New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 590821 - NYC: 241731

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (hereinafter referred to as “Parent”)

Hearing Dates: 5-9-23; 6-22-23; 7-26-23

Actual Record Close Date: 8-18-23

Hearing Officer: Steven P. Forbes

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 26, 2023

For the Student:

[REDACTED]

For the Department of Education:

[REDACTED]

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on or about November 3, 2022. In the DPC the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2019-2020, 2020-2021 and 2021-2022 school years for failure to provide an appropriate program. The Parent requested relief in the form of compensatory education and services, IEEs and transportation.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on January 9, 2023. A hearing regarding the Parent’s request for compensatory education and services was held on May 9, 2023, June 22, 2023, and July 26, 2023. The District did not present either evidence or witnesses.^[1] The Parent presented sixteen exhibits, which were admitted into evidence, and two witnesses, via affidavit.^[2] The District was given the opportunity to cross-examine the witnesses. The record closed on August 18, 2023. There were seven extensions of the compliance date. At the conclusion of the hearing, the District did not oppose the Parent’s request for relief except to the extent that it generically opposed the Parent’s requests for IEEs which the District maintained the Parent was not entitled to the extent that the Parent had not previously expressed disagreement with any evaluations conducted by the District. In addition, the District, which presented no witnesses or argument on the issue of FAPE has conceded that the District did not, in fact, afford the Student a FAPE for the 2019-2020, 2020-2021 and 2021-2022 school years.

FINDINGS OF FACT

The District, which did not appear in this matter until June 22, 2023, waived its right to present any evidence or witnesses in this matter and is therefore deemed to have conceded that it did not offer the Student a FAPE for any of the school years at issue. The District further elected not to submit a closing brief in this matter and thus left all of the Parent’s claims essentially unchallenged with the exception of the Parent’s claim for IEEs which the District objected to orally on the record on July 26, 2023 upon the ground that the Parent had never expressed disagreement with a particular evaluation conducted by the District.

As to the Parent’s request for an Adaptive Physical Education (APE) evaluation, the Parent made clear in her affidavit that she has been requesting that evaluation for years but that District has ignored that request. (P-P, page 2). As a result, the Student has not had the benefit of a physical education class in years. (Id.). The District cannot simultaneously deny the Parent’s (repeated) requests for an evaluation while simultaneously denying the Parent an IEE on the grounds that the Parent has failed to object to an evaluation the District refused to conduct. Thus, I find that the Parent is entitled to an independent APE.

As to the Parent’s request for a neuropsychological evaluation, the Parent expressed disagreement with the District’s psychological evaluation, both with the results and the means utilized to conduct the evaluation. (P-A; P-P). The Parent need do no more than that. Thus, I find that the Parent is entitled to an independent neuropsychological evaluation.

As to the Parent’s request for an assistive technology (AT) evaluation, the Parent admits that this issue did not arise until after the DPC was filed and the Parent’s witness expressed that there was a need for this. As such, while the Parent is not entitled to an independent AT evaluation, I do find it appropriate, under the circumstances presented by this case, to direct the District to conduct such an evaluation.

As to the Parent’s request for compensatory special instruction with ABA services, it is clear that the during the school years at issue the Student was entitled to 10 hours per week of home-based special instruction. Not only was this his stated mandate, but the Parent’s witness explained in extensive detail how and why these services were necessary to help the Student to become more independent, complete his homework assignments and cope with a heightened level of fatigue brought on by the learning the more complex subjects given both his diagnosis of ASD and his [REDACTED] impairment. Unfortunately, the Parent has encountered tremendous difficulty locating an ABA provider who is fluent in [REDACTED] and that has limited the amount of services the Student could receive over the course of the school years at issue. Thus, I find it appropriate to award the Student a bank of compensatory hours of compensatory SETSS/ABA services, (to be calculated by the District and more fully set forth below) with those compensatory services to be provided by a provider of the Parent’s choosing, who is fluent in or capable of working with the Student in [REDACTED], and who will be compensated by the District at a reasonable market rate.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see, Forest Grove v. T.A., 129 S. Ct. 2484[2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (finding that compensatory education is not a form of damages because the courts act in equity when remedying IDEA violations and must “do equity and …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, Bd. of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to The Student during home instruction); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA. See, Newington, supra.

