New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 582088 - NYC: 233906

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 233906

Student’s Name: [Redacted] (referred to as “Student”)

Date of Birth: [Redacted]

District: [Redacted]

Hearing Request by: [Redacted] (referred to as “Parent”)

Date of Complaint: September 6, 2022

Hearing Dates: February 15, 2023

Actual Record Close Date: March 6, 2023

Decision Date: March 20, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

For the Department of Education:

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about September 6, 2022, regarding the 2020/21, 2021/22 and 2022/23 school years (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate program and placement for the 2020/21, 2021/22 and 2022/23 school years (P-Ex. A). The Parent requested compensatory services for academic tutoring, speech language therapy and occupational therapy; home instruction; and independent evaluations (IEEs) (P-Ex. A).

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on September 29, 2022. A prehearing conference was held on October 17, 2022, to discuss the issues in the case. A CSE meeting was held and a new placement was recommended for the Student, which the Parent accepted as of November 14, 2022. A hearing was scheduled for February 15, 2023, and concluded in one day (See, Transcripts).^[2] The District did not present a case. The Parent presented exhibits^[3] and two witnesses by affidavit. At the hearing, the Parent withdrew the request for IEEs and home instruction (T. 55). The record closed on March 6, 2020. There were approximately four extensions of the compliance timelines granted by this Hearing Officer, to allow for the District to investigate the matter, for the parties to try and resolve some of the issues in the DPC, and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old, 5th grade student for the 2022/23 school year (P-Ex. A; I). The Student is diagnosed with Autism (P-Ex. A). The Student has had an IEP since preschool and has attended the District’s public schools since then (P-Ex. I-2). The Parent testified by affidavit that the Student had been in a 6:1:1 classroom, but he was worried that the Student was not making progress (P-Ex. I-2). According to the Parent, the Student speaks clearly but is sensitive to loud noises and does not always understand what she is told (P-Ex. I-2). She needs time to process spoken language and needs a quiet learning environment (P-Ex. I-2). She enjoys interacting with her peers but does not always stay attentive to conversations or engage in back and forth conversations (P-Ex. I-2). She also struggles to stay attentive during instruction and needs prompts, especially when the subject matter is new or confusing (P-Ex. I-2). The Student is still several years below grade level in reading, writing and math, but with one to one support, she has made a lot of improvement (P-Ex. I-2). She is a hard worker and responds very well to positive encouragement (P-Ex. I-2). The Student struggles more with math than with other subjects, but tries her best and stays engaged particularly when she is provided with hands on learning activities and visual aids (P-Ex. I-3).

During the COVID-19 pandemic, for the entirety of the 2020/21 school year, the Student was enrolled in a remote learning program (P-Ex. I-3). The Parent was home with the Student helping her log on to her remote sessions every day, and observing the instruction that she was being offered (P-Ex. I-3). It became clear to the Parent that the programming was not appropriate and it was clear that the people who worked with the Student were not familiar with her strengths, her weaknesses or her learning needs (P-Ex. I-3). There was very little interaction between the teacher and the students, other than reprimands when students were not adhering to the prescribed rules or being attentive (P-Ex. I-3). On several occasions, the teacher called out the Student to reprimand her for not paying attention, which put her on the spot and caused her a great deal of anxiety (P-Ex. I-3). The online lessons were far below the Student’s ability level and she was not being challenged to meet her potential or learning (P-Ex. I-3). According to the Parent, remote instruction was only offered for approximately 30 minutes per day throughout the 2020/21 school year and she was not provided the speech or occupational therapy services recommended in the IEP (P-Ex. I-3).

The District convened for an IEP meeting in June 2021 (P-Ex. C; I-3). The CSE reviewed the Student’s testing and found that she had made progress (P-Ex. I-4). The CSE recommended a decrease in OT and Speech therapy services (P-Ex. I-4). The Parent attributed the Student’s progress to the work he did with her at home for hours each day to make sure that she was learning (P-Ex. I-4). The Parent informed the CSE about his concerns regarding the remote programming (P-Ex. I-4). The CSE made the same 6:1:1 classroom recommendation, however the parent disagreed with the recommendation (P-Ex. I-4).

At the start of the 2021/22 school year, the Parent was still too worried about COVID to send the Student back to school since the Student had already been ill with COVID (P-Ex. I-4). The Parent knew that remote instruction was not appropriate and instead applied for home instruction which was approved on October 6, 2021 (P-Ex. I-4). For the first few months of the 2021/22 school year, the Student continued to receive the same remote learning that she had been offered the previous school year (P-Ex. I-4). The Student was only approved for one hour of instruction per day, and she still did not receive any OT services and only received about one month of Speech in July 2021 (P-Ex. I-4; T. 77). During home instruction the Student was engaged and making progress and it was the first time the Parent saw that the Student was capable of much more (P-Ex. I-5). Although she was making progress during the one hour of instruction, it was not enough time to cover all subjects adequately (P-Ex. I-5). The Student was still several years below grade level (P-Ex. I-5).

