New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 586944 - NYC: 238294

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: June 27, 2023

Actual Record Close Date: July 19, 2023

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 27, 2023

For the Student:

Redacted, Esq., Attorney

Redacted, Legal Intern

Redacted, Parent Student

For the Department of Education:

Redacted, District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about September 16, 2022 (P-Ex. A). In the DPC, the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2020/2021, 2021/2022 and 2022/2023 school years for failure to provide an appropriate IEP and related services (P-Ex. A) ^[1]. The Parent requested relief in the form of, inter alia, independent evaluations, compensatory services, and a deferral to the Central Based Support Team (“CBST”) for a non-public school placement (P-Ex. A).

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on November 28, 2022. A prehearing conference was held on January 10, 2023, to discuss the issues in the case and an Interim Order was entered by the undersigned for independent educational evaluations. A status conference was held on February 27, 2023, March 30, 2023, April 27, 2023, and May 22, 2023. A hearing on the merits was held on June 27, 2023. The District failed to appear and was found in default. The Parent presented exhibits, which were admitted into the record^[2] and presented five witnesses by affidavit. The record closed on July 19, 2023. There were six extensions of the timelines.

FINDINGS OF FACT

The Student was a Redacted student who has been attending a [REDACTED] specialized school for her kindergarten year. The student has been diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder (“ADHD”), combined type and is classified as a Student with a Speech or Language Impairment. The Student presents with delays in speech and language skills, fine motor skills, visual motor skills, sensory processing, social development, transitions, accepting limits, and cognitive and executive functions.

The most recent IEP was from May 11, 2022, for the Student’s “turning 5” review. The Committee on Special Education recommended a [REDACTED] school in a class of 8-1-1 with related services of occupational therapy, speech and language therapy, and parent counseling and training. According to the father, the Student did not receive special education services from the Committee on Pre-School Education (“CPSE”) despite the Student having been evaluated by them. The Parent requested that the Student be evaluated in October 2021.

The Parent was concerned with the evaluations and recommendations from the May 11, 2022, IEP so they had the Student evaluated by a neurologist on June 1, 2022. The evaluator noted that the Student exhibited delays in speech and language functioning, demonstrated behavioral issues, was frustrated and rocked back and forth, easily distracted, hyperactive, and presented with sensory issues regarding food and clothing. She diagnosed the Student with Autism Spectrum Disorder and ADHD.

The Parent never received a school location letter. The Parent went to the District on August 29, 2022, and found out what school was recommended for the Student for her kindergarten year. On September 15, 2022, Parent wrote a letter to the District requesting independent educational evaluations for the Student. It was their belief that the Student had not been appropriately evaluated by the District and wanted more testing done to determine all areas of suspected disability. On September 16, 2022, Parent filed the request for an impartial hearing. On January 10, 2023, at the pre-hearing conference, the undersigned ordered independent educational evaluations for the Student that consisted of the following: neuropsychological evaluation, autism skills assessment, occupational therapy evaluation, assistive technology evaluation, speech and language evaluation and sensory integration evaluation.

In February 2023, the Student was seen for a speech and language evaluation. Testing results indicated overall deficits in her receptive, expressive and pragmatic language skills. Recommendations included increased frequency of her current speech and language therapy in order to target receptive, expressive and pragmatic language, and the use of an Augmentative and Alternative Communication (“AAC”) device as indicated in her recent assistive technology evaluation.

In January 2023, the Student was seen for an occupational therapy and sensory integration evaluation. Testing results indicated difficulties with distractibility and impulsivity in response to challenging activities. It was also noted that her motor coordination skills were inhibiting her visual-motor integration skills and that she presented with minor delays in fine motor skills due to poor motor coordination and motor planning; mild difficulties with ocular-motor skills; mild delays in Activities of Daily Living; and specific auditory and tactile sensitivities. Recommendations included increased frequency of her current occupational therapy.

The Student was also seen for an assistive technology evaluation in January 2023. Observations indicated that the Student was unable to verbally demonstrate basic self-and communication expression in order to communicate her basic wants and needs. Recommendations included use of 2 AAC devices -one dedicated to express her wants and needs at school and at home and the second to address her writing, reading and math deficits to be used throughout the academic day in school and at home for completing academic assignments.

The Student was also seen for a neuropsychological evaluation in January and February 2023. The evaluator testified that he observed her in her kindergarten class and that there were a significant number of tantrums, self-stimulatory behaviors, scripting, physical aggression, dropping to the floor in upset and without upset, making highpitched sounds, crying and screaming. He further testified that the Student exhibits significant expressive, receptive, pragmatic language deficits and variable attention with challenges with decreased frustration tolerance, increased anxiety, difficulty with selfregulation and that she engages in self-stimulatory and maladaptive autistic behavior that needs to be addressed and has significant deficits in self-regulation, adaptation to change, social relatedness, emotional expression, verbal and non-verbal communication related to her Autism. He opined that being in an inappropriate program is doing great harm to the Student. He further opined that the Student requires an extended school year program in a small school placement with children with autism, inclusive of a 1-1 Applied Behavior Analysis (”ABA” ) therapy with trained professionals on a full-time basis throughout the day with speech and language therapy and occupational therapists who are skilled at working with students with autism. In addition, he emphasized that the Student must receive access to an AAC device to enable her to access language and communication effectively. He further opined that the Student requires at home ABA therapy and a full-time ABA program special education program and that until such time as a full-time ABA program is available for the Student, she should receive push-in ABA therapy at her current school.

The District failed to appear at the hearing and failed to present any evidence that it offered a FAPE to the Student for the years in question.

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.

