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CASE NUMBER: 582332 - NYC: 234120
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 09/07/2022
Date of Hearing: 11/16/2022, & 03/03/2023
Actual Record Closed Date: 04/03/2023
Date of Decision: 04/14/2023
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
NOVEMBER 16, 2022:
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s representative 1”)
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 3, 2023:
For the Student:
Parent’s representative
For the Parents:
For the Department of Education:
REDACTED (hereinafter referred to as “District’s representative 2”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On September 7, 2022, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on September 28, 2022, to preside over the claims in the DPC in terms of New York State (“NYS”) regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and NYS Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
Pendency was requested in the DPC (Ex. P-A-5) and the Pendency hearing took place on November 16, 2022. An Order on Pendency was issued on December 1, 2022 (Ex. IHO-II). Subsequent to the Pendency hearing Parent filed an amended DPC (“ADPC”) (Ex. P-C), which amendment was approved by the District on November 30, 2022. The ADPC only contains claims pertaining to the 2022-2023 school year (“SY”).
It is asserted in the ADPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a Free Appropriate Public Education (“FAPE”). Parent sought, inter alia, a finding that the DOE denied Student a FAPE for the 2022-2023 SY, an Independent Educational Evaluation (“IEE”) and an assessment, a reevaluation and compensatory services (Ex. P-C-5, & P-C-6). Parent’s representative confirmed that there was no separate relief being sought under Section 504 of the Rehabilitation Act and accordingly I do not address it further in this decision (T. P25, P26, & P45).
The IH took place on March 3, 2023.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the NYS Education Law[4] and its implementing regulations. [5]
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative 2 confirmed the following at the IH: that the DOE was not putting on a case in the sense that the DOE was not calling any witnesses or putting forward any documents; and that the DOE was not presenting a “Burlington prong one” case, however maintained that Parent may not be able to meet the prong two burden demonstrating the appropriateness of the unilateral placement, and therefore requested that Parent’s request for relief should be denied (T. P35, & P37). After making an opening statement, District’s representative 2 confirmed that the DOE rested its case (T. P37) and later waived a closing statement, resting on the evidence (T. P45).
Parent, through the Parent’s representative, submitted seven (7) additional documents in support of the Parent’s case at the IH (and are listed below), after confirming with the District’s representative 2 that there were no objections from the DOE to those documents being admitted into evidence (T. P35, & P37).
In an opening statement Parent’s representative asserted, inter alia6: It is not a tuition reimbursement or unilateral placement case and Parent has no burden; the DOE was not putting on a case and essentially there is a concession that the DOE (denied Student a) FAPE and the DOE has not met its burden in this case; how the CSE met to develop a Turning-Five IEP and only recommended integrated co-teaching (“ICT”), removing the one-to-one Special Education Itinerant Teacher (“SEIT”) services that Student had been receiving; how despite Student’s significant needs, the DOE inappropriately recommended a general education setting, further elaborating on how Student’s needs were not being met; and stated the relief sought.
PREVAILING PARTY
Parent is the prevailing party, and an award or Order is granted in favor of Parent.
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 [7].
6
T. P38 through P42.
If a procedural violation is alleged, an administrative 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 [8].
The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE [9].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [10]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [11]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" [12].
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student. [13]
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[14]
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 is not applicable in this case.[15] District’s representative 1 confirmed that the DOE bears the burden in these proceedings on the matters raised in the ADPC being pursued by Parent (T. P25).
Evaluation/Re-evaluation:
A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation [16]. A district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary [17].
A CSE may direct that additional evaluations or assessments be conducted to appropriately assess the student in all areas related to the suspected disabilities [18].
Any evaluation of a student with a disability must use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP [19].
A district must: Rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors [20]; and ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social, and emotional status [21].
An evaluation of a student must be sufficiently comprehensive to identify all the student's special education and related services’ needs, whether or not commonly linked to the disability category in which the student has been classified [22]. IEES:
An IEE is an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student [23]. If the parent disagrees with an evaluation obtained by the school district, the parent has a right to obtain an independent educational evaluation at public expense [24].
An IEE may be requested by parents [25]. If an IEE at public expense is requested by parents, “the school district must, without unnecessary delay, either ensure an independent educational evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria” [26]. A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees [27].
