New York City Department of Education, Impartial Hearing Decision

Case Number: 590768 – NYC: 241678

FINDINGS OF FACT AND DECISION

Student’s Name REDACTED

Date of Birth REDACTED

District REDACTED

Hearing Request By Parent

Date of Hearing March 28, 2023

May 3, 2023

Record Close May 18, 2023

Hearing Officer Sharyn Finkelstein

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 28, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Center Director REDACTED

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 3, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Center Director REDACTED

For the Department of Education:

REDACTED Attorney

I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (Student) for the 2020-2021, 2021-2021, and 2022-2023 school years.

Parties moved to extend the compliance date on several occasions in light of possible settlement and for witness availability. In considering the requests, I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution in this matter. Accordingly, the requests for extensions of the compliance dates were granted.

Attached to the record are lists of persons who appeared and evidence submitted into the record. The record was closed on May 18, 2023.

BACKGROUND

Student had attended REDACTED in the REDACTED during REDACTED grade. Students were fifty percent remote because of the pandemic. Parent realized Student was behind in reading and could not do her classwork on her own. (Tr. 213)

In February 2021, Student received a promotion in doubt letter. (Exhibit H) Student ended up being promoted to next grade. (Tr. 114) Student fell even more behind. (Tr 114)

During the spring of 2021, Parent referred Student for an IEP. CSE determined Student was not eligible. (Tr. 113)

During REDACTED grade Student attended REDACTED. Student struggled throughout the entire year. Her promotion was in doubt. She attended summer school at the conclusion of REDACTED grade. (Tr. 114)

In May 2022, DOE classified Student and recommended an REDACTED program with speech and language therapy twice a week.

During fifth grade, Student attends REDACTED. Student is being held back. (Tr. 111) Student cannot read. Student has difficulty with reading, writing and math. (Tr. 112) Student did not receive any speech during fifth grade. REDACTED does not have speech therapy and Parent received a letter to outsource. Parent made attempts to contact providers without success. (Tr 117)

Parent brought Student to REDACTED for testing.

Parent filed a due process complaint to obtain compensatory services for 2020-2021, 2021-2022 and 2022-2023 school years and metro cards to attend REDACTED. Parent also requested speech therapy for missed sessions. Parent also requested an independent neuropsychological evaluation. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED. . They did not put on any witnesses or submit any evidence. They cross examined Parent’s witnesses. It is their position that the Student is not entitled to compensatory services or an independent evaluation. They argue that the 2021-2022 school year should be excluded because request for evaluations came after the school year. They request that all relief be denied in its entirety.

PARENT’S CASE

The Parent was represented by their attorney REDACTED. It is their position that the DOE failed to provide a FAPE to Student for the 2020-2021, 2021-2022 and 2022-2023 school years. It is their position that Student is entitled to compensatory services for DOE’s failures to provide FAPE. They maintain that Student requires and is entitled to an independent neuropsychological evaluation.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225,). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).

DOE argues that there are no Child Find allegations in the complaint. I find no basis for this claim. The complaint specifically alleges DOE’s failure to address Student’s struggles in school beginning in the 2020-2021 school year. DOE argues that the complaint begins with the parent’s referral to the CSE . They point out that parent’s consent for evaluations came in March 2021. It is their position that the 2020-2021 school year should be excluded from any award of damages. During the 2020-2021 school year, Student’s promotion was in doubt. (Exhibit H) I find evidence establishes that Student has struggled during all the school years at issue. I find that the district had an affirmative obligation and should have evaluated the Student prior to the Parent’s referral. I find DOE failed to meet their Child Find obligations.

The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)(B).

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046;. The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

As discussed above, DOE failed to meet their Child Find obligations which is a denial of FAPE. DOE did not put on any witnesses to defend the IEP that they finally developed for the 2022-2023 school year. Parent in the due process complaint enumerates DOEs failure to provide an appropriate program. They allege that Committee on Special Education (CSE) failed to address Student’s lack of progress over the years and did not provide sufficient supports to enable Student to make progress. I find DOE failed to provide Student with a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.

COMPENSATORY SERVICES

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. See SRO 08-052, at pp. 17-18; see also Student

X. v. N.Y.C. Dep't of Educ., 2008 VT 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (Wagner v. Canasota, 979 F. Supp. 147 [N.D.N.Y. 1997])

A hearing officer may award compensatory education relief in the form of supplemental special education or related services where there has been a denial of FAPE. (see P. v. Newington Bd. Of Educ., 546 F.3d 111.123 [2d Cir. 2008].

