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CASE NUMBER: 589568 - NYC: 240597
FINDINGS OF FACT AND DECISION – AMENDED
Case Number: 240597
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., District # 25
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 10/07/2022
Hearing Requested by: Parent
Dates of Hearing: 04/26/2023
Record Close Date: 05/19/2023
Date of Decision: 05/19/2023
NAMES AND TITLES OF PERSONS WHO APPEARED ON April 26, 2023
For the Department of Education:
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Parent Student
[REDACTED], Neuropsychologist
[REDACTED], Director of the Service Provider Agency
BACKGROUND AND PROCEDURAL HISTORY
On October 7, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 240597, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)), Section 4404(1) of the New York State Education Law (Education Law), and Section 504 of the Rehabilitation Act. [1]
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2020-2021, 2021-2022, and 2022-2023 school years by failing to adequately evaluate the Student in all areas of suspected disability, which resulted in deficient individualized education plans (IEPs) that did not recommend specific or appropriate methodologies that addressed the Student’s needs.[2] Additionally, DOE did not respond to the Parent’s request for independent educational evaluations (IEEs) and generally excluded her from meaningful participation in the development of the IEPs. 3 In relief, the Parent seeks: (1) a finding that DOE did not offer the Student a FAPE; (2) an order that the Student be placed in an appropriate, approved, non-public school by DOE’s Central Based Support Team (CBST), plus push-in, applied behavior analysis (ABA) therapy at her current placement until that transition occurs; (3) IEEs for occupational therapy (OT), speech-language therapy (SLT), and assistive technology (AT); (4) an order that the CSE reconvene to develop a new IEP upon review of the IEEs; 4 (5) a functional behavior assessment (FBA) and behavior implementation plan (BIP) created by a board-certified behavior analyst (BCBA) at the District’s expense; and (6) compensatory education for one-to-one tutoring, OT, SLT, counseling and social skills training, and parent counseling and training (PCAT), all funded by the District at market rates and by the providers of the Parent’s choosing. [5]
I was appointed impartial hearing officer (IHO) on January [3], 2023; held prehearing conferences on January 10, 2023, and February 13, 2023; and adjudicated hearings on (1) January 18, 2023, when I granted the Parent’s interim request for neuropsychological and psychiatric IEEs; and (2) April 26, 2023, for the due process complaint.
At the due process hearing, DOE did not defend that it provided the Student with a FAPE
4 Review would also include IEEs for neuropsychological and psychiatric evaluations, completed per my interim order dated January 26, 2023. for any of the subject school years.[6] However, DOE contested the Parent’s requested relief in two ways: First, that the undersigned IHO lacked the authority to order a specific program and placement for the Student; and second, that the compensatory education award, created by a service provider based on the availability of its own programs and in anticipation of gaining the Parent’s business, rendered the proposal biased and unreliable.[7] The Parent’s case consisted of witness testimony (live and affidavit form) and documents placed in evidence, a list of which is appended to this Order.
FINDINGS OF FACT
The Student is now [REDACTED] years old and her eligibility for special education services and supports is not in dispute. She is classified with “Autism,”[8] and has been diagnosed with attention deficit hyperactivity disorder (ADHD)[9] and depression.[10] She presents with delays in writing[11] and expressive and pragmatic language skills,[12] high levels of distraction,[13] selective mutism,[14] and she has also been hospitalized for self-harm and aggression. [15]
The 2020-2021 School Year
The CSE convened on May 5, 2020, to create the Student’s 2020-2021 IEP.[16] It noted that the Student was below grade in writing and math[17] and struggled greatly to stay focused and organized.[18] It recommended that the Student continue in an integrated co-teaching (ICT) program, consisting of seven weekly periods of Math, six periods of English/Language Arts (ELA), and five periods each for Sciences and Social Studies.[19] The CSE also mandated PCAT (four 60-minute sessions per year), and SLT (three 40-minute group sessions per week). [20] Although the CSE reduced the length of the SLT sessions from 45 minutes to 40 minutes,[21] it maintained the Student’s extended-year service of two, 45-minute, weekly SLT sessions for the month of July.[22] The Parent raised concerns about the Student’s inability to retain information, and her lack of focus, underdeveloped writing skills, and poor penmanship, and the CSE responded by providing strategies for the Parent to try at home.[23] The CSE concluded: “[The Student] benefits from the [ICT] model. This model will best meet [the Student’s] needs…” [24]
The 2021-2022 School Year
