOE declined to submit a closing brief.
A list of the documentary evidence in this proceeding is appended to this Order.
BACKGROUND
I am familiar with the Student’s background as I presided over a prior hearing concerning this Student. 3 The Student is classified by the DOE’s Committee on Special Education (“CSE”) as a student with other health impairment. The Student has been diagnosed with Attention Deficit/Hyperactivity Disorder; General Anxiety Disorder; Specific Learning Disorder, with Impairment in Writing and Mathematics; Post-Traumatic Stress Disorder; and exhibits verbal tics. 4 The Student’s classification and entitlement to special education services is not in dispute. The Student has received special education services since pre-school. 5 During the 2021-2022 school year, the Student was homeschooled by the Parent. Prior to the start of the 2021-2022 school year, a Neurological evaluation of the Student was conducted by the Neuropsychologist.[6] The Parent shared the Neurological Evaluation Report dated July 19, 2021, with the DOE, prior to the start of the 2022-2023 school year. Prior to the start of the 2022-2023 school year, the Parent located a charter school, Inwood Academy, (“Charter School”) and enrolled the Student. 7 On August 3, 2022, the CSE convened and developed an IEP for the Student for the 2022-2023 school year. During that meeting, the CSE developed an IEP to be implemented on September [7], 2022, in which it recommended, among other things, the Student be placed in integrated co-teaching (ICT) classes for Math, ELA, Social Studies and Science; and receive Counseling individual services once a 3 Case # 226666 4 (Ex. P-B7; P-D2,3). 5 (P-D1) week for 40 minutes ; Counseling group service once a week for 40 minutes; and Occupational Therapy individual service once a week for 40 minutes. [8]
The Parent’s case consisted of Parent’s direct and affidavit testimony, testimony of the Neuropsychologist, and other documentary evidence. As stated above, the DOE did not present a case, submit any documentary evidence, present any witness testimony, object to Parent’s exhibits, or submit a closing brief.
LEGAL FRAMEWORK
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [9]. If a procedural violation is alleged, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’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 student, or (c) caused a deprivation of educational benefits [10].
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE [11], and default judgments are disfavored by the federal courts [12]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [13]. School districts are not required to “maximize” the potential of students with disabilities [14], but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement’” [15]. The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” [16].
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, which exception does not apply in this case 17as this is not a unilateral placement.
The DOE may be required to pay for educational services obtained for a student by the student’s parent/guardian, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parents’ claim [18].
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE [19]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA [20]. A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE
17 NYS Educ. Law § 4404(1)(c). deprivation (with the compensatory award being the specific services needed to correct those deficits).
FINDINGS OF FACT
Failure to provide FAPE
In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE.[21] In the instant case, the DOE did not provide the Student with a FAPE for the 2022-2023 school year [22]. The DOE did not present a case, present any witness testimony, or place any documents in evidence at the hearing. The DOE did not offer an opening or a closing statement/brief. The DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided the Student with a FAPE for the 2022-2023 school year. Furthermore, the DOE did not object to or contest the evidentiary material submitted by the Parent in support of the claims identified in the DPC. Therefore, the Parent is entitled to a presumption as to the truth of the asserted facts underlying the claims that are contained in the documentary evidence and testimony to the extent, they are credible and are not contradicted by the hearing record. Based on that presumption and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year.
Requested Relief
The relief requested by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2022-2023 school year. Specifically, the Parent, after revising the relief requested in the DPC, is now requesting that the IHO order the “CSE” to reconvene and recommend an appropriate program for the Student, with specific methodologies, such as Applied Behavior Analysis (ABA) and to defer the Student’s case to the Community Based Support Team (“CBST”) for the CBST to consider an appropriate program and placement for the Student in a NYS approved non-public school. [23]
The Neuropsychologist testified that he is familiar with the Student as he conducted the neuropsychological evaluation of the Student in 2021.[24] He further testified that he is a pediatric neuropsychologist with over 25 years of experience and has conducted a thousand evaluations.[25] The Neuropsychologist testified that as part of his profession he is very familiar with the New York City Department of Education special education programs. The Neuropsychologist described the Student as having “tremendous difficulties with emotional regulation, and a history of posttraumatic stress disorder, which is not typically given and very rare in children.”[26] He further emphasized the Student “required a lot of intervention, a lot of individualized or one-on-one or two-on-one instruction, not just with a paraprofessional, but a lot of support and therapeutic interventions.”[27] The Neuropsychologist opined that the IEP recommendation of an ICT placement for the Student was completely inappropriate, stating, “…there is no way that an ICT with any amount of supports would not only be not appropriate, but would, in my opinion then, would have absolutely led to further regression across all domain.”[28] The Neuropsychologist believes that deferring the Student to a CBST for referral to a NYS approved non-public school would be the best way to address the Student’s cognitive, emotional, behavioral, and educational levels which have not been met in the Student’s current ICT program.[29] On cross examination the Neuropsychologist explained that the counseling frequency of once a week individually and once a week group for 40 minutes each session, as recommended in the IEP were “completely deficient” to address the Student’s needs while he is in an ICT program.[30] He further stated the counseling recommendation in the Student’s current IEP would perhaps work in a therapeutic class, geared towards self-regulation, social and emotional need as a curriculum and as a school, but in an ICT setting, it is a “disaster”.[31] The Neuropsychologist testified the CSE team quoted his report extensively throughout the IEP noting that all the numbers were used from his report yet the CSE failed to implement his recommendations.[32] The Neuropsychological evaluation noted the following:
