New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 589375 - NYC: 240425

FINDINGS OF FACT AND DECISION

Case Number: 240425

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Date of Hearing: January 11, 2023

Record Closed Date: January 11, 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the January 11, 2023 Hearing For the REDACTED

None

For the Parent

REDACTED, Esq., Attorney for Parent

REDACTED, Parent

I. Introduction and Procedural History

On November 10, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by her Parent (“Parent” or “Parents”). A pre-hearing conference was held on November 22, 2022 and a status conference was held on December 20, 2022. A one-day hearing was held on January 11, 2023. The REDACTED (“REDACTED”) did not appear, and Parent was represented by REDACTED, Esq.. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective January 11, 2023.

II. Background

Student has been diagnosed and classified by the REDACTED as a Student with Autism. (Exh. A and Exh. B). An Individualized Education Program (“IEP”) meeting held for the 2022-2023 school year on April 14, 2022. (Exh. C). Parent filed a due process complaint on October 14, 2022, alleging a denial of Student’s right to a Free and Appropriate Public Education (“FAPE”). The REDACTED did not appear for either the conferences or the hearing. Parent had three witnesses who provided direct testimony by affidavit (Exh. F, Exh. G and Exh. H).

III. Discussion

FINDINGS OF FACT AND DECISION

Student witnesses an alleged altercation in the Summer of 2021 involving a staff member and Student’s brother which has had significant negative impact on both siblings, including increased behaviors, and a continued lack of progress in Student’s recommended program. (Exh. H, page 1).

An IEP meeting was held on April 14, 2022 and recommended an 8:1+1 class, and related services including counseling, occupational therapy, speech language therapy, Parent Counseling and Training, as well as after school Special Education Teacher Support Services (“SETSS”) ten hours per week. (Exh. C). Prior to the meeting, Parent submitted an ABA progress report which recommended continuation of home-based ABA services. (Exh. D). Parent is adamant, with the support of the evaluating neuropsychologist and ABA provider, that Student requires an ABA based school program, and a home based program. (Exh. H).

An independent neuropsychological evaluation was conducted in August of 2022 and recommended (Exh. E). Student’s cognitive functioning was found to be in the very low range., her receptive language skills were found to be in the extremely low range, with difficulties in language processing, and her academic skills were considerably delayed. (Exh. E, page 11 and Exh. F, page 2). The evaluator diagnosed Student with autism spectrum disorder with both cognitive and language delays, and recommended a program with full day, individual intervention using a systemic behavioral methodology, home-based Applied Behavior Analysis (“ABA”), related services and thirty hours of ABA in her current classroom until a program can be located. (Exh. E, pages 15-16 and Exh. F, pages 2-3). The evaluator also recommended compensatory education hours calculated at 30 hours per week, for each week that Student was denied appropriate ABA services, from the time period between July to December, or 24 weeks, for a total of 720 hours of compensatory ABA therapy. (Exh. F, page 3).

Student’s ABA provider also provided testimony by affidavit at hearing and described Student’s needs and how they are and should be addressed, including an increase in ABA services. (Exh. G). After witnessing a school incident involving Student’s brother, Student has presented with increased fearful behaviors and difficulty focusing. (Exh. G, page 4). As a result of this increased stressor, and the resulting impact on Student’s education, the provider recommended an increase of home-based services to twenty hours per week. (Exh. G, page 6). The provider also recommended that Student be provided 30 hours of ABA pushed in until a suitable school could be located. (Exh. G, page 6).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction."

(Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “to meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir.

2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services.

(See 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not submit evidence, provide testimony, or otherwise argue that the IEP provided FAPE for the 2022-2023 school year. (Tr. 28). The uncontroverted allegations of the Parent were that the no Individualized Education Program was developed prior to the beginning of the school year. (Tr. 117). Thus, the REDACTED has not met its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

COMPENSATORY EDUCATION SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d

Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Under the qualitative approach, the examination should focus on the child’s needs; “some Students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). 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. Reid, supra at 526.

Parent requests 720 hours of compensatory ABA therapy, for which Parent provides evidence to support. (Exh. E and Exh. F). Therefore, I order the REDACTED to provide a bank of 720 hours of compensatory ABA therapy to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.

RECONVENE AND HOME-BASED SERVICES

Parent also requests that the CSE team reconvene to recommend an appropriate home based ABA program as week as a New York State approved non-public school. (Exh. A). In support of this request, Parent has provided the evaluation and testimony of a neuropsychologist who provides clear and compelling reasons to recommend a non-public school. (Exh. E and Exh. F). Clearly, the present placement is not appropriate and a more specialized school is necessary. Parent requests thirty hours per week of push-in ABA services until such a placement is located, and that request is supported by the evidence. Lastly, Parent requests an increase in home-based ABA services to twenty hours per week, and provided support for this request. Therefore, I order the REDACTED to provide services, as requested and defer Student to the REDACTED for a non-public school placement.

IV. Order

IT IS THEREFORE ORDERED THAT:

• • The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.
• • The REDACTED shall reconvene the Committee on Special Education within fourteen (14) days of receipt of this Findings of Fact and Decision to defer Student to the REDACTED to recommend an appropriate New York State approved non-public school.
• • The REDACTED shall fund thirty hours per week of push in Applied Behavioral Analysis therapy until such time as an appropriate New York State approved non-public school is located.
• • The REDACTED shall provide up to twenty hours per week of home-based Applied Behavioral Analysis therapy to Student to be provided by a licensed and/or certified provider, at a rate not to exceed reasonable market rate.
• • The REDACTED shall provide a bank of compensatory education, including 720 hours of compensatory Applied Behavioral Analysis therapy, to be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

Dated: January 24, 2023

AUDREY DANIEL, ESQ.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed.

An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

EXHIBITS ADMITTED AT HEARING

REDACTED

None.

Parent

Exhibit Name Date Pages

A Parent’s Impartial Hearing Request 10/14/22 5

B Individualized Education Program 10/26/21 38

C Individualized Education Program 04/14/22 43

D ABA Progress Report 03/31/22 9

E Independent Neuropsychological Evaluation 08/15/22 21

F Affidavit of Dr. REDACTED 01/04/23 3

G Affidavit of Dr. REDACTED 01/04/23 7

H Affidavit of REDACTED UNDATED 2

I Resume of Dr. REDACTED UNDATED 8

J Resume of Dr. REDACTED UNDATED 4

Impartial Hearing Officer

None.