A compensatory education award can be crafted as either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation) Under the qualitative approach, the focus is on a student’s needs and is based on the specific education deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits)

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. See SRO 08-052, at pp. 17-18; see also Student X. v. N.Y.C. Dep't of Educ., 2008 VT 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one).

Given the circumstances, the only remaining issue for the hearing officer is the matter or relief. The DOE’s burden of proof and persuasive applies to every contested issue in the hearing, including the appropriateness of compensatory relief.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (Wagner v. Canasota, 979 F. Supp. 147 [N.D.N.Y. 1997])

With respect to the number of hours a one-to one calculation is not required and most courts seek to ascertain the child’s needs at the time the relief is sought. See, e.g., Reid ex rel. Redi V. District of Columbia, 401 F.3d 516 (C.AD.C. 2005).

DOE is not required to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

DOE argues that Student is not entitled to compensatory education because they had attended a private school. Student attends REDACTED which is a New York charter School and considered a public school under New York State Law.

REDACTED who is responsible for oversight of all the operations at REDACTED provided testimony. They provide supplemental instruction in basic academic skills and subject tutoring for students in kindergarten through twelfth grade. (Tr. 26-27)

Student had testing in November 2022 over the course of three and a half hours. (Tr 73). (Exhibit M) Tests are standardized tests administered to all students entering REDACTED. (Tr.

71) They administer the same tests regardless of specific learning profiles in order to assess their skills in each of the areas. (Tr. 72)

Student functioned well below her grade level. Student was in REDACTED grade at the time of the testing. (Tr. 28) The goal was for Student to be able to function independently as a REDACTED grader. (Tr 74) They wanted to establish the highest level of functioning that Student had reached in terms of independent functioning and to identify any gaps in her academic skill that prevent her from meeting expectations in school. They then develop recommendations to address any gaps. (Tr. 29)

Test results were summarized. (Exhibit K)

They administered the Slosson Visual-Motor Performance test where Student performed relatively well.

They administered Slossan Oral Reading Test (Exhibit M) which assess Student’s sight word recognition. Student performed well below expectations. Witness explained that they would have to begin at second grade level. (Tr. 32) She explained that the test suggests that there were gaps in Student’s phonics understanding that need to be remediated prior to her being able to successfully read harder texts. (Tr. 34)

They tested Student’s auditory perception. The test placed her at a REDACTED - grade level. She explained that it suggests Student’s auditory perception is a contributing factor to her struggles with English language arts. Her performance was lower in this area than in other areas. (Tr 35)

They administered the Burns and Roe informal Reading Inventory to assess her reading fluency and comprehension. It placed Student on a REDACTED - grade level. (Tr. 36)

She explained Student’s performance on the Informal Reading inventory suggest that they cannot start higher than second grade level. Student’s comprehension was poor at the REDACTED-grade level. (Tr 38)

They administered a writing sample. She explained that results would be within the acceptable range for a second grader. There was no paragraph structure.

Student’s grade equivalency on her academic evaluation was consistent with other tests. Witness concluded that REDACTED grade is the right place to being to work with Student. (Tr. 41)

Testing revealed that in math and in reading Students current independent function is at REDACTED grade. (Tr 43)

Witness explained that the goal would be to bring Student to independent function at REDACTED grade level. (Tr. 43) They created a document based on testing and errors. She selected specific pieces of curriculum to remediate the gaps. (Exhibit L)

They created a document that individually prescribed the needed hours for Student. (Exhibit L ) She described how they determined the hours for different areas. Each student receives a unique document with prescribed hours which is individualized to their needs based on the testing.

Witness concluded Student needed 643 hours of tutoring. (Tr. 53) The rate for services is $110 an hour. The assessment is $295 and there is a one -time registration fee of $100 (Tr. 53)

DOE asserts that REDACTED’s definition of mastery cannot be transferred to anything in the New York Curriculum. Parent Witness agreed that mastery constitutes 100 percent on an examination. (Tr. 89) Mastery requires sufficient fluency with the material being tested to indicate no additional instruction is required. (Tr. 80-81) DOE opined that this is not objective criteria. (Tr. 86)

In response to my question, Parent Witness opined that had DOE provided a FAPE to Student, she would have mastered all the subjects. Witness was unaware of how Student was classified. I find that even if REDACTED and the recent IEP place Student at different levels, evidence establishes that Student is well below grade level. Student’s recent IEP indicates Student’s reading instructional level is third grade and math instructional functional level is at REDACTED grade. Witness characterized her independent reading level and math function to be REDACTED grade. (Tr. 104-105) IEP indicates that Student is below grade level in reading and in writing. (Exhibit B) I find that evidence does not establish that Student would have necessarily mastered all areas had DOE provided a FAPE. I find that Parent Witness recommended the number of hours to maximize Student’s potential which is beyond what DOE is responsible to provide. DOE points out that at the time of the testing Student was only two months into grade five. (Tr. 90) I find it would be unrealistic to expect her to be at an independent fifth grade level even had the DOE provided a FAPE.

