New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 586508 - NYC: 237919

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (hereinafter referred to as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Request by: REDACTED (hereinafter referred to as “Parent”)

Hearing Dates: September 20, 2023, October 27, 2023

Actual Record Close Date: November 26, 2023

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2023

For the Student:

REDACTED, Esq., Attorney

REDACTED, Parent Student

REDACTED, Assistant Director of REDACTED

For the Department of Education:

REDACTED, Esq., Agency Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 29, 2023

For the Student:

REDACTED, Esq., Attorney

REDACTED, Parent Student

For the Department of Education:

REDACTED, Esq., Agency Attorney

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”)

through the Parent’s Due Process Complaint (“DPC”) filed on or about September 13, 2022. In the DPC, the Parent asserted that the District failed to provide the Student a free appropriate public education (“FAPE”) during the 2022/2023 school year by failing to provide him with an appropriate program and services. Parent requested relief in the form of the following: continue the Student’s program for the 2022/2023 school year until the District offer’s the Student FAPE, including: fulltime 12-month placement at REDACTED (or a comparable alternative); transportation to/from the placement along with PT, SLT, OT, and Counseling per the 2019 IEP ^[1]; convene an IEP to develop an appropriate IEP for Student, consistent with prior orders, recommendations from medical and educational experts, and evaluate information; and locate an appropriate NPS program; an order directing the District to provide Student with services and supports necessary for him to access and attend an appropriate education program; an order for an orientation and mobility assessment; an order for independent educational evaluations, including but not limited to, transitional/vocational assessment and assistive technology; an order for an independent educational consultant; an order for appropriate assistive technology; compensatory educational services; and funding for reasonable transportation to evaluations and services for Student and Parent.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on November 7, 2022. A pre-hearing conference was held on December 16, 2022. Status conferences were held on February 1, 2023, February 23, 2023, March 27, 2023, April 27, 2023, May 22, 2023, June 22, 2023, and July 21, 2023. A hearing on the merits was held on September 20, 2023 and October 27, 2023. At the hearing, the District presented exhibits which were introduced into evidence but no witnesses. The Parent introduced exhibits into evidence and presented two witnesses by affidavit. There were thirteen extensions of the compliance date to allow for the District to complete its investigation, for witness availability and for the submission of closing briefs. Post closing briefs were due on November 21, 2023. The District submitted its closing brief on November 22, 2023 with an explanation why it was late. Parent’s counsel submitted his closing brief on November 24, 2023 without explaining why it was late. Parent’s counsel was reminded twice that it was due by close of business on November 21st but continued to submit it late. As a result, the closing brief of Parent is precluded from the record. The record closed on November 26, 2023.

FINDINGS OF FACT

The Student was a REDACTED student during the 2022/2023 school year. He is diagnosed with [REDACTED], Language Disorder, Specific Learning Disorder with impairments in reading, Specific Learning Disorder with impairment in written expression, Specific Learning Disorder with impairment in math, Developmental Coordination Disorder, Autism Spectrum Disorder, Acute [REDACTED]; [REDACTED] Disorder with mixed emotions and [REDACTED] (P-Ex. L, O). The Student also suffers from [REDACTED] and sometimes requires a wheelchair (P-Ex. L, O). The Student is classified as Other Health Impairment and his classification is not in dispute.

The last IEP developed for the Student was on May 14, 2019 (P-Ex. G). The IEP team recommended that the Student be deferred to the CBST for a non-public school (“NPS”) placement, for 12 months, with related services consisting of counseling, occupational therapy, physical therapy, speech and language therapy, and a health paraprofessional (P-Ex. G). While the District tried to locate a NPS, the Student continued to attend a public school (P-Ex. O). According to the Parent, the May 14, 2019 IEP was not implemented (P-Ex. O). In April 2020, the Student began to attend REDACTED (P-Ex. O). The Student attended REDACTED during the 2020/2021 and 2021/2022 school years (P-Ex. O). For the 2022/2023 school year, the Student attended REDACTED from July until November 2022 (P-Ex. O).

On June 18, 2022, IHO [REDACTED] issued a Findings of Fact and Decision (“FOFD”) finding that the District failed to offer the Student a FAPE for the 2021/2022 school year and that REDACTED was an appropriate placement (P-Ex. H). In addition, IHO [REDACTED] had previously granted a pendency order mandating the District to fund related services to the Student consisting of individual occupational therapy, 2 x 45, individual speech and language therapy, 5 x 60, individual counseling, 2 x 50, individual physical therapy, 1 x 45 and 3 x 60, all for the 12 month school year; and for the extended school year, included a 1-1 fulltime paraprofessional and transportation to and from REDACTED and to and from physical therapy (P-Ex. H). In his FOFD, IHO [REDACTED] directed the District to provide Parent and Parent’s counsel with an accounting for the total number of hours for speech and language therapy, occupational therapy, physical therapy, and counseling the Student was entitled to from the date of the complaint until the date of his order and the total number of hours of speech and language therapy, occupational therapy, counseling and physical therapy provided or actually paid for from the date of the complaint until the date of his order (P-Ex. H). He further ordered the District to provide make-up sessions for the speech and language therapy, occupational therapy, counseling and physical therapy he did not receive during 2022 (P-Ex. H).

