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FINDINGS OF FACT AND DECISION- Corrected
Case Number: 241131
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: N.Y.C. Dept. of Education
Home District: REDACTED
Service District: REDACTED
Date of Filing: 10/21/2022
Hearing Requested by: Parent
Hearing Date: 07/07/2023
Actual Record Closed Date: 08/15/2023
Date of Decision: 08/15/2023
Date of Distribution: 08/15/2023
Impartial Hearing Officer: Patricia Peña, Esq.
NAMES OF PERSONS WHO APPEARED ON 07/07/2023
For Student and Parent:
REDACTED
Law Offices of REDACTED
Witness for Parent REDACTED, Parent
For the Department of Education:
REDACTED, Esq.
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about 10/21/2022 by Parent, through counsel on behalf of Student against the New York City Department of Education (“DOE” or “District”). I was appointed as the IHO on 01/12/2023.
On 02/15/2023, a Pre-Hearing conference was held. Parties indicated that: (1) a resolution meeting was held resulting in a partial resolution agreement; (2) case concerned a denial of free appropriate public education (“FAPE”) for the 2020-2021, 2021-2022, and 2022-2023 school years; and (3) Parent seeks compensatory relief as a remedy for the denial of FAPE. Parties asked for and were granted an extension of the compliance date to allow DOE time to complete its investigation, provide Parent with prior IEPs and evaluations, and to explore the possibility of settlement.1 Subsequently, on or about 05/03/2023, Parent amended its DPC and another Pre-Hearing conference was held on 06/12/2023. Parent stated that a resolution meeting was not held following amendment of the DPC. A hearing date was scheduled. 2 A virtual due process hearing was held on 07/07/2023. REDACTED represented Parent and REDACTED represented DOE. DOE did not offer any documents or witness testimony into evidence and while not explicitly conceding a denial of FAPE, DOE waived opening and closing statements, essentially conceding a denial of FAPE. 3 Parent submitted exhibits A through P into evidence without objection and presented the testimony of one witness, the Parent.
JURISDICTION
1 See PHC transcript dated 02/15/2023. 2 See PHC transcript dated 06/12/2023. 3 See hearing transcript.
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
Student is a REDACTED child classified by the Committee on Special Education (“CSE”) as having a Speech or Language Impairment.[4] In its DPC, Parent alleges that Student exhibits deficits in attention and focus, articulation, fine motor skills, expressive and receptive language deficits, and sensory integration. 5 Student started a 3s program at SY school during for the 2020-2021 school year. Student was initially classified with a disability in April 2021 when the Committee on Pre School Special Education (“CPSE”) recommended the following program and services on a 10-month basis:
• Special Education Itinerant Teacher Services: Group of 2;[5] days a week; 2 hours • Speech/Language Therapy: Individually; 2 times per week; 30 minutes • Occupational Therapy: Individually; 2 times per week; 30 minutes [6] Parent contends that the CPSE failed to recommend summer services during the 2020-2021 resulting in a denial of FAPE for that school year.[7] Regarding the 2021-2022 school year, Parent alleges that the program and services offered by DOE were not adequate to support Student’s needs.[8] Although Parent alleges a denial of FAPE for the 2021-2022 school year its DPC, at the to offer Student summer services during the summer of 2021.[9] With respect to the 2022-2023 school year, Parent alleges that DOE stopped funding services from September to November of 2022. 10 As a result of these failures, Parent filed the instant matter. Parent outlined the relief requested follows: Summer 2021 • 60 hours of compensatory special education instruction (based on[10] hours of SEIT instruction mandated in the 04/07/2021 IEP times 6 weeks of summer program. • 6 hours of compensatory speech-language therapy (based on 1 hour per week of SLT services mandated in the 04/07/2021 IEP. • 6 hours of compensatory occupational therapy (based on 1 hour per week of SLT services mandated in the 04/07/2021 IEP. 2022-2023 School Year • 40 hours of compensatory occupational therapy (based on the 06/15/2023 IEP which mandated two 30 minutes per week times 40-week school year). • 31.75 hours of compensatory speech language therapy (based on the 06/15/2023 IEP and Student’s receipt of 8.25 hours of private SLT sessions during the 2022-2023 school year). • Reimbursement in the amount of $1,650 for 11 sessions of private speech language therapy between March and June 2023, at a rate of $150 for 45 minutes. [11] Following the filing of the DPC, a resolution meeting was held resulting in a signed resolution agreement between the parties for the 2022-2023 school year.[12] The agreement provides for the following program/services from 09/01/2022-06/30/2023: • SEIT: bank of 400 hours at a rate not to exceed $150 per hour • Speech and Language Therapy: Bank of 40 hours (Pending Provider) • Occupational Therapy: Bank of 40 hours (Pending Provider) [13]
ISSUE
The issue for determination is whether Student was denied a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.
With respect to the 2020-2021 and 2021-2022 school years, I find that Student was denied a FAPE and is therefore entitled to compensatory relief. With respect to the 2022-2023 school year, the claims asserted in the DPC were addressed in the 11/21/2022 resolution agreement and are therefore, dismissed with prejudice.