It is clear that [Student’s] emotional, social, learning and behavioral needs are significant and require a highly specialized, full-time, small special education class within a full-time special education school in order to make progress and prevent regression. There is absolutely no information we have seen or reviewed to indicate that he is ready for a Community school placement recommendation. Even with his current level of support he has needed outside help, including psychological and psychopharmacological interventions. It is with a reasonable degree of clinical certainty that a Community school placement, even in an ICT, 12:1 or 12:1:1, even with a paraprofessional and related services would not only not be appropriate, but would lead to regression. In consideration of the continuum of programs and placements through the DOE, it is clear that any Community placement would not work. Access to typical peers in a community school would only increase his anxiety and attention deficits, as well as decrease his self-esteem. [Student] is not ready. Therefore, a deferral to CBST is recommended and is critical for his progress in this very crucial social and academic period of time. This is the least restrictive and appropriate placement for this child. [33]
The Parent testified the Student has been unable to return to school since November 28, 2022 because the Student’s OCD tic behaviors were disruptive to the class resulting in bullying, teasing, and two separate physical assaults by a group of students. The Student was removed from class and placed in a separate room with a 1:1 teacher, for his safety and the safety of others. But despite this, the Student was again assaulted in November 2022 causing the Student to not leave his home and suffer from depression.[34] The Student’s IEP notes the Student, “has verbal tics when he becomes adrenally elevated and may exhibit a high amount of swearing.”[35] The Parent testified that the more anxious the Student gets the more the Student exhibits the dysregulation and increased ticking behavior.”[36] The Parent testified that there were no procedures put in place to address the Student’s dysregulation and behavior in such a large ICT class, and his anxiety led the Student to have “outburst, after outburst, after outburst” with the inability to focus. [37]
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”.[38] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[39] In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” 40
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”[41] Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.”[42] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[43] Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate.”[44] Compensatory education is a “replacement of educational services the child should have received in the first place”, and an 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.” [45]
In the instant case, the hearing record establishes that the DOE failed to provide the Student with a FAPE for the 2022-2023 school year. The record establishes that the DOE recommended placement and program in the Student’s IEP, specifically, integrated co-teaching (ICT) classes for Math, ELA, Social Studies and Science; Counseling individual services once a week for [40] minutes ; Counseling group service once a week for 40 minutes; and Occupational Therapy individual service once a week for 40 minutes, does not provide the Student with a FAPE.
As previously noted, the purpose of a compensatory education award is to “compensate for a past deficient program” [46], and it “must be designed to provide a student with the educational benefits that she would have received had the school district provided appropriate special education services in the first place.”[47] The hearing record thus establishes that the Student is entitled to an appropriate relief that can compensate the Student.
Accordingly, the CSE will be directed to immediately convene and develop an appropriate IEP for the Student and to consider deferring the Student to the CBST to recommend an appropriate nonpublic school program, including the two schools identified by the Student’s Psychiatrist and Neuropsychologist, that uses the ABA program and methodology throughout the day for the Student consistent with this decision. [48]
ORDER
IT IS HEREBY, ORDERED, that the CSE will be directed to immediately convene within 10 days of receiving this order and develop an appropriate IEP for the Student and to consider deferring the Student to the CBST to recommend an appropriate nonpublic school program that uses the ABA program and methodology throughout the day consistent with the findings and recommendations in this decision.
Dated: May 3, 2023
Mercedes Cesaratto
Mercedes Cesaratto
Impartial Hearing Officer
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. Due Process Complaint 8/26/2022 2 pages
B. Individualized Education Services Program (IESP)to be implemented 9/7/2022 8/3/2022 27 pages
C. Neuropsychological Evaluation 7/19/2021 14 pages
D. Affidavit of [REDACTED] E. 1/25/2023 3 pages
IHO EVIDENCE
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
Footnotes
[1] Parent’s exhibits will be referenced by the letter “P” followed by a letter, the hearing testimony shall be referenced by “Tr.” followed by a page number. There are no references to the District’s evidence as the District did not submit any evidence in this hearing. (P-A)
[2] (Tr. 62)
[6] (Ex. P-C)
[7] (Ex. P-D2)
[8] (Ex. P-B)
[9] Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[10] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[11] 20 U.S.C. § 1415[f][3][E][i].
[12] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[13] Rowley, 458 U.S. at 203.
[14] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.
[15] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[16] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[18] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[19] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[20] Newington Bd. of Educ., 546 F.3d at 123.
[21] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017).
[22] July 25, 2022, Tr. 19-20; August 2, 2022, Tr. 6.
[23] Tr. 62
[24] Tr. 66
[25] Tr. 65
[26] Tr. 66; 69
[27] Tr. 67
[28] Tr. 69
[29] Tr. 71.
[30] Tr.75
[31] Tr.75
[32] Tr. 77-79
[33] Ex. P-C8
[34] Ex. P-D2
[35] Ex. P-B8
[36] Tr. 90-91
[37] Id.
[38] See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16.
[39] Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16.
[40] Doe v. East Lyme, 790 F.3d at 454.
[41] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[42] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[43] Doe v. East Lyme, 790 F.3d at 454.
[44] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original).
[45] Reid, 401 F.3d at 518, 524.
[46] Reid, 401 F.3d at 522
[47] J.N. ex rel. M.N. v. Jefferson County Bd. of Educ., 12 F.4th 1355, 1367 [11th Cir. 2021].
[48] Tr. 89- Academics West and Robert Stevenson School