The CSE again convened on May 5, 2021, to create the Student’s IEP for the 2021-2022 school year.[25] The IEP repeatedly acknowledged that the Student’s inability to focus interfered with her academic progress and that she needed one-on-one support and small group instruction.[26] The Student was now below grade level in Social Studies, Math, and English.[27] She was two points above a failing grade in Science and three points from failing ELA.[28] The CSE recommended the same ICT program as mandated in the previous year for ELA, Sciences, and Social Sciences, and reduced the Student’s Math support from seven periods to six.[29] The CSE also removed the Student’s PCAT and summer SLT services.[30] The IEP contained one goal for speech, two goals for writing, and two goals for speech-language, but no goals for math or other subjects. 31 The CSE again concluded, “[The Student] benefits from the [ICT] model. This model will best meet [the Student’s] needs…” 32
The 2022-2023 School Year
The CSE again convened on June 17, 2022, to create an IEP for the 2022-2023 school year. 33 The CSE relied in part on a DOE psychoeducational report completed in June of 2022 34 and the Student’s second quarter report card. 35 The IEP also cited to a four-year old evaluation completed sometime in 2018. 36 The CSE again repeatedly noted the Student’s diagnosis of ADHD and DOE’s observations of her inability to focus, disorganization, distraction, and a documented incident of self-harm that resulted in her hospitalization. 37 The Student was two grade levels behind with her writing and below standards in Social Studies. 38 The Student’s seventh-grade report card showed that she passed ELA by only three percentage points; passed five other subjects by only one percentage point; and failed music class. 39 Nevertheless, the CSE mandated the same ICT for the Student, but for the addition of two periods of Math support. [40] The CSE also provided one weekly session of counseling (40 minutes)[41] and recommended that the Student receive AT,[42] but reduced the Student’s SLT from three weekly sessions to two. [43] The Student was encouraged to attend lunch-time tutoring.[44] The CSE again concluded: “[The
31 Ex. I7-I11. 32 Ex. I19. 33 F21. 34 The undated and unsigned report refers to testing dates of May 24, 2022, and June 1, 2022. Ex. E1. 35 Ex. H. 36 Ex. F1. 37 Ex. F, F5. 38 Ex. F2. 39 E1. Student] is in the correct setting in a co-taught classroom.” [45]
On September 21, 2022, the Parent sent a letter to DOE, notifying it that she disputed the results of its evaluations because they lacked sufficient comprehensiveness, both in type and content.[46] The parent also requested a complete slate of IEEs (neuropsychological, SLT, OT, AT, psychiatric) because of the Student’s continued struggles and her need for a more supportive program and placement than an ICT classroom provided.[47] DOE did not respond to the Parent’s request for IEEs; however, it conducted its own SLT, OT, and AT evaluations on December 7, 2022, January 5, 2023, and January 4, 2023, respectively. [48]
The SLT evaluator reported that the Student exhibited selective mutism and never spoke to her during the assessment.[49] Instead, the Student provided some written responses (largely illegible), but the tests were incomplete and could not be scored.[50] The evaluator did witness the Student attempt to read one sentence during a classroom observation, but the Student managed only two words, then gave up, looking frustrated and unfocused.[51] Nevertheless, the evaluator did not recommend the Student for SLT, nor did she explain her recommendation. [52]
The OT evaluator noted that the Student exhibited difficulties in the areas of access and movement, life skills, management of classroom tools and materials, sensory skills for learning, and pre-vocational skills, but concluded that only the Student’s difficulties in the pre-vocational skills category “significantly” impeded her function.[53] The evaluator did not recommend OT, concluding that the Student’s challenges “are best addressed through classroom management and current related services (speech and counseling).” [54]
The AT evaluator assessed the Student’s speech and language capabilities, as well as her reading, writing, keyboarding, and other skills. The Student used a Chromebook in her classes and had access to a laptop (both of which she knew how to use, in addition to an iPad) [55]; and evaluator recommended a speech generating device such as an iPad with Proloquo4Text. [56]
DOE conducted a classroom observation, social history update, and FBA, and created a BIP (dated November 28, 2022, December 5, 2022, December 22, 2022, and December 22, 2022, respectively).[57] The school psychologist concluded that the Student “pretends that she cannot read.”[58] The FBA characterized the Student’s task-avoidant behaviors (e.g., hiding under a desk, playing with objects, talking to other students, taking extended bathroom breaks), as attentionseeking in nature[59] and the BIP generally recommended redirection and verbal praise to reorient the Student to resume classroom tasks.[60] Per the Student’s first-term 2022-2023 report card, she earned a grade average of 67.71 (64 is a failing score), passing ELA with a score of 65, but failing Chinese, Algebra, and Social Studies.[61] DOE mailed the Parent a “Promotion-in-Doubt” letter dated February 1, 2023.
