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CASE NUMBER: 231243
FINDINGS OF FACT AND DECISION
Case Number: 231243
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: (“Parent”) REDACTED
Request Date/Date Complaint Filed: 9/2/22
Date(s) of Hearing: 9/28/22, 10/6/22, 3/10/23, 4/5/23, 4/14/23, 4/21/23, 5/10/23, 5/17/23, 6/22/23
Actual Record Closed Date: 6/28/23
Date of Decision: 7/7/23
Hearing Officer: IHO, Barbara J. Caravello, Es q.
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 28, 2022
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 6, 2022
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 10, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 5, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 14, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 21, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 10, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 17, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 22, 2023
For the Student:
REDACTED
For the Department of Education:
REDACTED
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC" or “Impartial Hearing Report”) filed on or about September 2, 2022.
The DPC alleges in relevant part that the Department of Education (“DOE” or “District”) denied the Student a free and appropriate public education (“FAPE”) under the Individuals with Disabilities Education Act for the 2022-2023 school year.
Hearings on the merits of the due process complaint were scheduled on April 5, 2023, April 14, 2023, April 21, 2023, May 10, 2023, May 17, 2023, and June 22, 2023. Parents were represented by REDACTED, Esq., of REDACTED. The DOE was represented by REDACTED, Esq. of the Department of Education for the hearing on the merits.
Extensions were requested and granted, having been determined that there would be no harm to the Student in doing so.
THE DOE’S CASE, PRESENTED
The DOE concedes that no placement has been provided and that the Student has been denied a FAPE but denies that the Student is entitled to compensatory time. The DOE asserts that the Parent did not claim compensatory time as part of the due process complaint and the DOE was therefore not put on notice of the deficiency. The Parent should therefore be barred from this remedy, THE PARENT’S CASE, PRESENTED:
The Parent asserts that the Student was denied a free and appropriate public education (“FAPE”) due to a number of acts or omissions on the part of the DOE. The Parent points out that there is no evidence presented to support a claim that a placement was offered the Student for the 2022l-2023 school year.
Parent’s Exhibit C is a Prior Written Notice form that does not offer a placement to the Student. The Parent points to Exhibit D, a Nickerson letter which, the Parent suggests is further proof that the DOE failed to follow proper procedures proscribed by the Individuals with Disabilities Education Act and the New York State Education Law. Other issues that the Parent points to as FAPE denials have to do with a failure to implement services.
The Parent requests compensatory time for the time lost while the services that the Student was entitled to during pendency the period were not implemented and asserts that the FAPE denials taken together justify this compensation.
The Parent seeks deferral to the CBST, a finding as to the Student’s entitled services, and 1,050 hours of compensation for SETSS and related services of Physical Therapy.and Counseling in the amount of 44 hours each service. Speech-Language Therapy should, the Parent requests be compensated for 31 hours missed and Occupational Therapy compensated for 27 hours missed.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
ISSUES
ISSUE I:
Did the DOE provide the Student with a free and appropriate public education?
ISSUE II:
Is the Student entitled to compensatory time for services missed?
FINDINGS OF FACT
The Student is was REDACTED years old at the time of filing of the Due Process Complaint and is alleged to be classified as a student with Multiple Disabilities.
The Student has been receiving educational services since preschool. The Student has been diagnosed with autism and REDACTED, ADHD, REDACTED, REDACTED, REDACTED and both sleep and feeding disorders.
The Student attended a non-public special education program for preschool and attended the REDACTED, another non-public school program from the 2017-2018 through the 2021-2022 school years. There, she received Counseling Services, Occupational Therapy, Physical Therapy and Speech-Language Services. She also received support for feeding, behavior needs and daily living skills from a paraprofessional. The school did not have an ABA program, however, (Tr. pg. 215).
The Student no longer attends the REDACTED. The mother asked the school for additional help because the Student was coming home soiled after defecating on herself, (Tr. pg. 210). Soon after she was told that the Student could no longer attend the school, (Tr. pg. 230-231).
The IEP of June 8, 2022 recommended a special class with eight students, one teacher and one teaching assistant in a New York City specialized public school, sometimes known as a “District 75” school. This ratio differs from the class structure the Student is accustomed to which contains two classroom teachers and three paraprofessional support staff members. The Parent testified that the Student is prone to elopement from the classroom and has been aggressive with peers in the classroom setting. The Student needs individual help to remind and assist her with feeding and toileting. The June 2022 IEP terminated the paraprofessional assistance. At the June 2022 IEP meeting it was made known that the Student was reading on a Kindergarten level.
The DOE failed to provide the Parent with an appropriate school location to enroll the Student in a timely manner, (Ex A, Tr. pg. 235).
The Parent explored enrollment in two non-public schools. The REDACTED for Special Education was not an appropriate placement, (Tr. 232-234). The REDACTED was offered the Student but due to the mother’s difficult pregnancy among other issues, the placement could not be obtained, (Tr. pg. 234).
As a result of the denial of a free and appropriate public education, the Student missed much of the services that she was entitled to and must be compensated for this loss.