Upon the receipt of the request for an IEE, a school district must either make the evaluation available at public expense “without unnecessary delay” or must file a due process complaint requesting a hearing to “show that its evaluation is appropriate or that the evaluation obtained by the Parent is inappropriate.”
"When an evaluation is conducted in accordance with [34 CFR 300.304 through 34 CFR 300.311] and a parent disagrees with the evaluation because a child was not assessed in a particular area, the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" [28]. When a parent seeks an IEE to make up for a missing assessment, the district may not avoid either filing for due process or funding the IEE by simply conducting the missing assessment [29].
An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint” [30] . The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process” [31].
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” [32]
Although the DOE has not conceded that it failed to provide Student with a FAPE for the SY in issue, it elected not to call any witnesses to testify to offer any explanation let alone a “cogent and responsive” one. As such, I have sought to determine if the program provided for the 2022-2023 SY was reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of the evidence which includes the evaluations on record, the two IEPs, as well as Parent’s affidavit testimony. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,[33] 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.’” (my emphasis).[34] The IEP must have been “reasonably calculated to provide some ‘meaningful’ benefit.” [35]
Not only did the DOE not present evidence to support the program offered to Student for the SY, but was initially preparing to challenge Parent’s evidence for relief not even being pursued by Parent in the ADPC. The DOE chose not to put on a case (outside of resting on the documents) to prove that the Student was provided with a FAPE for the SY in issue. Although not the Parent’s obligation in the first place, Parent has made out a case that the District denied the Student a FAPE for the SY in issue, causing a deprivation of educational benefits, and the District has not met its burden in this regard.
Parent testified (Ex. P-I) inter alia that:
Student has various delays and academic deficits, struggles across various academic areas, and is classified as “speech or language impaired”; for the 2021–2022 SY Student attended a Pre-Kindergarten program at the Attending School (defined on page 22), and later entered kindergarten in a DOE community school in September of 2022; a pre-school IEP dated August 31, 2021 (hereinafter “The Pre-School IEP”) recommended SEIT services for 3 hours per day (1:1 basis), as well as Speech Language Therapy (“SLT”) twice per week for 30 minutes (2:1 basis), Occupational Therapy (“OT”) twice per week for 30 minutes (2:1 basis), and Counseling twice per week for 30 minutes (2:1 basis); and according to The Pre-School IEP:
“It is the informed and guided clinical opinion of this evaluator that [Student] presents with at least a 25% delay in [Student’s] ability to effectively integrate, modulate or organize sensory information, impacting [Student’s] attention and driving sensory seeking behavior... [Student] cannot tell [Student’s] own age ... [Student] cannot match objects by color, shape, and size... [Student’s] mother expressed concern regarding [Student’s] speech and language skills and behavioral difficulties. [Student’s] speech is unclear and it is difficult to understand [Student]. [Student] is often defiant and ignores instructions. [Student] gets easily frustrated and throws temper tantrums ... [Student] does not use words or gestures to express distress rather than screaming, hitting, throwing something, etc. and [Student] does not accept helpful suggestions or solutions from others ... [Student] is self-directed and gets frustrated easily. [Student] presents a challenge to sit, focus and follow through with one step commands consistently ... [Student] cannot avoid common dangers ... [Student] is not able to show an understanding of and is not able to follow classroom rules.”
On or about April 8, 2022, the CSE met to develop a “school aged” IEP for Student (hereinafter “The Subsequent IEP”); some of [Student’s] needs were discussed; the CSE team determined that [Student] continued to present with various global delays and deficits; the CSE was well aware of [Student's] significant delays and difficulties in school, and was presented with information indicating the need for individualized services and supports in kindergarten; the team eliminated SEIT services and merely recommended the provision of ICT in a community school along with SLT, OT, and Counseling; and according to The Subsequent IEP: “[Student] has difficulty accepting boundaries, [Student] needs to be redirected in order to stay focused and complete an activity ... [Student] has a very short attention span and needs constant redirection and prompting to stay on task during group activities or on a one-to-one basis. [Student] exhibits non-compliant behavior, [Student] can be resistant and defiant when placed with certain classroom demands, and, at times, has difficulty transition from one activity to another. [Student] is unable to write [Student] name independently, [Student] needs a visual prompt and needs redirection to grasp the pencil appropriately. [Student] presents with mild delays in expressive/receptive language skills and severe delays with social skills (attending to others, turn taking, following directions/classroom rules, etc.). Attention span per activity is 1-2 minutes ... During the Turning 5 IEP meeting, [Parent], mother, reported that [Student] has been receiving [Student’s] SEIT [services] and speech and language therapy services, but had not yet received [Student’s] occupational and counseling services.”
