New York City Department of Education, Impartial Hearing Decision

Case Number: 587725 – NYC: 238967

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (Student)

District: REDACTED

Hearing Requested by: Parent

Record Close Date: August 22, 2023

Hearing Officer: Amy Porter

Date of Decision: August 22, 2023

Procedural Background

On September 20, 2022, the Parent filed a due process complaint against the New York City Department of Education (District) alleging a failure to provide Student with a free appropriate public education (FAPE) for the 2020-2021, 2021-2022, and 2022-2023 school years. (Ex. A).

On January 27, 2023, I issued an order granting Parent’s request for Neuropsychological, Speech and Language, Occupational Therapy, and Assistive Technology evaluations.

Presentations of the Parties

The due process hearing was held on May 24, 2023, May 30, 2024, June 5, 2023, July 18, 2023, and July 25, 2023.

At the hearing, the Parent presented 29 documents and six witnesses: REDACTED (Assistant Head), REDACTED REDACTED REDACTED REDACTED (School); REDACTED REDACTED (Senior Pathologist), a senior speech-language pathologist; REDACTED (Pathologist), a speech-language pathologist; REDACTED (Occupational Therapist), an occupational therapist; and REDACTED (Neuropsychologist), a neuropsychologist. The District presented one document and no witness testimony.

Background

Student is now REDACTED. Student has a history of hearing loss, along with linguistic, cognitive, motor, and academic learning delays for which he has received special education services since preschool.

Neurologist conducted a comprehensive neuropsychological evaluation of Student in March and April 2023. (Exs. BB, CC, Tr. 22-33 5/30/23). He was diagnosed as having borderline intellectual functioning, language disorder, attention-deficit hyperactivity disorder, and specific developmental disorder of motor function. Neurologist found that the severity of Student’s learning challenges “is above and beyond those expected of a student with specific learning disabilities.” Id. (Ex. BB)

Issues

In addition to arguing that the District failed to provide a FAPE, the Parent argued that her unilateral placement for the 2022-2023 school year was appropriate. She requested an order that the District fund tuition for the Student’s 12-month 2022-2023 school year as well as compensatory education that included a specific number of hours of speech language therapy, occupational therapy, tutoring, assistive technology training, and a specific list of assistive technology equipment. Finally, the Parent requested a declaration that Student shall be provided with a 12-month school year programming going forward

The District did not present a prima facia case and conceded that it failed to provide a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. Thus, I find that the District failed to provide a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years

The District did not challenge the appropriateness of Student’s placement for the 2022-2023 school year or Student’s entitlement to compensatory services.

Instead, the District argued that the Parent was not entitled to funding of tuition or compensatory services for a 12-month school year.

The District also argued that the award of compensatory services should be restricted to a reasonable time and suggested two years. The Parent maintained that the award should not be restricted, or alternatively, valid for five years.

For the reasons which follow, I find that the Parent’s placement is appropriate for a twelve-month school year, that the Parent is entitled to the compensatory services she requested based on a twelve-month school year calculation, and that these compensatory services should be limited to a three-year period.

ANALYSIS

Parent’s Placement

The Parent asserted that her unilateral placement of Student at School for the 2022-2023 twelve-month school year was appropriate. The District argued in essence that the placement was only appropriate for the ten-month school year.

The Parent has the burden of proving that the unilateral placement was appropriate. To do this, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provided “educational instruction specifically designed to meet the unique needs of the student”. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.

Appropriateness of Placement

Since 2021, Assistant Head has been working in her current position at School. Before this position, she was Director of Admissions at the Professional Children's School, where she also previously taught. At School, she coordinates the day-to-day operations, leads weekly team meetings, and supervises paraprofessionals and special education teachers. She also has day-to-day interactions with and constant observations of Student. Based on her experience in her current position, her knowledge of the Student’s program, and her familiarity with the Student, I find Assistant Head’s testimony credible. She reviewed Student’s records and described the School, Student’s needs, and how School was equipped to address Student’s needs and did so. (Ex. X, Tr 38 - 39).