Although only portions of the evidence are referenced herein, I reviewed the testimony and documents in full.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
The Present Levels of Performance and Individual Needs of the 05/24/2022 IEP reference an educational assessment dated 03/10/2021 indicating that Student’s cognitive skills were within average range.[14] Student’s social-emotional and adaptive skills were below average and assessment showed that Student’s receptive and expressive skills were within developmentally appropriate limits, Student presented with articulation issues that affected his intelligibility. [16] Student’s fine motor and visual motor functioning were also within the poor range.[17] It is further noted that Student “reportedly shows significant improvement following the classroom routines; however, he needs repetition, as [Student] does not pay attention to teachers consistently. Although he improved his ability to remain focused for a more extended period, staying seated without fidgeting, the teacher said [Student] requires prompts during individual activities. Concerning [Student’s] social skills, he reportedly is a very friendly child and responds to peers' social cues. He improved his interactive play with peers. [Student] feeds himself with a fork as per the information concerning his self-help skills. He drinks from a cup, cleans up after himself after a meal, and is toilet trained fully.”[18] Student’s functional levels in reading and math were at Pre-Kindergarten levels. [19]
Parent testified that that Student has a lot of difficulty articulating and making certain sounds and while he’s made some progress, he still has some ways to go.[20] Student has difficulty focusing in the classroom and requires constant reminders about classroom routines as well as reminders to go to the bathroom.[21] Parent testified that Student received services over summer of 2022 because regressed a lot over the summer and summer breaks and so the teacher felt that Student could benefit from continued services over the summer.[22] Parent testified that DOE did
15 Id.
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. 25 A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 26 A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable Student to receive educational benefits. 27 In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 28 School districts are not required to "maximize" the potential of students with disabilities 29 but are required to provide
23
Tr. 20 24 NYS Educ. Law § 4404[1][c] 25 20 U.S.C. § 1400 [d] [1] [A] 26 34 C.F.R. § 300.13 27 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]. 28 Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]. 29 Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d at 132. "an IEP that is 'likely to produce progress, not regression,' and . . . affords Student with an opportunity greater than mere 'trivial advancement'." [30]
An appropriate remedy for a denial of FAPE can include an award of compensatory education.[31] The purpose of a compensatory education award is to place the student in the position he/she would have been in had the district complied with its obligation under the IDEA.[32] A court may, therefore “award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[33] Further, “whereas ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.”[34] A request for compensatory relief may be denied if there is not a sufficient a causal link in the record between any deprivation and Student’s current deficits. [35]
An award of compensatory education can be crafted following either a quantitative approach or a qualitative approach. The “quantitative” approach is based on the amount of time that comprised the FAPE deprivation.[36] The “qualitative” approach is based on a student’s needs and on the specific educational deficits that resulted from the FAPE deprivation. 37 This approach 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.” 39
The Second Circuit has not adopted a preferred approach and leaves the mechanics of structuring an award to the court’s discretion. 40 Irrespective of the approach taken in crafting the award, “the remedy must be ‘appropriate in light of the purpose of the Act.’” 41
ANALYSIS
2020-2021 and 2021-2022 School Years
Parent contends that DOE denied Student a FAPE for the 2020-2021 and 2021-2022 school years by failing to offer Student services during the summer of 2021. Student was initially classified as a student with a disability during the 2020-2021 school year, on 04/07/2021. Parent contends that Student’s initial classification in April 2021 coupled with the fact that Student ended up repeating 3K during the following school year, is evidence that Student should have received services during the summer of 2021. Student’s delays and lack of progress during the 04/07/21 IEP meeting should have been evident to the CPSE since Student repeated the 3K program at the recommendation of the school. Therefore, I find that Student should have received services during the summer of 2021 and order DOE to fund a bank of 60 hours of compensatory special education instruction, 6 hours of compensatory speech and language therapy and 6 hours of compensatory occupational therapy.
2022-2023 School Year
Parent contends that DOE stopped funding Student’s program from September 2022 to November 2022. As a result, Parent seeks a combination of compensatory relief and reimbursement the out-of-pocket expenses incurred in securing services for Student.[42] Parent’s claims arising out of the 2022-2023 school year are denied. Parent signed a resolution agreement on 11/21/2022 for a bank of hours for SEIT services, speech and language therapy and occupational therapy. The resolution agreement states in part “this agreement is legally binding and is enforceable in any State court of competent jurisdiction or in a district court of the United States.”[43] Parent’s counsel contends that the agreement is not enforceable with respect to the speech and language and occupational therapy provisions because at the time, Parent did not have a provider.[44] Parent further contends that even with respect to speech and language and occupational therapy provisions, DOE never provided those services even after subsequently signing a pendency agreement to provide RSAs. [45]
The Commissioner’s Regulations state that a resolution agreement “shall be enforceable in any State court of competent jurisdiction or in a district court of the United States. A party may void such agreement within three business days of the agreement’s execution.”[46] Whether the agreement is unenforceable because it lacked the necessary terms to make it an enforceable agreement is immaterial. Once executed, the agreement is binding on the parties and questions regarding enforcement of its terms or regarding interpretation of that agreement, are outside of my purview and jurisdiction and pursuant to the regulations must be brought before a State court of competent jurisdiction or district court. Therefore, based on the foregoing, Parent’s claims pertaining to the 2022-2023 school year are dismissed with prejudice.