Student requires individual attention and assistance with virtually every task in school; as a preschooler, Student received individualized 1:1 SEIT services; Parent believes Student required these, or similar services entering kindergarten; the CSE should have increased Student’s supports and services for the 2022-2023 SY.
The DOE failed to offer any individualized special education instructional support for the 2022-2023 SY and took away Student’s SEIT support; in the absence of supplemental individualized help and support, the current recommendation is insufficient to meet Student’s needs; the DOE failed to appropriately evaluate Student in all suspected areas and needs a comprehensive neuropsychological evaluation to better understand Student’s needs and disabilities; over the past several SYs, Student has also exhibited adverse behaviors that interfere with Student’s ability to learn; despite Student’s history of adverse behaviors and non-compliance, and the impact those behaviors have had in school, the DOE has not administered a Functional Behavioral Assessment (“FBA”) and failed to develop an appropriate Behavior Intervention Plan (“BIP”); Parent has repeatedly requested increased behavioral supports, and does not believe that the DOE has given Student adequate supports in school to address Student’s behaviors; and Student has not received SEIT services the entire 2022-2023 SY pursuant to “pendency” (despite being ordered to provide those services).
In the ADPC it is asserted that the CSE team was improperly comprised (Ex. P-C-4). The IDEA requires that an IEP team include: the parent(s) of the child; at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the child, or where appropriate, at least one special education provider of the child; a district representative qualified to supervise/provide special education who is knowledgeable about the general education curriculum and the District's available resources; and an individual who can interpret the instructional implications of evaluation results (who may be an existing, required member of the team other than the parent). [36]
In New York, the CSE carries out the functions of the IEP team.[37] The composition of the CSE meets the IDEA requirements but also includes a school psychologist, who may also serve as the district representative or individual who can interpret the instructional implications of the evaluation results.[38] The Official Analysis of Comments to the federal regulations indicates that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP. [39]
According to the attendance page of The Subsequent IEP, it is clear that there was no school psychologist present and that the CSE team was therefore not duly constituted on April 8, 2022 (Ex. P-D-23). While it has been held that not all procedural errors render an IEP legally inadequate under the IDEA [40], this procedural failure was not insignificant and had material implications for Parent and Student.
In Footnote #2 of the ADPC it is asserted that the DOE failed to perform any formal updated testing/evaluation prior to the “Turning 5” IEP Meeting, or as part of the “Turning 5” process, which denied Student a FAPE (Ex. P-C3). Despite having no additional evaluative material before it [41], not only did the DOE remove the 1:1 support Student had been receiving as mandated in The Pre-School IEP without additional supplemental support or services being added in its place, the CSE team determined that the Student no longer required or was no longer eligible to receive special education services and/or program during July/August (i.e., a 12-month program) (Ex. D-16, & D-17).
A District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of FAPE to the child. [42]
The term ESY services means special education and related services that: are provided to a child with a disability i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency. [43]
Based on the CPSE team’s findings and recommendations for the prior SYs, ESY was found necessary and recommended. The record however lacks the necessary evidentiary support, given the CPSE team’s recommendation for the 2021-2022 SY, to justify removing those ESY services for the 2022-2023 SY, further evidencing that the improperly constituted CSE team at the IEP meeting was material. The CPSE had previously determined for the prior SY that Student was eligible for a 12-month program as Student would benefit from a consistent educational and therapeutic program to address Student’s delays and prevent regression (Ex. P-B-20).
Based on the Parent’s testimony, the contents of The Pre-School IEP and The Subsequent IEP, as well as the classroom observation and the two evaluations on record (Ex. P-B, P-D, P-E, P-F, P-G, & P-I), I am unable to find that the DOE offered or provided “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [44], for the SY in issue. The District cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the Student [45].
If a District knows or has reason to believe that a student will require certain services, it must evaluate the student’s needs and offer appropriate supports in a timely manner [46]. The District had and still has an affirmative obligation to offer the student a FAPE [47]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate[48] (my emphasis).