The Parent again notified DOE via two letters dated December 22, 2022, and January 3, 2023, that she disputed the results of the SLT evaluation, FBA, and BIP because the evaluations and plan were insufficiently comprehensive; therefore, she requested funding for an SLT IEE, and an independent FBA and BIP.[62] DOE did not respond to the Parent’s requests.
The Parent arranged for neuropsychological and psychiatric IEEs, per my interim order dated January 18, 2023. The neuropsychologist conducted 15 procedures over three days and diagnosed the Student with Specific Learning Disorders with Impairments in Math and Written Expression, Social Communication Disorder, and Unspecified Depressive Disorder, in addition to reaffirming her prior diagnoses for ADHD and Selective Mutism.[63] He recommended the following placement: (1) a small, supportive, full-time, non-public, special education classroom (including the thorough consideration of a therapeutic residential school); (2) intensive, psychologically based intervention; (3) a small student-to-teacher ratio, direct instruction for learning weaknesses, and executive functioning support; (4) a strong socio-emotional curriculum; (5) compensatory services for academics, SLT, OT, AT, and counseling; (6) IEEs for AT, OT, and SLT; (7) individual psychotherapy; (8) psychopharmacological intervention; (9) continued SLT; (10) individual support in written expression using Orton Gillingham or a similar methodology; (11) individualized instruction in math; (12) additional interactive activities to counteract her challenges with inattention; (13) additional time to complete assignments; and (14) strong and regular communication practices between the Parent and the Student’s entire education team (teachers, therapist, psychiatrist, service providers). [64]
The psychiatrist evaluated the Student on approximately February 3, 2023, and diagnosed her with Autism Spectrum Disorder, ADHD, Selective Mutism, Social Communication Disorder, Expressive Language Disorder, Insomnia, and Acute Stress Disorder.[65] The doctor recommended the following placement and services for the Student: (1) a small, specialized non-public, special education school with a high teacher-to-student ratio; (2) a remediation program to address the Student’s regressions and lack of access to academic, therapeutic, and speech services; (3) coaching and pragmatic skills training; (4) an art program; (5) AT; (6) IEEs for physical therapy, OT, and SLT; (7) psychiatric support and medication; (8) PCAT; (9) completion of, and deference to, the recommendations contained in the neuropsychological IEE (in process at the time of the psychiatrist’s report); and (10) regular reassessments of the Student. [66]
The Parent contacted the Director of the Service Provider Agency and requested that she observe the Student and review her educational records to assess any need for compensatory education.[67] The Director[68] enlisted the assistance of a psychotherapist, a licensed SLT, and a licensed OT and AT professional (all independent contractors with her agency) and made the following remedial recommendations: (1) 644 hours of tutoring (7 hours a week, 69 46 weeks per year (i.e., an extended school year) for 2 years); (2) 138 hours of OT (1.5 hours per week for 46 weeks over 2 years); 70 (3) 184 hours of counseling, a portion of which may be used for PCAT (2 hours per week for 46 weeks for 2 years); 71 (4) 46 hours of AT (1 hour per week for 46 weeks); (5) 46 hours of AT training for the Parent; and (6) 138 hours of SLT (1.5 hours per week for 46 weeks for 2 years).[72] The Agency charged $150-$180 per hour for these services.[73] Because the aforementioned compensatory package only addressed the Student’s deficits, the Agency also
69 The seven hours are comprised of two hours of Orton Gillingham instruction, three hours of writing, and two hours of math. Ex. EE11.