The Special Education Teacher who provided the Student with home instruction testified by affidavit that he began working with the Student on October 6, 2021 (P-Ex. H). The Special Education Teacher (“Teacher”) testified that the Student did not present with any interfering or maladaptive behaviors but did struggle to remain focused and needed frequent prompting (P-Ex. H-2). The Student could follow routine directions, but needed assistance with novel, multi-step directions, and needed a lot of repetition in order to both acquire and then maintain new skills (P-Ex. H-2). The Student has significant cognitive weaknesses but is motivated, a hard worker, and when engaged in learning, she is quite capable of steady academic progress (P-Ex. H-2). The Student needed the most support in the areas of reading comprehension and applied problems in math (P-Ex. H-2).

The Teacher was only able to offer the Student one hour per day of home instruction as per the District’s mandate; and during the one hour per day he worked with her on English Language Arts, math, social studies and science (P-Ex. H-2). He worked on the goals from the June 2021 IEP, and the Student was able to meet most of her goals, excluding math (P-Ex. H-2). The Teacher felt that her goals were not rigorous enough for her given her capabilities (P-Ex. H-2). As of June 2022, when the teacher last worked with the Student, she was reading at a third grade level and her math skills remained at a second grade level (P-Ex. H-3). It was apparent that the Student had significant skill gaps in her learning and needed a significant amount of remediation in reading comprehension and math (P-Ex. H-3). Due to the Student’s attentional challenges and her need for repetition, the Teacher was not able to cover much in the one hour per day and testified that the Student needed additional instructional time to make more progress and potentially reach grade level (P-Ex. H-3).

The Teacher testified that the District’s office of home instruction routinely offers one hour per day of instruction to students under the age of 12, as a matter of policy, and the recommendation (one hour per day) is not based on an individual students’ special needs (P-Ex. H-3; T. 70-71). One hour per day was inadequate for the Student based on her level of need (P-Ex. H-3). The Teacher testified that the Student required a minimum of three hours per day of 1:1 instruction (P-Ex. H-3).

The Parent testified that as of November 14, 2022, the Student has been enrolled in one of the District’s public schools and the Parent has testified that the Student is doing well in that public placement (P-Ex. I-1).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is 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). A “free appropriate public education consists of 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.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). 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 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 v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

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 for 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 generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 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, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, 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 Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as 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 “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that 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), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Here, the District failed to present a case and therefore failed to meet its burden in demonstrating that FAPE was provided to the Student for the 2020/21, 2021/22 and 2022/23 school years. The District failed to provide any evidence regarding how the recommendations in the IEPs supported the Student’s needs; how the remote instruction satisfied the recommendations in the IEP; how one hour of home instruction satisfied the recommendations in the IEP; and why related services have not been provided. There was also no testimony from the District to explain why the related services were reduced for the 2021/22 school year, when the services were never provided. Therefore, I find that the District did not provide the Student with FAPE for the 2020/21, 2021/22, and 2022/23 school years. Compensatory Services

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages 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”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, 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. See, Newington, supra.

Here, based on the facts above, I find that the Student is entitled to compensatory services to attempt to place the Student in the position she should have been in, if she had received the supports required by the Student as indicated in the June 2020 IEP, and based on the denial of FAPE for the last three school years.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2020/21, 2021/22, and 2022/23 school years. I further find that the Student is entitled to compensatory services to make up for the District’s denial of FAPE. Based on the lack of evidence presented by the District regarding the reduction in related services, I am awarding a bank of hours based on the original recommendation from the June 2020 IEP. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

ORDER THAT, the District shall provide the Student with a bank of 986 hours^[4] of academic tutoring, which shall not expire, to be provided by a certified/licensed provider of the Parent’s choosing, at a rate not to exceed $125.00 per hour; ORDER THAT, the District shall provide the Student with a bank of 986 hours^[5] of Speech Language Therapy, which shall not expire, to be provided by a certified/licensed provider of the Parent’s choosing, at an enhanced rate; ORDER THAT, the District shall provide the Student with a bank of 739 hours^[6] of Occupational Therapy, which shall not expire, to be provided by a certified/licensed provider of the Parent’s choosing, at an enhanced rate.

SO ORDERED

DATED: March 20, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, Impartial Hearing Officer

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.

EXHIBITS

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. Impartial Hearing Request 9/6/22 11pp. Individualized Education B 6/3/20 27pp. Program Individualized Education C 6/2/21 26pp. Program

D. Psychoeducational Evaluation 6/18/22 9pp. E Home Instruction Authorization 2021-2022 1p. Home Instruction Progress F 6/27/22 1p. Report Home Instruction Progress G July 2022 2pp. Report

H. Provider Affidavit 2/2/23 4pp.

PARENT

I. Affidavit 2/6/23 6pp

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.

[4] Calculated at 2 hours of instruction per day, for a 12-month school year, for the 20/21 and 21/22 schools years (210 days each=420 hours/year) plus 73 days for the 22/23 school year from July through November 14, 2023.

[5] Calculated at 2 hours/day for 20/21 and 21/22 (840 hours), plus for 73 days (146 hours) for 22/23.

[6] Calculated at 1.5 hours/day for 20/21 and 21/22 (630 hours), for 73 days (109 hours) for 22/23.