The DOE, inter alia, failed to:
Appropriately address Student’s learning challenges and struggles in The Subsequent IEP; conduct appropriate evaluations in areas of Student’s suspected disabilities; have sufficient evaluative material before it to warrant the removal of individualized 1:1 support services (without having an appropriate substitute in place in the IEP); recommend appropriate and sufficient support services, given the documented behavioral issues impacting Student’s ability to access Student’s education and the impact it was having on Student’s performance, as well as that ESY services were determined necessary for Student and no subsequent evaluation suggesting otherwise; provide Student’s “pendency services”, despite being ordered to do so, resulting in a deprivation of educational benefits.
In the circumstances, I find that there was a denial of a FAPE for SY in issue (with a risk that this will continue for the remainder of the 2023-2023 SY) and the DOE did not discharge its burden in this regard.
[II] Appropriate Remedies: IEE, FBA, and BIP
It is a prerequisite for Parent requested IEEs that the Parent must be found to have disagreed with the DOE’s evaluation. The regulations do not speak to how a parent must manifest this disagreement to the district [49]. It has also been held that a parent does not need to use a specific word or phrase to express parent’s disagreement with a district evaluation [50].
In Footnote note #2 of the DPC and the ADPC it is asserted that “The Parent disagrees with the appropriateness of the most recent evaluations performed by the DOE, including the Educational and Psychological Evaluations performed in June and July of 2021” (Ex. P-A-3, & P-C-3). Parent has expressed the requisite disagreement.
In dealing with the alternative basis for the parents’ claim to IEEs based upon their disagreement with the October 2014 Triannual Evaluation, which the District Court had found to be untimely, the Court in the Trumbull Bd of Educ.[51] case stated:
“The IDEA does not provide a statute of limitations for a parent's right to disagree with an evaluation for the purpose of obtaining an IEE at public expense. But that does not mean that a parent will be able to abuse the process to obtain a publicly funded IEE based on their disagreement with an old evaluation. … As a practical matter, a parent's right to disagree with an evaluation and obtain an IEE at public expense is tethered to the frequency with which the child is evaluated. And the IDEA establishes a logical timeframe in which a parent's right to request an IEE is actionable.”
"A parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees." 34 C.F.R. § 300.502(b)(5). Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated.
By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii).
Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, see id. § 1414(a)(2)(A), (a)(2)(B)(i), the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs. For example, if a child is reevaluated each year, the logical time frame within which to contest the evaluation is one year. Otherwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation.
The timeframe within which a parent can disagree must be adjustable because the evaluation that a parent may contest is a moving target.” (my emphases).
The Court went on to find that applied to the facts of the case, the parents’ disagreement with the October 2014 Triennial Reevaluation was not untimely, as they had asserted their general disagreement with all evaluations of the student in that case conducted before his next reevaluation occurred in October 2017 and that the statute of limitations did not apply to parents' IEE request [52]. Given that the last evaluation occurred in 2021, the Parent’s request is timely.
It has been held that a parent may request a district funded IEE in a DPC in the first instance.[53] It has also been noted that because this method can be used unfairly, a parent may be in a better position to elicit district funding of an IEE if the IEE was requested outside of the more formal context of an impartial hearing [54].
Where a request for IEEs was received for the first time in the parents' DPC, the state review officer determined that the District ought not to be faulted for attempting to defend the appropriateness of the evaluations it conducted at the resulting impartial hearing [55]. Even though the DOE could have defended it evaluation at the IH, it did not attempt to do so.
In assessing the DOE’s evaluation, I am unable to find, based on the limited documentary evidence presented at the IH and the lack of any witness testimony on behalf of the DOE, that the DOE’s evaluation was thorough and comprehensive in that “collectively, they used a variety of assessment tools and strategies to gather relevant functional, developmental and academic information about the student, including information from the parents and the student’s teachers and providers that was also employed to determine the content of the student’s IEPs” [56]. In general, there is insufficient evidence on record to show that collectively, the DOE’s evaluation relied on technically sound instruments that assessed cognitive and behavioral factors, in addition to physical and developmental factors [57]. Given my finding regarding the DOE’s failure to evaluate, Parent has provided a sufficient basis to justify an award for the requested IEE, namely the neuropsychological evaluation. This IEE is being ordered at market rate.
The purpose of an FBA is to isolate a target behavior and develop a hypothesis regarding the function of the target behavior. A target behavior is one that interferes with a student's ability to progress in the curriculum and to achieve the student's IEP goals. Once the target behavior is identified and the hypothesis developed, a positive BIP can be prepared to address the target behavior with strategies and interventions, if necessary, or the target behavior can be addressed using a more informal approach [58].