At the hearing, the Parent introduced two witnesses, the Assistant Director of REDACTED and the mother. The mother testified that the Student did not have enough credits to graduate (P-Ex. O). He did not earn enough credits during his initial year of high school (including not having a placement available in 2019/2020, until he started REDACTED in April 2020) (P-Ex. O). The Student did not have the physical stamina for a full day of instruction when he first started REDACTED (P-Ex. O). The Student is medically fragile and vulnerable to normal health issues (both in severity and duration) (P-Ex. O). Initially, the Parent signed a contract with REDACTED in August 2021 (P-Ex. Q). In the spring of 2022, the Parent signed a contract with REDACTED for additional classes starting in spring 2022 and into the 2022/2023 school year (P-Ex. O). The Student attended REDACTED from July 2022 until November 2022 (P-Ex. O).

The District did not present any witnesses at the hearing. The District contends that the District should not be required to pay for the Student’s tuition at REDACTED for the 2022/2023 school year because Parent failed to offer proof of a contractual obligation. This fact is irrelevant because the Parent has not alleged a direct/funding or reimbursement case under Burlington -Carter in the due process complaint (P-Ex. A).

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, Forest Grove v. T.A., 129 S. Ct. 2484[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.

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 presented a case with documentary evidence but based on my review I find that the District failed to meet its burden of proof and did not provide the Student with FAPE for the 2022/2023 school year. The District failed to hold an IEP meeting or to develop an IEP for the Student for the 2022/2023 school year.

PENDENCY

The pendency provisions of the Individuals with Disabilities Education Act (IDEA) and the New York State Education Law require that "during the pendency of any proceedings [relating to the identification, evaluation or placement of a child with a disability], unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child . . .until all such proceedings have been completed" (20 U.S.C. § 1415[j]; see, 34 C.F.R. § 300.518[a]; Education Law § 4404[4]; 8 NYCRR 200.5[l][1]; 8 NYCRR 200.5[m]). See Ventura de Paulino v. New York City Dep’t of Educ., 959 F.3d 519, 531 [2d Cir. 2020]; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 [2d Cir. 2014]; Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 386 F.3d 158, 163 [2d Cir. 2004]. Pendency has the effect of an automatic injunction, which is imposed without regard to such factors as irreparable harm, likelihood of success on the merits, and a balancing of the hardships (Zvi D. v. Ambach, 694 F.2d 904 [2d Cir. 1982]; Drinker v. Colonial School Dist., 78 F.3d 859 [3d Cir. 1996]). The purpose of the pendency provision is to provide stability and consistency in the education of a child with a disability (Honig v. Doe, 484 U.S. 305 [1987]). It does not mean that a student must remain in a particular site or location (Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751 [2d Cir. 1980], cert. denied 449 U.S. 1078 [1981]; Application of the Bd. of Educ., Appeal No. 99-90), or at a particular grade level (Application of a Child with a Disability, Appeal No. 95-16).

Under the IDEA, the inquiry focuses on identifying the child's then-current educational placement at the initiation of the proceedings (Zvi D., 694 F.2d at 906). Although not defined by statute or legislative history, the phrase “then current placement” has been found to mean either: (1) the placement described in the student’s most recent implemented IEP; (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP (Dervishi v. Stamford Bd. of Educ. 653 Fed. App’x 55, 57-58 [2d Cir. June 27, 2016], quoting Mackey , 386 F.3d at 163; T.M., 752 F.3d at 170-71. Moreover, a prior unappealed IHO decision may establish a student’s current educational placement for purposes of pendency (Student X, 2008 WL 4890440, at *23; Letter to Hampden, 49 IDELR 197). Most importantly, the student’s right to pendency had automatically attached as of the filing of the due process complaint notice and absent a dispute between the parties about the student’s pendency services, there was no need to conduct a pendency hearing (See, SRO 23-108).

Based on the record and the facts in this matter, I find that Student’s pendency for the 2022/2023 school year lies in the unappealed FOFD dated June 18, 2022 and that the placement and services in that FOFD form the basis for pendency (P-Ex. H).

COMPENSATORY SERVICES

Where a deprivation of FAPE is found, the IDEA allows a hearing officer to fashion a remedy that he or she finds appropriate under the circumstances, including an award of compensatory education tailored to meet the unique circumstances of the case. Here, Parent is seeking compensatory services for the District’s denial of FAPE for the school year in question.

“Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay or failure to offer educational services to an eligible child.” Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011)). For a child who has been denied an appropriate education for a protracted period of time, including the time during which the matter is litigated, prospective placement without a compensatory remedy is analogous to an “empty victory.” Id. at 296. “One court concisely captured the essence of the compensatory education remedy, holding that ‘compensatory education’ involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period to provide a FAPE to a student.” Id. (citing G. v. Ft. Bragg Indep. Sch., 343 F.3d 295, 309 (4th Cir. 2003)); see also SRO 14-014, at p. 11-12 (distinguishing between a hearing officer’s order for occupational therapy services in the student’s new IEP as “prospective relief” and his order for compensatory occupational therapy, which the SRO found “constitutes a remedy which is retroactive relief designed to compensate the student for the district's failure to offer her a FAPE,” and rejecting the DOE’s argument that the remedies were duplicative).

“[I]t is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case.” SRO 10-052, at p. 15 (citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)). Within the Second Circuit, compensatory education 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 P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (&quote;[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]”). Pursuant to this approach, there must be evidence regarding the child’s“specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526. The goal of a hearing officer in awarding compensatory education is to make the child educationally whole. G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 624 (3d Cir. 2015) (“compensatory education must cover the entire period and must belatedly provide all education and related services previously denied and needed to make the child whole.”) (quoting 150 Cong. Rec. S11851 (daily ed. Nov. 24, 2004) (statement of Sen. Tom Harkin)). Compensatory education awards can generally be crafted pursuant to two schools of thought: a quantitative approach and a qualitative approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which the student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on the 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 the deficits).

The District bears the burden of proof with respect to the compensatory remedy sought. SRO 17-105 at 8-9. The District, however, failed to present any evidence at the hearing with regard to the amount or nature of compensatory services that should be awarded to the Student to address the FAPE denial.

DECISION

Based on a review of the record and the details mentioned above, I find that the District failed to provide FAPE to the Student for the 2022/2023 school year. I find that the Student is entitled to compensatory services as indicated below. I find that the Student is entitled to pendency for the 2022/2023 school year and that pendency lies in the FOFD dated June 18, 2022. As to the other requests for relief as mentioned in the due process complaint, they are denied for lack of evidence.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby: 1) ORDERED, that the District shall fund the Student’s tuition and fees at REDACTED from September 13, 2022, the date of the filing of the due process complaint, until November 26, 2023, the date of this Order.

2) ORDERED, that the District shall provide the Parent and Parent’s counsel with an accounting of the total number of hours of speech and language therapy, occupational therapy, counseling and physical therapy the Student should have received during the pendency period and an accounting for the total number of hours that they provided/ and or paid for of said services.

3) ORDERED, that the District shall fund make up services/compensatory services for the amount of hours the Student failed to receive for the above-mentioned services during the pendency period. These make up/compensatory services shall be without an expiration date. The make up services/compensatory services shall be provided by a provider of the Parent’s choosing at a reasonable market rate.

4) ORDERED, that the District shall convene a CSE meeting, within 35 days of this Order, to develop an IEP for the Student consistent with this Order and the prior orders in this matter.

DATED: November 26, 2023

Marisa Carbone____

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. District Evidence List No. Date Document Page 1 June 18, 2022 FOFD #211682 20

2. December 19, 2021 Order on Pendency For Case #211682 15

Parent Evidence List No. Description Date Pages

A. DPC 9/13/2022 14

B. Excluded

C. Excluded

D. Excluded

E. Excluded

F. Excluded

G. IEP 5/14/2019 20

H. FOFD (211682) 6/18/ 2022 16

I. Excluded

J. NYC DOE Pendency Form 9/13/2022 2

K. Excluded

L. Neuropsychological Evaluation 10/24/2017 37

M. PT Evaluation 1/28/2019, 3/23/2019 5

N. OT Evaluation 11/08/2017 17

O. Parent’s Affidavit Undated 8

P. REDACTED Affidavit Undated 8

Q. REDACTED Parent Contract 8/21/2021 12

R. REDACTED Contract Course Change 1/28/2022 2

S. REDACTED Progress Report 10/01/2022 4

T. REDACTED School Profile 2022-2023 Undated 2

U. Excluded

V. Excluded

W. Excluded

X. Excluded

Y. REDACTED Resume Undated 1

Z. REDACTED 2022-2023 Tuition Affidavit 6/16/2023 1 AA. REDACTED Letter RE 2021-2022 and 2022-2023 Tuition 6/16/2023 1 BB. REDACTED 2021-2022 Tuition Affidavit 6/16/2023 1

CC. REDACTED Remoter Instruction Description Undated 2

DD. TDN1 8/19/2022 3 IHO Evidence List No. Document Date Pages

I. DOE Closing Brief 11/21/23 12

Footnotes

[1] As per the due process complaint, this action is not a Burington-Carter action where the Parent has rejected a public-school program and instead opted for a private placement; at this time, the Parent is requesting the DOE fund REDACTED/services under pendency until a FAPE is provided.