70 Ex. EE.
71 Id. recommended comprehensive evaluations in OT, AT, and SLT to assess the Student’s prospective needs. [74]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[75] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.[76] For a procedural violation, an impartial hearing 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 parent’s 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.[77] In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. [78]
FAPE Denied to the Student
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [79] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from her disability and that enable her to make progress in the general education curriculum; and provide appropriate special education and services.[80] “A reviewing court may fairly expect [DOE] 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 [her] circumstances.” [81]
In this case, DOE stated on the record that it would not defend that it provided the Student with a FAPE, and therefore, provided no evidence to explain how the Student’s IEPs were reasonably calculated to enable the Student to make appropriate progress in light of her specific circumstances. I do not find that the IEPs, on their face and without additional explanation, confer a FAPE. Because DOE failed to provide any explanation, let alone a cogent and responsive one, for how the IEPs were reasonably calculated to enable the Student to make appropriate progress in light of her circumstances, I find that DOE failed to offer the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. [82]
IEEs for OT, SLT, AT, and FBA and BIP Granted
The Parent challenged to the comprehensiveness of the District’s evaluations in the DPC dated October 7, 2022, and her request for relief, as also memorialized in her letters to DOE dated September 21, 2022, and December 22, 2022.[83] In D.S. v. Trumbull Bd. of Educ.,[84] the Court did not require the Parent to defer to the district’s determination on which specific areas of a child’s possible disability to assess, nor did it require the Parent to request that the district conduct a specific evaluation. Instead, the Court highlighted the district’s responsibility to conduct sufficiently comprehensive evaluations of a student using a variety of evaluative and assessment tools. It also highlighted that if the district failed to conduct sufficiently comprehensive evaluations of the student, including failing to conduct assessments, the Parent then had a right to obtain an independent evaluation at public expense. Here, the Parent contested the comprehensiveness of the SLT, OT, and AT evaluations conducted by DOE, and DOE neither contested the requests, nor filed its own DPC to defend its evaluations.
The SLT evaluator, aside from inexplicably declining to recommend SLT, notwithstanding the Student’s years-long prior receipt of that service, acknowledged that the Student’s refusal to speak and instead provide partial responses in illegible writing left the evaluator with insufficient data to complete a report. Similarly, an OT evaluator did not explain how the Student’s delays were best addressed through her ICT classroom, SLT, and counseling when the Student nearly failed two grade levels in an ICT environment and the SLT evaluator concluded only a month earlier that the Student no longer needed SLT. Nor did the OT evaluator clarify how the Student’s one, weekly, 40-minute counseling session would remedy her OT deficits. Moreover, there is no evidence in the record that DOE ever evaluated the Student for OT services in the first instance, despite her well-documented deficient social interactions, speech, attention span, and motor skills. Similarly, DOE conducted an AT evaluation only after the Parent filed a DPC, notwithstanding its prior recommendation in the Student’s 2022-2023 IEP that the Student receive AT services,[85] which again requires DOE to fund the IEE. [86]
With respect to the Parent’s request for an independent FBA and BIP, I find that the results of the neuropsychological and psychiatric IEEs support this award because they repeatedly acknowledge the Student’s need for effective intervention to counteract the Student’s behavioral challenges, which manifest through detachment, avoidance, escape, inattention, and attentionseeking.[87] As a result, the Parent’s request for IEEs, an FBA, and a BIP is granted.
Compensatory Relief Granted In Part
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[88] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[89] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award 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.”[90] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[91] It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation). Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thu]s more likely to address [the student’s] educational problems successfully.” [92]
In New York, when there is a lack of FAPE and the parent seeks a compensation award, the burden lies with DOE to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[93] However even where DOE fails to offer its “position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome [including] where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[94] The specific award sought, therefore, must be evaluated, because (a) “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[;]”[95] and (b) “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.” [96]
Tutoring, OT, SLT, and Counseling Hours Granted
The Parent requests a bank of compensatory education to include 644 hours of tutoring using Orton Gillingham or a similar methodology, 184 hours of counseling, and 138 hours each of OT and SLT. The Parent estimates that these compensatory services will remediate the Student for DOE’s denial of FAPE for the subject school years. Although DOE provided no evidence regarding the appropriate compensatory education remedy for the Student, it nevertheless challenges the Parent’s request for services because the Service Provider Agency, presumably with an interest in administering the services to the Student, calculated the number of hours requested.