Aside from the specific circumstances in which either the IDEA or state law requires an FBA (or the one circumstances where a BIP is required), not applicable here, IEP teams have discretion whether to conduct an FBA (and generally gives the IEP team a discretion to determine when a BIP is necessary for a student to receive a FAPE). Because IEP teams have an obligation to provide FAPE to students with disabilities, they also must conduct an FBA if they determine that doing so is necessary to develop an appropriate IEP 59. The CSE team that developed The Subsequent IEP had determined that Student neither needed strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impeded the Student’s learning or that of others, nor a BIP (Ex. P-D-7). It however was documented that during the “Turning 5 IEP meeting, [Student’s] classroom teacher shared [Student] is very influenced by the bad behaviors of the other students and will try to engage in those unwanted behaviors with [Student’s] peers. [Student] is also easily distracted. [Student] rushes through activities to move on to try to do something else” (Ex. P-D-4). It is also documented in Student’s IEP that Parent “shared that at home [Student] does not copy behaviors from others, that [Student] simply is a jokester and will try to do things to make others laugh”; and “stated that [Student’s] home tantrums have mainly subsided” (Ex. P-D-4). Whilst there was no DOE witness called to testify as to the contents of this document, Parent relied heavily upon the contents of The Subsequent IEP both in the ADPC and her testimony, without challenging these statements. Given that the requested IEE, namely the neuropsychological evaluation is being ordered, and that the CSE team is being ordered to reconvene to revise Student’s IEP, as appropriate, once the IEE is provided to the CSE, the team is also be ordered to determine if, based upon the contents of the ordered IEE, the CSE team should exercise their discretion to conduct an FBA (and if appropriate a BIP as necessary) for Student to receive a FAPE.
[III] Appropriate Remedies: Compensatory Services Parent is also seeking compensatory education or compensatory services for the District’s failure to provide Student with a FAPE. 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. [60]
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.
59 C.F. v. New York City Dep't of Educ., 62 IDELR 281 (2d Cir. 2014). See also J.C. v. New York City Dep't of Educ., 67 IDELR 109 (2d Cir. 2016, unpublished) where a district's decision to forgo an FBA when the student began to act out at school did not rise to the level of a denial of FAPE because the IEP adequately identified the behavioral impediments and implemented strategies to address the behavior.
As the claims and DOE’s failure to provide a FAPE cover one SY, I find that an award of compensatory services is appropriate, especially as Student’s “stay-put” rights have not been observed despite the DOE being ordered to provide them to Student.
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 deprivation (with the compensatory award being the specific services needed to correct those deficits).
The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.[61] Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA [62]. Given the duration of the deprivation and the evidence on record, this case lends itself more appropriately towards the quantitative approach.
Parent’s representative made clear the compensatory hours that Student should be awarded with respect to the type and scope of compensatory services that would be appropriate if a FAPE deprivation were found to have occurred, namely 360 hours of one-to-one SEIT services representing approximately six months of the DOE failing to provide services to date (up to the time of the IH) during the 2022-2023 SY at market rate (T. P42). The DOE provided no evidence or argument to substantiate a reduction of any proposed compensatory hours to be awarded.
Parent’s representative noted that the Parent secured a provider to provide SEIT services to Student but that the school did not permit the provider to enter the building and did not provide the SEIT support itself (T. P40).
As SEIT services are "for the purpose of providing specialized individual or group instruction and/or indirect services to preschool students with disabilities"[63] (emphasis added) and are defined under State law as "an approved program provided by a certified special education teacher . . . , at a site . . . , including but not limited to an approved or licensed prekindergarten or head start program; the child's home; . . . or a child care location" [64], the award provides for “1:1 support from a special education teacher” in lieu of SEIT services for purposes of the awarded compensatory services. [65]
I note that while Parent testified that Student had not received the SEIT services pursuant to “pendency” (Ex. P-I-5), there is no similar testimony regarding the related services of SLT and OT. Parent’s representative’s summary of final relief claimed also does not list any of the related services as part of the relief sought (T. P40-P42).
The compensatory award allows Parent to obtain the services from a provider(s) of Parent’s own choosing and allows for flexibility, to ensure that Student receives the services being awarded. The award does however has an expiration date or period to ensure that the compensatory award is carried out within a reasonable period and is linked in time to the deprivation that resulted from the DOE’s failure to provide Student with a FAPE during this SY.