Attorney Fees
Parent also requested attorneys’ fees and expenses as part of its relief 47 The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. [48] Only a court can determine if a party is entitled to attorneys’ fees, and I would be exceeding the scope of my authority by determining that Parent is entitled to costs. Therefore, Parent’s request for attorneys’ fees is denied.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, I HEREBY FIND: (1) DOE failed to provide Student with a FAPE for the 2020-2021 and 2021-2022 school years.
(2) Parent’s claims arising out of the 2022-2023 school years are dismissed with prejudice.
(3) Student is entitled to compensatory educational services to make up for the denial of FAPE for the 2020-2021 school year. IT IS THEREFORE ORDERED, DOE shall fund compensatory services as follows: 47 Parent’s Exhibit C-06 (1) 60 hours of hours of compensatory special education instruction to be provided by a qualified provider of Parent’s choosing at a reasonable market rate, to be determined by DOE’s implementation unit based on the rate paid to similar providers in the last 6 months.
(2) 6 hours of compensatory speech-language therapy to be provided by a qualified provider of Parent’s choosing at a reasonable market rate, to be determined by DOE’s implementation unit based on the rate paid to similar providers in the last 6 months.
(3) 6 hours of compensatory occupational therapy to be provided by a qualified provider of Parent’s choosing at a reasonable market rate, to be determined by DOE’s implementation unit based on the rate paid to similar providers in the last 6 months.
(4) All compensatory award ordered pursuant to this order shall expired within 2 years of the date of this order.
SO ORDERED.
Dated: 08/15/2023
Patricia Peña, Esq. (signed electronically)
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, 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
None
PARENT EVIDENCE
A. Exhibit # Description and Date Pages Impartial Hearing Request; October 21, 2022 7 pages
B. Amended Impartial Hearing Request; May 3, 2023 8 pages
C. Educational Evaluation Report; May 9, 2022 3 pages
D. Classroom Observation; May 17, 2022 2 pages
E. CPSE Evaluation Reports; March 23, 2021 39 pages
F. T5 Speech Note; undated 2 pages
G. Developmental Assessment; April 27, 2023 3 pages
H. REDACTED Speech Note; undated 1 page
I. CPSE IEP; April 2021 21 pages
J. CPSE IEP; June 2022 26 pages
K. CSE (T5) IEP; September 2022 17 pages
L. Partial Resolution Agreement; November 21, 2022 2 pages
M. Pendency Implementation Form; March 27, 2023 2 pages
N. REDACTED Invoices; March-June 2023 6 pages
O. Proofs of Payment to REDACTED; April-June 2023 8 pages
P. Gmail thread re: RSAs; spring 2023 4 pages
IHO EXHIBITS
Footnotes
[4] Parent’s K
[5] Parent’s B-2
[6] Parent’s I-19
[7] Tr. 11; Parent’s A-3
[8] Parent’s A-4 hearing, the only evidence/argument presented regarding the denial of FAPE was DOE’s failure
[9] Tr. 11
[10] Tr. 12
[11] IHO 1, Page 3
[12] Parent’s L
[13] Id.
[14] Parent’s K-1 his communication and motor skills fell in the poor range. 15 Although a speech and language
[16] Id.
[17] Id.
[18] Id. at K1- K2
[19] Id. at K-15
[20] Tr. 18
[21] Tr. 18
[22] Tr. 19 not offer Student services for the summer of 2021 despite the fact that he repeated the 3s program for the 2021-2022 school year. 23 Legal Framework Burden School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. 24 compensatory education equal to the period of deprivation]. 37 See Reid, 401 F.3d 516
[30] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citation omitted]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 254; P v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[31] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014) citing Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 (2d Cir. 2008). See also, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (finding that the “IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education”).
[32] See Newington, 546 F.ed at 123; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]
[33] Doe v. East Lyme, 790 F.3d at 454 [2nd Cir. 2015]
[34] Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005)
[35] See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C.Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that Student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (Parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by Student in crafting an award, regardless of the substantive appropriateness of the IEP).
[36] M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to requires a “fact-specific inquiry” 38 and “[t]he ultimate award of compensatory education must be 38 Id. at 524 39 Id. 40 Doe v. East Lyme, 790 F.3d at 457 41 Doe. v. East Lyme, 790 F.3d at 457 citing to Burlington, 471 U.S. at 369.
[42] Tr. 12
[43] Parent’s L-2
[44] Tr. 47-49
[45] Tr. 48
[46] 8 N.Y.C.R.R.§200.5(J)(2)(v)
[48] 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).