Here, the District did not present any evidence or witnesses that demonstrated that they had provided the Student with the services to which she was entitled. The District has therefore conceded, for all intents and purposes, and I so find, that it denied the Student a FAPE over the course of the 2019-2020, 2020-2021, and 2021-2022 school years by failing to develop an appropriate IEP for the Student, by failing to recommend an appropriate program for the Student and/or by failing to implement their own IEP. It is similarly conceded that the Student was not provided with the level of services to which he was entitled under the IEP due to the Parent’s difficulties in locating a provider. Based on the evidence presented by the Parent, it is clear that the Student is entitled to compensatory services.

DECISION

Based on a review of the record and the details mentioned above, I find that the District failed provide FAPE to the Student for the 2019-2020, 2020-2021, and 2021-2022 school years.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

A) That the Student entitled to compensatory services to the extent that: 1) For every week between July 1, 2019, through the date of this decision, the Student is entitled to a bank of hours equal to the difference between 10 weekly hours of home-based 1:1 instruction and the number of instructional hours that he received on a 12-month, extended school year basis.

2) For every school day between March 15, 2020, and January 8, 2021, that the Student was provided remote instruction, rather than in-person instruction, the DOE will award a bank of 3 hours of 1:1 instruction per day.

3) For every school-day between March 15, 2020, and the date of this decision, the DOE will provide a bank of compensatory related services equal to the number of hours for which the Student was mandated and the hours that he received.

4) Within 30 days of the date of this order, the District will calculate the amounts described in paragraphs A. 1-3 of this Order and set up a compensatory bank of hours combining all the hours into one bank. Thereafter, the Student can use the bank for ABA, 1:1 instruction and/or tutoring, or related services, flexibly as per the Student’s needs. Said providers shall be providers of the Parent’s choosing and shall be compensated by the District at a reasonable market rate. There shall be no expiration date to the above hours based upon the difficulty in securing an appropriate provider and the scope of the Student’s needs.

B) The District shall fund the following independent evaluations by providers of the Parent’s choosing with said providers to be compensated by the District at a reasonable market rate: 1) Neuropsychological (by a provider with appropriate adaptive materials or capable of working with a student who is [REDACTED] impaired); and, 2) Adaptive Physical Education. Upon completion of those evaluations, the District shall reconvene the CSE, upon reasonable notice to the Parent, to consider the results of the aforementioned evaluations and to determine what, if any, modifications need to be made to the Student’s IEP.

C) The District will conduct an assistive technology evaluation within thirty (30) days of the date of this order. Said evaluation shall be conducted by a provider with expertise in evaluating AT solutions for [REDACTED] impaired individuals who are college-bound. Should the District fail to conduct said evaluation within thirty (30) days, the Parent may elect to obtain a private provider to conduct that evaluation with said evaluator to be compensated by the District at a reasonable market rate.

D) The Student is entitled to special education transportation.

SO ORDERED:

DATED: August 19, 2023

_Steven P. Forbes____

Steven P. Forbes

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. District Evidence List

None

Parent Evidence List

A. DPC

B. FOFD

C. Interim Order

D. Stipulation

E. IEP

F. Lette

G. [REDACTED] Application

H. [REDACTED] Application Supplement

I. DOE Psychoeducational Evaluation

J. Progress Report

K. DOE Psychological and Educational Assessment

L. Letter to Parent

M. Progress Report

N. Invoices

O. Affidavit - Provider

P. Affidavit - Parent

Footnotes

[1] The District first appeared in this matter on June 22, 2023.

[2] The list of exhibits is attached.