If the proposed relief is seeking an award for payment of attorney’s fees and expenses as part of this decision (Ex. P-C-6), only a court can determine which party is entitled to attorney’s costs, fees, and expenses, and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled thereto. [66]
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby: 1) ORDERED that, the NYC DOE is directed to fund the following IEE, by issuing payment directly to the provider of Parent’s own choosing, within thirty (30) days of the submission of a copy of the evaluation and invoice, a neuropsychological evaluation to be conducted by a New York State licensed psychologist, capped by the lowest amount the DOE’s Implementation Unit has paid for a substantially similar evaluation to the same provider during the six month period preceding the date of this decision, or at a rate not to exceed $7,000.00, whichever is the lesser.
2) FURTHER ORDERED that, the CSE shall convene a review meeting within 30 (thirty) days of the date of the neuropsychological evaluation (ordered pursuant to #1 of this Order) being obtained and provided by Parent to the DOE, to: a) Review the results of that evaluation (and the other evaluations conducted or obtained by the DOE and/or Parent), to revise Student’s program, and prepare an appropriate IEP that includes at a minimum: i) Accurate present levels of performance.
ii) Specific, meaningful, and measurable goals tailored to Student and based on Student’s current academic and functional levels.
iii) Appropriate related services.
iv) Appropriate modifications, and accommodations to be listed as part of the Student’s IEP program.
b) Determine if, after considering the recommendations set out in the neuropsychological evaluation (ordered pursuant to #1 of this Order) and the other evaluations conducted or obtained by the DOE and/or Parent, conducting an FBA (and if appropriate an BIP) is necessary to develop an appropriate IEP for Student, and if determined so by the CSE, it shall thereafter conduct an FBA, and if appropriate an BIP.
3) FURTHER ORDERED that, the DOE shall fund the following compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by duly NYS licensed provider(s) of the Parent’s own choosing at the provider’(s) customary and regular rate (i.e. “an enhanced rate”), limited to the amounts set out in #4 of this
Order:
a) 1:1 support from a special education teacher, calculated as follows: three hours per school day for each day that Student attended school (based upon attendance records to be supplied by Parent to the DOE’s Implementation Unit) during the period 09/07/2022 until the end of the 2022-2023 SY, by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
4) FURTHER ORDERED that the DOE shall make payment for the compensatory services (1:1 support from a special education teacher) ordered in #3 of this Order, at the prevailing market rate of the Parent’s duly licensed independent provider of choice capped at the lowest amount the DOE’s Implementation Unit has paid for a substantially similar service to the same provider(s) during the six months preceding the date of this decision, or if it has not paid the same provider(s) within the preceding six months, what it has paid for substantially services, to similar providers during the six month period preceding the date of this decision.
5) FURTHER ORDERED that, the bank of compensatory services set out in #3 of this Order shall not expire until the expiration of 16 (sixteen) months from the date of this Order.
6) FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services ordered in #3 of this Order within 15 (fifteen) days.
SO ORDERED.
DATED: April 14, 2023
H.A.C. (Signed Electronically
Impartial Hearing Officer
Harry A. Christodoulou
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 – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD [67]
PARENT’S EXHIBITS
P-A. DPC 09/07/2022 6 pages
P-B. IEP 08/31/2021 22 pages
P-C. ADPC 11/30/2022 6 pages
P-D. IEP 04/08/2022 23 pages
P-E. Classroom Observation 04/04/2022 2 pages
P-F. Psychological Report 06/20/2021 6 pages
P-G. Educational Evaluation 07/09/2021 8 pages
P-H. Prior Written Notice 05/10/2022 4 pages
P-I. Parent Affidavit: Parent 02/16/2023 5 pages
DOE’S EXHIBITS
DOE-1 Pendency form 11/04/2022 2
IHO’S EXHIBITS
IHO-I Order on Consolidation 10/28/2022 7
IHO-II Order on Pendency 12/01/2022 11
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 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].
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[12] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[13] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[14] 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 Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[15] NYS Educ. Law § 4404(1)(c).
[16] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(a)(2).
[17] 8 NYCRR § 200.4(b)(4); 34 CFR § 300.303(B)(1)-(2).
[18] 8 NYCRR § 200.4(b)(3).