The District did not provide any witnesses or elicit any testimony during crossexaminations to show that the School was not appropriate for the Student. Nor did the District contest that the Parent presented sufficient testimony to show that a 10-month School program was appropriate for Student.

Therefore, I find that the Student’s placement was appropriate.

12-Month School Year

The Parent asked for reimbursement for a twelve-month school year. The District argued that the evidence did not demonstrate the need for an extended school year (ESY).

Under the Individuals with Disabilities Education Act (IDEA), school districts are required to ensure that ESY services are made available to students if those services are necessary to provide them with a FAPE. 34 C.F.R. § 300.106. Pursuant to State regulations, students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression" (8 NYCRR § 200.6[k][1]). State regulations define substantial regression as a "student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." (8 NYCRR § 200.1[aaa]).

New York federal courts have generally considered a period of eight weeks or more to be the “inordinate period of review” entitling a student to ESY. However, the Second Circuit has not defined what constitutes an “inordinate period of review”. Eight weeks is only a guideline and not the sole standard for review. D.D–S. v. Southold Union Free Sch. Dist., 2011 WL 3919040 *16 (E.D.N.Y. 2011); F.L. v. Bd. of Educ. of Great Neck Union Free Sch. Dist., 274 F. Supp. 2d 94, 125 (E.D.N.Y. 2017).

In another Circuit, an ESY may be required if “the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an ESY.” A claimant must show that “an ESY is necessary to permit the child to benefit from his instruction.” To do this, “[c]laimants can rely on expert opinion testimony to make this showing and are not required to present empirical proof of actual prior regression.” Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 315 citing Cordrey v. Euckert, 917 F.2d 1460, 1471-1473 (6th Cir.1990). “[T]he regression standard . . . is best interpreted not to require absolutely that a child demonstrate that he has regressed in the past to the serious detriment of his educational progress in order to prove his need for a summer program. Instead, where there is no such empirical data available, need may be proven by expert opinion, based upon a professional individual assessment.” Id. at 1472.

Neurologist recommended a 12-month school year for Student. (Tr. 19 5/30/23). If Student was in only a ten-month program, his difficulties with memory retention would cause him to suffer learning loss. (Tr. 23 5/30/23).

The District argued that Neurologist did not demonstrate that substantial regression would occur over the summer months. The Parent argued that the Student’s extreme lack of progress, due to being deprived of FAPE, demonstrated that the Student required ESL.

Most importantly, the extensive testimony by Assistant Head established that, if the Student did not attend summer school, he would likely regress in his ability to “sit in the classroom with other peers, to regulate his emotions within the classroom . . . . [E]ven just following school expectations and routines . . . . would be a challenge for him.” Assistant Head indicated that just a weekend off for Student could cause regression so “having a summer off would make it even more difficult for [him] to get back into routines.” (Tr. 39 5/24/23).

The combined testimony from Assistant Head and Neurologist showed that Student needs an ESY. These expert testimonies are sufficient considering that no further empirical data is available and could only be gathered by risking Student’s substantial regression.

Once there was evidence in the record indicating that the student required ESY services to prevent regression, the District now had the burden to rebut it and offer evidence to the contrary. C.H. ex rel. F.H. v. Goshen Cent. Sch. Dist., 2013 U.S. Dist. LEXIS 4491 *46. But the District did not present any witnesses or rebuttal testimony.

The testimony and evidence established that the twelve-month program for Student at School for the 2022-2023 school year was reasonably calculated to enable him to receive educational benefit and make progress, and met his unique needs. I therefore find that the Parent’s unilateral placement of Student at School for the 2022-2023 twelve-month school year was appropriate.

I further find that the equities support the District’s responsibility for tuition for the twelve-month school year.

Compensatory Services

The Parent requested compensatory services for the District’s failure to provide the Student with a FAPE for the 2022-2023 school year. The District did not object to the Student receiving compensatory services, but argued against the twelve-month school year calculation.

A hearing officer may award compensatory education relief when there has been a denial of FAPE. An award of additional services should aim to place a Student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. “[T]he ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place.” Reid v. District of Columbia, 401 F.3d 516, 524 (DC Cir. 2005).