The District failed to appropriately evaluate the Student. An appropriate program begins with an IEP that accurately reflects the results of evaluations to identify the student’s needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. See, SRO 08-052, SRO 08-060. Reevaluations must be conducted every three years unless both parents and the district agree that a re-evaluation is unnecessary. 34 CFR §300.303(b)(2). It is fundamental that the CSE’s placement recommendation be based upon the IEP and that the IEP be based upon current evaluations. See, SRO 11-126. In the instant matter, the District failed to evaluate the Student for years and is the reason why the IEPs were so deficient and caused a denial of FAPE for the three years.

Here, the District failed to appear at the hearing and was found in default. They did not present a case and therefore failed to meet its burden. Based on my review of the documents and affidavit testimony, I find that the District did not provide the Student with FAPE for the 2020/2021, 2021/2022 and 2022/2023 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 and compensatory tutoring to attempt to place the Student in the position she should have been in, if she had received the supports required as indicated in the private evaluations and based on the denial of FAPE for the three school years in question.

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 2020/2021, 2021/2022 and 2022/2023 school years. I further find that the student is eligible for compensatory services and tutoring as indicated below and that the recommendations in the independent educational evaluations should be followed and provided to the Student.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby: 1) ORDERED, that the district shall defer the Student to the Central Based Support Team for placement in a non-public school full-time ABA program on a twelve month basis and until one is found, the district shall provide the Student with 30 hours per week of 1-1 ABA services to be pushed into the student’s current placement and 3 hours per week of BCBA supervision to be provided by a provider of the parent’s choosing at a reasonable market rate.

2) ORDERED, that the district shall fund at home ABA services for the student for 15 hours per week and 6 hours per week of BCBA supervision to be provided by a provider of the parent’s choosing at a reasonable market rate.

3) ORDERED, that the district shall fund parent counseling and training 4 hours per month for the parent to be provided by a provider of the parent’s choosing at a reasonable market rate.

4) ORDERED, that the district shall fund a bank of 690 hours of ABA for the student along with 69 hours of BCBA supervision to be provided by a provider of the parent’s choosing at a reasonable market rate.

5) ORDERED, that the district shall fund a bank of 138 hours of parent counseling and training for the parent to be provided by a provider of the parent’s choosing at a reasonable market rate.

6) ORDERED, that the district shall fund 138 hours of occupational therapy for the student to be provided by a provider of the parent’s choosing at a reasonable market rate.

7) ORDERED, that the district shall fund 92 hours of assistive technology direct instruction for the student to be provided by a provider of the parent’s choosing at a reasonable market rate.

8) ORDERED, that the district shall fund 92 hours of assistive technology parent training to be provided by a provider of the parent’s choosing at a reasonable market rate.

9) ORDERED, that the district shall fund 48 hours of assistive technology/speech language services to be provided to the student by a provider of the parent’s choosing at a reasonable market rate.

10) ORDERED, that the district shall fund 92 hours of sensory based feeding therapy for the student to be provided by a provider of the parent’s choosing at a reasonable market rate.

11) ORDERED, that the district shall fund 230 hours of speech and language therapy for the student to be provided by a provider of the parent’s choosing at a reasonable market rate.

12) ORDERED, that the district shall fund a sensory based feeding therapy evaluation for the student to be provided by a provider of the parent’s choosing at a reasonable market rate.

13) ORDERED, that the district shall fund and provide the student with two assistive technology devices as recommended in the assistive technology evaluation.

DATED: July 30, 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

NONE

Parent Evidence List No. Pages Document Date

A Demand for Due Process Hearing 09/16/22

11 B IEE Request Letter 09/15/22

3 C Affidavit of Neuropsychologist 11/28/22

2 D Affidavit of Director of Redacted 11/30/22

3 E Affidavit of Executive Director Redacted 12/01/22

7

EVALUATIONS AND ASSESSMENTS

F Neuropsychological Evaluation 03/16/23

12 G ABA Skills Assessment 01/18/23

16 H Speech/Language Evaluation 02/19/23

35 I Occupational Therapy Evaluation 02/19/23

7 J Sensory Integration Evaluation 02/19/23

14 K Assistive Technology Evaluation 02/19/23

19 L Redacted Hospital Report 02/23/22

2 M Educational Evaluation 11/06/21

6 N Occupational Therapy Evaluation 11/27/21

5 O Speech and Language Evaluation 11/12/21

5 P Psychological Evaluation 10/23/21

COMMUNICATION WITH THE DISTRICT

Q Initial Request for Evaluation and Consent 10/06 & 07/21 R CPSE Initial Referral Packet Multidates

3 S Parental Provision of Requested Information 10/12/21

2 T Email scheduling CSE Meeting 01/05-07/22

4 U Email Communication Re: Kindergarten Placement 01/26/22

2 V Email Communication Re: Turning 5 03/17-25/22

3 W Email Communication Re: Turning 5 03/25/22 - 04/6/22

3 X Email Communication Re: Turning 5 04/5/22-05/6/22

3 Y Email Communication Re: Turning 5 05/06/22-6/20/22

6 Z Email Communication Re: Kindergarten 05/16/22 – 08/25/22

3 AA Email Request for Reevaluation 09/07-08/22

2

ADDITIONAL DOCUMENTS

BB. Resume of Redacted Undated 2 CC Resume of Redacted Undated 1 DD Resume of Redacted Undated 4 EE Resume of Redacted Undated ^[9] FF Compensatory Service Plan 06/20/23 21 pages

GG. Affidavit of Redacted 06/20/23 6

HH. Affidavit of Redacted 05/25/23 8

II. Affidavit of Redacted 06/20/23

KK. Affidavit of Parent IHO Evidence List NONE 06/20/23

Footnotes

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

[2] The list of exhibits is attached.

[9] JJ Affidavit of Redacted 06/20/23 6