I find that any requested services must be balanced with other needs of Student. Parent testified that if awarded, she would follow Huntington’s recommendation of ten hours per week.

Parent’s Witness opined that Student is allowed to attend a maximum of ten hours a week during the school year and twenty hours a week during the summer. The minimum allowable level is four hours a week which would take Student three years to complete. She opined that was not in Student’s best interest. (Tr. 91) I find that any awarded hours should be used within two years.

In cross-examination. Parent described Student’s after school routine. She receives a lot of homework which takes between two and a half to three hours per night. At seven they have dinner and bedtime is about 8:30PM in order for Student to get up at six. Student would go from school to Huntington and then home for homework. I find Student would have insufficient down time and this is an unrealistic expectation and unduly burdensome for a young Student. Student, in all likelihood. will be attending a new school next year and any change, even a positive change, can be stressful for a student.

I find Student is entitled to compensatory services. I find the requested number of tutoring hours is excessive. I find Student is entitled to 500 hours of compensatory services.

SPEECH AND LANGUAGE THERAPY

Parent looked for speech providers but they would not take the voucher from the DOE. It is the DOE’s burden to locate a provider. There is no evidence that DOE located a provider. I find Student is entitled to speech and language therapy to make up for missed sessions.

Student was recommended to receive speech and language therapy on their current IEP (Exhibit B) I find Student is entitled to 80 half hour sessions or 40 hours of one- to one speech-language therapy.

EVALUATIONS

A parent has the right to request an independent educational evaluation at public expense if the parent disagrees with the school district’s evaluation. 34 CFR 300.502(b)(1): 8 NYCRR 200.5(g).

If a parent requests an IEE at public expense, the school district must without any unnecessary delay, either (1) initiate a hearing under 34 CFR 300.507 to show that its evaluation is appropriate, or (2) ensure that an IEE is provided at public expense.

New York State regulations reflect the federal regulations: “If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the Parent does not meet the school district criteria.” 8 NYCRR 200.5(g)(1)(iv).

Parent requested an independent neuropsychological evaluation in their due process request. They disagreed with DOE’s evaluation of April 2022 DOE failed to respond and did not defend any evaluation.

Parent testified that they are up for evaluations in May. (Tr. 125) If DOE has conducted a psychoeducational evaluation as part of the evaluations, I find no grounds to award an additional neuropsychological evaluation.

In summary, I find that the DOE failed to provide a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school year. I find Student is entitled to compensatory services in the form of tutoring and Speech and Language therapy. I find an independent evaluation is only warranted if DOE fails to conduct a psychoeducational evaluation. I find Parent is entitled to metro cards for her and Student to and from REDACTED. I find Parent is entitled to direct funding for the registration and testing fee at REDACTED.

ORDER

DOE shall fund a bank of 500 hours of compensatory education to Student not to exceed the rate of $110 an hour, upon evidence of services and invoice. The hours shall expire two years from the date of the decision.

DOE shall directly fund REDACTED for the one-time registration fee of $100.00 and assessment fee of $295.

DOE shall provide metro cards to Parent and Student to go to and from REDACTED.

DOE shall fund a bank of 80 sessions equal to 40 hours of Speech and Language therapy by provider of Parent’s choosing upon evidence of services and invoice. The hours shall expire two years from the date of the decision.

DOE shall fund an independent neuropsychological evaluation at market rate if they have not arranged for a psychoeducational evaluation to be administered prior to the end of June.

CSE shall reconvene within 30 days of all evaluations to develop an appropriate IEP.

Sharyn Finkelstein Esq. May 29, 2023

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.

EVIDENCE ENTERED INTO THE RECORD

DEPARTMENT OF EDDUCATION

No Evidence

PARENT

A. Impartial Hearing request 11/7/22 (6 pages)

B. IEP 5/24/22 (23 pages)

C Consent for evaluations 13/25/21 1

E. Report card 2021/2022 (2 pages)

F. DOE teacher evaluation 4/16/21 (19 pages)

G. DOE student report card 2020/2021 (1 page)

H. Promotion in doubt letter 2/21 (1 page)

I i-Ready diagnostic results l, 2/11/21 1

J i-Ready diagnostic results 2, 2/11/21 1

` K REDACTED student

Academic evaluation results 11/2/22 4

L REDACTED Individualized

Prescribed hours 11/2/22 4

M REDACTED student

Test results 11/2/22 54