[19] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304(b)(1)(ii); see Letter to Clarke, 48 IDELR 77 [OSEP 2007].
[20] 20 U.S.C. § 1414[b][2][C]; 8 NYCRR 200.4(b)(6)(x); 34 CFR 300.304(b)(3).
[21] 20 U.S.C. § 1414[b][3][B]; 8 NYCRR 200.4(b)(6)(vii); 34 CFR 300.304(c)(4).
[22] 8 NYCRR 200.4(b)(6)(ix); 34 CFR 300.304(c)(6).
[23] 8 NYCRR § 200.1(z); 34 CFR § 300.502(a)(3)(i).
[24] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[25] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b).
[26] 8 NYCRR § 200.5(g)(1)(iv); 34 CFR § 300.502(b)(2)(i)-(ii).
[27] 8 NYCRR § 200.5(g)(1); 34 CFR § 300.502(b)(5).
[28] Letter to Baus, 65 IDELR 81 (OSEP 2015).
[29] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[30] 8 NYCRR § 200.5(g)(2); 34 CFR § 300.502(d).
[31] Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 [E.D. Pa. Dec. 14, 2010]. See also S. Kingstown Sch. Comm. v. Joanna S., 2014 WL 197859, at *9 n.9 [D.R.I. Jan. 14, 2014], where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth"], aff'd, 773 F.3d 344 [1st Cir. 2014]) [cited in Application of a Student with a Disability, Appeal No. 21-021].
[32] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[33] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].
[34] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[35] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[36] See generally, 34 C.F.R. §§ 300.320-300.328; see also, Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations, 111 LRP 63322 (OSEP 2011).
[37] 8 NYCRR § 200.3(a)(1).
[38] A special education teacher or provider may also serve as the district representative. The regular education teacher, the special education teacher or provider, the school psychologist, and the district representative may also serve as the individual who can interpret the instructional implications of evaluation results. 8 NYCRR §§ 200.3(a)(1)(i) - (vi).
[39] IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006].
[40] (A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).
[41] In the Prior Written Notice dated May 10, 2022, the “assessments and materials identified” which “were reviewed and discussed” at the IEP meeting held on April 8, 2022 included only a “Classroom Observations” dated April 4, 2022 and a “Social History Update” dated February 16, 2022 (Ex. P-H-1).
[42] 34 C.F.R. § 300.106[a][2].
[43] 34 C.F.R. § 300.106[b].
[44] Rowley, 458 U.S. at 203.
[45] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).
[46] In re: Student with a Disability New York State Educational Agency.
[47] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).
[48] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].
[49] 8 NYCRR § 200.5(g); 34 CFR § 300.502(b)(1).
[50] See Genn v. New Haven Board of Education, 69 IDELR 35 (D. Conn. 2016) at pgs. 14 & 15, where it was indicated that “the Court is not persuaded that a parent must announce in a formalistic manner, "I, Parent, disagree with this assessment!" to be found to have disagreed in substance with the assessment”. The Court found that the parent had expressed disagreement in substance where a more in-depth analysis was sought where the parent felt the assessment was not sufficient to identify the student’s reading difficulties and had provided more than just a generalized request for more information.
[51] D.S. v. Trumbull Bd of Educ., 975 F.3d 152 (2d Cir. 2020).
[52] See page 14 and note 12 of the Trumbull Bd of Educ. case.
[53] See, e.g. Application of a Student with a Disability, Appeal No. 22-008.
[54] See, e.g. Application of a Student with a Disability, Appeal No. 21-170; Application of the Dep't of Educ., Appeal No. 21-135; Application of a Student with a Disability, Appeal No. 19-094.
[55] Application of a Student with a Disability, Appeal No. 21-172.
[56] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clark, 48 IDELR 77 [OSEP 2007].
[57] 20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x].
[58] Broward County Sch. Bd., 110 LRP 38160 (SEA FL 05/07/10).
[60] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[61] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.
[62] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[63] 8 NYCRR 200.16[i][3][ii].
[64] Educ. Law § 4410[1][k]; 8 NYCRR 200.16[i][3][ii].
[65] See Application of the Dep't of Educ., Appeal No. 20-163.
[66] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); and Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
[67] Ex. P-A, P-B, and DOE-1 were admitted at the Pendency hearing (T. P6, P8, & P9). The remaining exhibits were admitted at the IH on March 3, 2023 (T. P35, P37, & P38).