CONCLUSIONS OF LAW
Denial of FAPE:
The Individuals with Disabilities Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that Students with disabilities are afforded FAPE, See 20 U.S.C. § 1400 (d)(1)(A); Schaffer v. Weast, 546 US 49 (2005).
The IDEA was legislated to, “ensure that all children with disabilities have available to them, a free appropriate public education that emphasizes special education and related services designed to meet their unique needs,” Board of Education of Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). The hallmark of a FAPE is educational instruction that is designed to “meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction,” id. Each disabled student is entitled to an educational program that is reasonably calculated to enable the student to receive educational benefits, Endrew F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988, 995-96 (2017).
“The initial procedural inquiry is no mere formality,” Id, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much, if not all of what Congress wished in the way of substantive content in an IEP,” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful; i.e., more than mere trivial advancement, Walczak, supra.
In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that 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.” See Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak, supra.
In this instance, the DOE has conceded the denial of FAPE. Even had they not done so, FAPE denial has been proven. The Student attended school but due to unspecified reasons was unable to return to the school. There should have been no delay in finding the Student a program, which was not done.
The Parent does feel that the Student should be in a school setting and wants a referral to the CBST.
Two purposes of the IDEA, (20 U.S.C. §§1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them or further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400 [d][1][A]-[B]; see Forest Grove v. T.A.., 129 S.Ct. 2484 [2009]; Rowley, at 206-207).
A three-pronged test, generally known as the “Burlington-Carter” test, requires payment of tuition of a non-public school be made by the school district only if it is found that the FAPE was denied the student, the unilateral placement is appropriate and the equity of the case lies with the Parent, School Committee of Town of Burlington, Massachusetts v. Department of Education of Massachusetts, 471 U.S. 359, 370 (1985); Florence County School District v. Carter, 520 U.S. 7, 15 (1993).
Again, the denial of FAPE has not been argued by the DOE and is conceded. An appropriate placement must be found.
An appropriate program begins with an IEP which: 1) accurately reflects student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child’s special education; 3) establishes annual goals which are related to the child’s educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walczak v. Florida Union Free Sch. Dt., 142 F. 3d 119 (2d Cir. 1998), Appeal No 00-005. The DOE did not provide an appropriate IEP program. The Student was in a more restrictive program at the REDACTED than was offered by the June, 2022 IEP, (Tr. pg. 218). She was struggling in that program and the mother had health concerns because the school did not keep the Student clean, (Tr. pg. 210). The Parent did not wish for her child to be released from enrollment, but only meant to address the issue, Id.
The classroom size offered was not restrictive enough for this Student and the ratio of student to adults in the classroom recommended by the IEP set the Student up for failure. It was clear that the more restrictive environment of the REDACTED with five adults in a classroom of eight students was challenging enough for the Student. Her safety and those of her peers required a sufficient number of adults in the classroom to ensure that the Student did not elope, to protect her and her peers from her periodic aggression and to guide and redirect the Student toward appropriate tasks, designed to meet her academic, cognitive, behavioral and social needs.
A district is also required to locate, identify, and evaluate all children with disabilities who are enrolled by their parents in private schools located within the district, 34 CFR 300.131 (a). Once a district fails to develop an IEP that makes FAPE available, the proper private placement need only confer some educational benefit to the student, C.B. v. Special Sch. Dist. No. 1, 56 IDELR 187, (8th Cir. 2011); Warren G. v. Cumberland County Sch. Dist., 31 IDELR
27 (3d. Cir. 1999).
There has been no placement offered this Student that provides the proper classroom makeup in terms of student-to-staff ration or peer skill uniformity. As important is the lack of an adequate data-driven plan or provision within the Student’s IEP service recommendation. It is the understanding and belief of the undersigned that such a methodology is not part of the curriculum of the District schools within the City of New York. This blanket policy however, cannot be utilized to prevent this very necessary service from being delivered to a Student to whom it is essential.
It is the responsibility of the DOE to provide the Student with the services and/or placement that will bring the student to a level of learning that is not only sufficient to confer some educational benefit upon the ‘handicapped’ child, Rowley, supra, but emphasizes “special education and related services designed to meet the Student’s unique needs and prepare him for further education, employment and independent living as well as ensure that the rights of students with disabilities and parents of such students are protected”, (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S.Ct. 2484, 2491 [2009]; Rowley, at 206-07. In this matter, the DOE did not provide a program that would meet the Student’s needs or even implement its own recommendations.
It has been held that where the District failed to provide entitled services, which are then engaged by the Parent, such services must be funded by the District at whatever rate is necessary, In re: Student with a Disability, NYS Educational Agency, 169545, (7/23/2018), finding any standard set for “enhanced rates” irrelevant. For reasons stated herein, I find that the Parent was cooperative with the District and has met all requirements for a finding that equity demands the tuition and/or funding of the tuition be the responsibility of the DOE.
Compensatory Education:
Compensatory education is defined as educational services above and beyond that normally due to a student under his state’s education law. The purpose is to place the student in the position that the student would be in had the district provided the appropriate services in the first place, Reid v. Dist. Of Columbia, 43 IEDLR 32 (D.C. Cir. 2005).