However, I find the relief sought reasonable and supported by the record. First, the neuropsychologist and the psychiatrist both endorsed compensatory services for the Student in all the areas recommended by the Service Provider Agency to remediate the Student due to DOE’s failure to provide her with an appropriate education. Furthermore, the Director of the Service Provider Agency, the psychotherapist, and the licensed SLT, and OT and AT professionals all hold multiple advanced degrees and certifications in their respective fields and often provide recommendations for compensatory education. The recommendations are based on two years of remediation (with each service administered at a modest rate of one-and-a-half to two hours per week), which equates to the 2021-2022 and 2022-2023 school years when the Student failed, or nearly failed her classes. The Agency bases its recommendation on an extended school year (e.g.,
46 weeks per year) in anticipation of continuing services over the summer months to address the Student’s regression, which I also find reasonable in light of the Student’s declining academic performance and behavioral functioning. Last, the Service Provider Agency’s hourly rates of $150 to $180 (assuming the Parent ultimately contracts with it) are within the ranges typically charged for these services. Because the Student is entitled to relief to put her in the position that she would have been in but for the DOE’s denial of FAPE for the subject school years, I grant the Parent’s request for compensatory education as set forth above.
AT Hours Denied
The Parent’s remaining claim for compensatory education relates to the Student’s need for AT services. The Parent (via the Service Provider Agency) requests 46 hours “to facilitate [the Student] to be in a position where she can utilize her device effectively, allowing it to be most impactful.”[97] The Parent also requests another 46 hours of AT services (again through the Service Provider Agency) for her own training on the device.[98] However, the Student does not yet have an AT device, and the Parent disputes DOE’s AT evaluation recommending an iPad with Proloquo4Text.[99] Consequently, I find it premature to supply the Student and the Parent with hours to train on a device before the Student receives an IEE to determine what, if any, device the evaluator recommends.[100] As a result, the Parent’s request for AT training hours is denied.
Order Placing the Student in an Appropriate Approved Non-Public School Denied
The Parent has requested an order directing DOE to defer the Student’s case to the CBST to identify, recommend, and immediately place her in an appropriate, approved non-public school. DOE contends that the undersigned IHO lacks the authority to issue such an order because it usurps the CSE’s power to create an IEP for the 2023-2024 school year, citing in support to Application of a Child with a Disability, Appeal No. 22-167.[101] I find that case inapplicable here because it did not conclude that an IHO could not order a CSE to provide specific services on an IEP. Rather, the IHO in that case erred by ordering home-based services at public expense in the absence of any evidence that the Student needed those services to receive educational benefit in the first instance.
Nevertheless, prospective relief such as an IEP amendment or the placement of the student in a specific program or placement may, “under certain circumstances, [have] the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs.” 102 Here, the Parent has obtained IEEs from a neuropsychologist and psychiatrist and will obtain an FBA, BIP, and additional evaluations for SLT, OT, and AT. I find that the CSE should have the opportunity to review these comprehensive evaluations and the recommendations therein to create an appropriate and current IEP.[103] As a result, I deny the Parent’s request to order an approved non-public-school placement for the Student and also deny the Parent’s request for interim relief in the form of push-in ABA therapy.
102
Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 (D.D.C 2018). Cf. Draper v. Atlanta, 518 F.3d 1275 (11th Cir. 2008) (Administrative law judge offered private placement at public expense as the remedy for multiple years of a denial of FAPE due to misdiagnoses, a failure to comprehensively evaluate, and a repeated failure of the CSE to modify the Student’s IEP after the Parent obtained private evaluations. “We do not read the Act as requiring compensatory awards of prospective education to be inferior to awards of reimbursement. The Act does not relegate families who lack the resources to place their children unilaterally in private schools to shouldering the burden of proving that the public school cannot adequately educate their child before those parents can obtain a placement in a private school. The Act instead empowers the district court to use broad discretion to fashion appropriate equitable relief.”).