Courts have frequently used a quantitative method to calculate the amount of services missed so that the services can be made up through compensatory education. M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996); Manchester Sch. Dist. V. Christopher B. 807 F. Supp. 860, 872 (D.N.H. 1992). Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE and award compensatory service with an eye towards making up that time. See M.C. v. Central Reg. Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996) (holding that “a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required by the school district to rectify the problem”).

The District did not object to, contradict, or offer rebuttal testimony regarding recommendations from the neurologist, occupational therapist, and speech-language pathologists. Instead, the District argued that all these expert recommendations for services should be based on a calculation of ten-months. (See the District’s calculations in Ex. 1).

Based on Neurologist’s background, experience and her detailed evaluation of Student, I find her testimony credible. (Ex CC 1-9, BB). Neurologist recommended that Student receive 980 hours of one-to-one tutoring in special education, calculating ten hours of service per week for two separate 46 week school years, as well as six weeks for the 2022-2023 summer school. (Exs. BB-5, CC-9, 46; Tr. 30-33 5/30/2023).

The District asserted that a ten-month school year is 36 weeks; compensatory tutoring services should consist of no more than 720 total sessions based on a calculation of 360 sessions over two years.

The occupational therapist credibly testified and recommended that Student should receive compensatory services of 360 sessions of occupational therapy per year, which multiplied by two years equals 720 total sessions. (Ex. AA; Tr. 1, 5/30/23). Pathologist credibly recommended 184 speech-language therapy sessions based on two sessions per week for two separate twelve-month school years. (Ex. Z; Tr. 43-45 5/24/23). For occupational and speech-language therapy, the District also sought to limit the calculations to a ten-month school year.

Finally, Senior Pathologist credibly testified and recommended 30 hours of Assistive Technology Training. She opined that Student needed multiple assistive technology devices in order to function in the classroom. (Exs. M, S, Y; Tr. 53-70 5/24/2023, Tr. 5, 7-9 6/5/23). There was no objection from the District to the recommended technology training or devices. Thus, I find that the Student is entitled to this training and the devices and items requested, as ordered below.

The District’s argument that compensatory services calculations should be based on a ten-month school year is its same argument that tuition should be based on the ten-month school year. Having already found that a twelve-month placement is appropriate, I now also find that compensatory services should be based on a 12-month school year or 42 weeks per year.

I find that the Parent’s request for compensatory education is supported by the record and reasonably calculated to provide the educational benefits that would have accrued from special education services the District should have supplied in the first place.

Finally, I agree with the District that the award of compensatory services should not exist in perpetuity. I find that a three-year period is an appropriate time to use the services ordered below.

Therefore, I ORDER the District:

- directly fund tuition to School for the 2022-2023 school year; - pay at reasonable market rates, until three years from the date of this order, for the following services: a. 900 hours of one-on-one tutoring b. 126 hours of occupational therapy c. 168 hours of speech language therapy d. 30 hours of assistive technology training - provide Student with the following assistive technology equipment and alternative and augmentative communication equipment: a) Alternative and Augmentative Communication (“AAC”) Equipment:

o Apple iPad Mini TouchChat HD with Word Power loaded on to Apple iPad Mini Protective Case for iPad Mini b) Assistive Technology Equipment: o Microsoft Surface 3, 13.5” Microsoft Surface Prop Pen Bluetooth Mouse C-Pen Reader by Scanning Pen o Applications for Microsoft Surface 3 Snap and Read by Don Johnston software for Microsoft Surface 3 Epic! Books membership (digital membership to be purchased for Microsoft Surface 3) IXL Subscription (digital membership to be purchased for Microsoft Surface 3) Clicker Writer – Word Processing Program for Microsoft Surface 3 MindView by Matchware to be used for generating and organizing thoughts prior to completing any school reports, papers, narratives &Ava- for real-time captioning in the classroom, community, requires purchasing Ava premium plan Bluetooth microphones (4) for real time captioning on devices.

Dated: August 22, 2023

Amy Porter

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.