Compensatory education may be awarded to a student who remains eligible for special education services if he or she was denied a FAPE. 20 U.S.C.§§ 1401(3)l 1412(a)(1)(B); P v. Newington, 546 F.3d 111, 123 (2d Cir. 2008), (stating that the “IDEA allows a hearing officer to fashion an appropriate remedy” and that “compensatory education is an available option under the Act to make up for a denial of a FAPE”), Student v. New York City Dep’t Of Educ., 2008 WL 4890440, at *23 (E.D.N.Y., 1/30/2008); Streck v. Board of Educ. of the East Greenbush Central School Dist., 408 Fed Appx 411 (2d Cir. 2010); Application of a Student with a Disability, Appeal No. 17-015. The Parent need not establish a “gross violation” of the IDEA to be awarded compensatory relief. I believe, however, that if the DOE’s ignores an obvious benefit derived from the absent services and application of illegal blanket policies does rise to the level of a gross violation, id.
The IHO has broad authority in crafting an appropriate equitable remedy, Burlington v. Dep’t of Educ., 471 U.S. 359, 369 (1985), (recognizing that the IDEA “confers broad discretion on the court” in granting appropriate relief, 20 U.S.C. 1415 (i) (2)(C) (iii).
In fashioning compensatory relief, “the inquiry must be fact-specific and the award must be “reasonably calculated to provide the educational benefits that likely would have accrued from special education services that the school district should have supplied in the first place,” Reid v. Dist. of Columbia, 401 F. 3d 516, 524 (D.C. Cir. 2005).
Here, due to a denial of FAPE, the Student has missed a good deal of her services and deserves to be compensated. The services for physical therapy and counseling were not provided during the school year. These amount to 44 hours missed for each service.
From the beginning of the school year the Student missed 27 hours of occupational therapy. The Student missed 31 hours of speech-language therapy from July 1, 2022 and January 1 of 2023, according to the Parent’s testimony. The Student will be awarded the time she missed.
The Committee on Special Education (“CSE”) must convene to develop an appropriate IEP which meets the Student’s needs and the placement will be referred to the Central Based Support Team for placement in an appropriate state-approved non-public school.
Because the Student has missed out on 210 days of instruction for 5 hours each day totaling 1,050 hours of one-to-one instruction. The DOE did provide some instruction in the home but the Student was unable to focus on a screen for long periods of time as she was expected to do. The instruction will take place at home or at an agency providing this service, at the Parent’s discretion. All service providers shall be of the Parent’s choice.
The Student is also entitled to receive special education transportation with a transportation paraprofessional trained to work with special education students for transportation to and from school enrollment.
ANALYSIS
The failure of the DOE to provide the Student with a FAPE for the 2022-2023 school year entitles the Parent to find a school program that is reasonably calculated to enable the student to receive educational benefits. The IEP was not sufficient to address the needs of the Student.
The denial of FAPE led to the Student’s lack of consistent services. These will be compensated.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered and declared that:
1. The DOE failed to provide a free and appropriate public education to the Student for the 2022-2023 school year;
2. The District is hereby directed for forthwith re-convene and develop a current IESP for the Student and conduct evaluations in all of the Student’s suspected areas of disability, if it has not already done so for the current school year.;
3. The NYC DOE shall recommend the Student’s placement to be referred to the Central Based Support Team for placement in an appropriate state-approved non-public school;
4. A bank of compensatory hours shall be funded by the DOE with service providers of the Parent’s choice, the hours to be used at the Parent’s discretion, without an expiration date as follows:
• Home or center instruction through REDACTED or any similar service, chosen at the Parent’s discretion, 1,050 hours • Physical Therapy, 44 hours, • Counseling Services, 44 hours • Occupational Therapy, 27 hours • Speech-language Therapy, 31 hours; 5. All services shall be at market rate; 6. The DOE shall fund special education transportation with a transportation paraprofessional trained for this purpose;
7. All funded or reimbursed amounts shall be paid within 30 days of receipt of any contracts or invoices required by the District’s Implementation Unit in the usual course of business;
8. All services are to be provided over a twelve-month school year period;
9. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders; SO ORDERED:
Dated: July 7, 2023
Barbara J. Caravello, Impartial Hearing Officer
APPEAL RIGHTS
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.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
P-A. Exhibit Document Date # of Pages Impartial Hearing Request 9/2/22 3 pages
P-B. IEP 6/8/22 31 pages
P-C. Prior Written Notice 7/1/22 3 pages
P-D. Nickerson Letter 9/23/22 7 pages
P-E. Special Education Standard Operating Procedures Manual 11/16/21 1 page
P-F. Email correspondence 10/20/22 1 page
P-G. Email correspondence 11/22/22-11/23/22 2 pages
P-H. IEP 3/24/21 26 pages
P-I. REDACTED Report Summer 2021 9 pages
P-J. Report Card 2/4/22 20 pages
P-K. Report Card 6/17/22 22 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.