ORDER
Based upon the above Findings of Fact, it is HEREBY:
1. ORDERED, that DOE shall fund the following comprehensive, independent educational evaluations of the Student to be performed by the provider(s) chosen by the Parent:
a. An occupational therapy evaluation at a cost not to exceed $1,450; b. A speech-language therapy evaluation at a cost not to exceed $1,450; c. An assistive technology evaluation at a cost not to exceed $2,000; and d. A functional behavior assessment at a cost not to exceed $1,500 and a behavior implementation plan to be conducted by a BCBA at a cost not to exceed $450.
DOE shall issue payment directly to the provider(s) of the Parent’s choosing within 30 days of submission of a copy of the invoice.
2. FURTHER ORDERED, that the Student is entitled to receive 138 hours of Occupational Therapy. DOE shall fund the Student’s OT sessions at a rate not to exceed $180 per hour and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory OT services shall not expire for two years from the date of this Order.
3. FURTHER ORDERED, that the Student is entitled to receive 138 hours of Speech-Language Therapy. DOE shall fund the Student’s SLT sessions at a rate not to exceed $180 per hour and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory SLT services shall not expire for two years from the date of this
Order.
4. FURTHER ORDERED, that the Student is entitled to receive 184 hours of counseling, inclusive of PCAT if deemed necessary by the provider of the Parent’s choosing. DOE shall fund the counseling sessions at a rate not to exceed $150 per hour and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory counseling services shall not expire for two years from the date of this Order.
5. FURTHER ORDERED, that the Student is entitled to receive 644 hours of 1:1 individualized academic remediation in accordance with the compensatory services plan provided by the Parent (Ex. EE). DOE shall fund the Student’s sessions at a rate not to exceed $170 per hour and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory tutoring services shall not expire for two years from the date of this Order.
6. FURTHER ORDERED, that the CSE shall meet within 14 school days after all evaluations have been made available to the District to evaluate the new data (i.e., the contents of the evaluations) and decide what changes, if any, are appropriate to the Student’s IEP and the services offered to the Student, given the findings of the evaluators. The CSE shall consider whether the Student requires a small, full-time special education classroom within a small, full-time, nonpublic school to access her education, as recommended by the Parent’s neuropsychologist and psychiatrist. The CSE shall also, after due consideration, provide the Parent with prior written notice that specifically addresses whether the CSE recommended or refused to recommend such services on the Student’s IEP and explain the basis for the CSE’s recommendation, including the evaluative information relied upon in reaching that determination.
7. FURTHER ORDERED, that the Parent’s remaining claims are DENIED.
SO ORDERED.
DATED: May 19, 2023
/s/ Roberta Wolf, Esq, Impartial Hearing Officer
Roberta Wolf
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
PARENT EVIDENCE
A. Demand for Due Process Hearing 10/07/22 15 pages
B. Request for Independent Educational Evaluations 09/21/22 3 pages
C. Affidavit of [REDACTED] 12/27/22 2 pages
D. Affidavit of [REDACTED] 12/20/22 1 page
E. NYC DOE Psychoeducational Evaluation Multidates 6 pages
F. NYC DOE Individualized Education Program 06/17/22 22 pages
G. NYC DOE Speech/Language Evaluation 12/07/22 6 pages
H. NYC DOE Final Report Card 2021-2022 School Year 06/24/22 2 pages
I. IEP 05/05/21 20 pages
J. IEP 05/05/20 20 pages
K. IEP 06/05/19 21 pages
L. Neuropsychological Evaluation 04/04/23 19 pages
M. Psychiatric Evaluation 02/03/23 18 pages
N. NYC DOE Report Card, 2022-2023, Term 1, Marking Period 4, Final Grades 01/31/23 2 pages
O. NYC DOE Assistive Technology Evaluation 01/05/23 13 pages
P. NYC DOE Middle/High School Occupational Therapy Of Function and Performance 01/04/23 14 pages
Q. NYC DOE Behavior Intervention Plan 12/22/22 5 pages
R. NYC DOE Functional Behavioral Assessment 12/22/22 5 pages
S. NYC DOE Social History Update 12/05/22 5 pages
T. NYC DOE Classroom Observation 11/28/22 2 pages
U. NYC DOE Student Transcript 09/15/22 1 page
V. NYC DOE Promotion in Doubt Letter 02/01/23 1 page
W. Request for Independent Educational Evaluations 01/03/23 2 pages
X. Request for Independent Educational Evaluations 12/22/22 2 pages
Y. Resume of [REDACTED] Undated 2 pages
Z. Resume of [REDACTED] Undated 2 pages
AA. Resume of [REDACTED] Undated 2 pages
BB. Resume of [REDACTED] Undated 4 pages
CC. Curriculum Vitae of [REDACTED] Undated 9 pages
DD. Curriculum Vitae of [REDACTED] Undated 6 pages
EE. Compensatory Service Plan 04/17/23 38 pages
FF. Affidavit of [REDACTED] 04/17/23 18 pages
GG. Affidavit of [REDACTED] 04/19/23 7 pages
HH. Affidavit of [REDACTED] 04/18/23 10 pages
II. Affidavit of [REDACTED] 04/19/23 16 pages
Footnotes
[1] Ex. A8.
[2] Id.
[3] Id.
[5] Id.
[6] See email thread, “Re: [REDACTED] #240597 Parent Exhibits,” dated March 16, 2023; Tr. p. 7 lines 23-25; p. 59 lines 1-4.
[7] Tr. pp. 59-63.
[8] Ex. E-G, I-K.
[9] Ex. E6.
[10] Ex. P1.
[11] Ex. E3.
[12] Ex. K1.
[13] Ex. E6, E5, H, F, J.
[14] Ex. G1.
[15] Ex. E2, F5.
[16] Ex. J20.
[17] Ex. J2.
[18] Ex. J.
[19] Ex. J11-J12. The Student previously received ICT as follows: five periods of Math, 10 periods of ELA, and one period for all other subjects (Sciences, Social Studies, Visual Arts, Technology, Theater, and Music). Id.
[20] Ex. J12.
[21] Id.
[22] Ex. J13. The Student, on a 10-month IEP, received no other summer services.
[23] Ex. J19.
[24] Ex. J20.
[25] Ex. I19.
[26] Ex. I.
[27] Ex. I1.
[28] Ex. I1-I2.
[29] Ex. I12.
[30] Ex. I12-I13.
[40] Ex. F14.
[41] Id.
[42] Ex. F7.
[43] Ex. F14.
[44] Ex. F21.
[45] Ex. F2.
[46] Ex. B.
[47] Id.
[48] Ex. G, O, P.
[49] Ex. G1.
[50] Ex. G.
[51] Ex. G2.
[52] Ex. G4.
[53] Ex. P.
[54] Id.
[55] Ex. O2, O4.
[56] Ex. O.
[57] Ex. T, R, Q, S.
[58] Ex. T2.
[59] Ex. R.
[60] Ex. Q.
[61] Ex. N.
[62] Ex. W, X.
[63] Ex. L10.
[64] Ex. L, HH.
[65] Ex. M16.
[66] Ex. M.
[67] Ex. EE.
[68] The Director holds two Master’s Degrees, four teaching certificates, is enrolled in a Ph.D. program, and is trained in ABA therapy and Orton Gillingham instruction.
[72] Id.
[73] Tr. p. 40, lines 7-22.
[74] Ex. EE.
[75] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[76] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[77] 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).
[78] 20 U.S.C. § 1415(f)(3)(E)(i).
[79] Rowley, 458 U.S. at 203.
[80] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[81] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[82] I further find that the Parent’s Section 504 claim is subsumed by the above IDEA analysis. The Parent did not identify any distinct regulatory requirement under Section 504 that is not subsumed; therefore, I will not separately analyze 504 claims raised in the DPC.
[83] Ex. B, X.
[84] 975 F.3d 152, 162-163 (2d Cir. 2020).
[85] Ex. F7.
[86] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[87] Ex. L, M.
[88] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[89] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[90] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).
[91] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[92] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[93] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[94] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[95] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[96] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[97] Ex EE33.
[98] Ex EE34.
[99] Ex. O.
[100] Moreover, the Student already knows how to use a laptop, Chromebook, and iPad, so even assuming the Service Provider Agency intended the AT for those devices, I do not find it necessary.
[101] Tr. 59 lines 6-25; 60 lines 1-20.
[103] Other than the relief set out in my Order, I find the Parent’s remaining contentions to be unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. As a result, any relief not specifically discussed in this decision is denied, and the Parent’s remaining claims, if any, not discussed herein are dismissed with prejudice.