NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 590823 NYC: 241733
FINDINGS OF FACT AND DECISION
Student's Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 01/12/2023
01/19/2023
01/30/2023
02/02/2023 Pendency Hearing
02/21/2023 Status Conference
03/17/2023
04/17/2023
05/15/2023
06/02/2023
06/16/2023
07/12/2023
Actual Record Close Date: 07/14/2023
Decision Date: 07/17/2023
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/12/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/19/2023
Parties appeared via phone and/or teleconference
For the Student:
None
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON 01/30/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/02/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/21/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
None
NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/17/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/17/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/15/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/02/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/16/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
[REDACTED], SEIT Provider
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/12/2023
Parties appeared via phone and/or teleconference
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
DOCUMENTATION ENTERED INTO THE RECORD
REDACTED
INTRODUCTION
On 01/05/2023 I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1).
Hearing commenced, on 01/12/2023, to allow the DOE an opportunity to defend against the allegations contained in the DPC. (Ex A) The DOE did not appear, or otherwise defend against the allegations contained, in the DPC. (Ex A)
Hearing was set, for 01/17/2023, to address Parent request for independent educational evaluations (IEEs), as requested via DPC. (Ex A 15) This Hearing was adjourned.
Hearing was set incorrectly for 01/19/2023, and ultimately Hearing took place, on 01/30/2023.
Interim Order was issued, on 01/30/2023, which included:
1. The DOE failed to respond to the Parent request for Independent Educational Evaluations, in a timely manner.
2. The DOE shall immediately authorize and fund the following Independent Educational Evaluations:
o Neuropsychological evaluation; o Occupational therapy evaluation; and o Speech and Language evaluation.
(IHO Ex II 12)
Status Conference was held, on 02/21/2023, to review the status of the Ordered evaluations.
(IHO Ex II)
Hearing continued, on 03/17/2023, and Parent Attorney advised the Evaluations were still underway. (T 54)
Hearing continued, on 04/17/2023, and again on 05/15/2023. Evaluations were still underway.
At Hearing, of 06/02/2023 evidence was reviewed and Parent Attorney clarified details regarding the sought after relief. (T 98-101)
Parent alleges a failure of the DOE to offer the Student a Free Appropriate Public Education (FAPE) for the 20-21, 21-22 and 22-23 school years. (Ex A 1)
Allegations include a failure of the DOE to properly evaluate the Student:
- Both the Parent and the universal pre-school (UPK) school staff agreed it made sense for the Student to be further evaluated as they were all concerned that the Student’s deficits were not being fully addressed by the services recommended in the November 2021 IEP (Ex A 4); - For all the evaluations and reevaluations conducted, the DOE failed to follow the procedural requirements of the IDEA; - Among other things, the DOE failed to obtain informed consent, issue Prior Written Notice, hold a meeting or call with the Parent and IEP team to discuss existing assessments and what, if any, additional assessments were necessary; - The DOE did not adequately evaluate the Student in every area of suspected disability; - The DOE failed to conduct an appropriate reevaluation before making a significant change in the Student’s placement and program as part of the Turning Five; - Among other things, the DOE failed to failed conduct a neuropsychological evaluation and/a diagnostic evaluation with an expert in the child’s suspected disability, a behavior assessment, an assessment of the Student’s visual processing, an auditory processing assessment and an assistive technology assessment; - Further, the DOE did not assess the Student to ascertain the extent to which the Student required Extended School Year services; - The DOE’s evaluators are not permitted to diagnose students or make recommendations and, as such, fail, as here, to adequately identify a child’s needs for special education and related services; and - The Parents disagree with the evaluations and reevaluations conducted. (Ex A 8)
The Parent was able to recently obtain a Student evaluation independently: o Visual Perception Evaluation 01/10/2023 (Ex C) o Patient History Explanation Letter re Vision Health & Therapy Service Recommendation 01/03/2021 (Ex D)
Appended to the record are lists of persons in attendance and the documents received in evidence.
Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate IEP and placement for the 20-21, 21-22 and 22-23 school years. (Ex A 1)
Parent seeks a variety of forms of relief to remedy the alleged failure, including:
- A finding that FAPE has been denied the Student for the 20-20, 21-22 and 22-
23 school years; - The DOE shall fund (or at the Parents’ election, provide) compensatory education for the denial of FAPE to restore the Student to the position that the Student would have been in had FAPE not been denied, as well as for any failure to implement pendency. Appropriate compensatory education should and/or may include a bank of 1:1 instruction; additional SEIT; 1:1 instruction with a research-based strategy, such as Applied Behavior Analysis; executive functioning support, behavior therapy, services to improve executive functioning, AT, AT training, services to address anxiety, vision services, related services (such as occupational therapy, physical therapy, speech therapy, counseling, social skills training) as well as any other services recommended as a result of independent evaluations.
- The DOE should fund an increase in 1:1 instruction and related services, so that the Parent can use their insurance-funded ABA after school, as appropriate.
- Any services ordered should be delivered by providers of the Parents’ choice for “enhanced market rates” that are necessary to ensure that the Student works with appropriate providers and consistent with the rates paid by the DOE’s Impartial Hearing Implementation Unit to the providers pursuant to hearing orders.
- The DOE should reimburse the Parents for any out-of-pocket expenses relating to the Student’s special education needs (if any) including but not limited to payment for transportation, tuition, ABA, co-payments, deductibles, and Floortime therapy, evaluations, and any services that they purchase during the SYs at Issue and the pendency of this hearing. (Ex A 15)
Parent Attorney Closing Brief outlined the Parent’s position and set forth the relief sought as: (a) compensatory education; (b) additional independent evaluations (“IEEs”); and (c) reimbursement of out-of-pocket costs, including tuition. (IHO Ex V 1)
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “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, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
THE POSITION OF EACH PARTY
The DOE did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 20-20, 21-22 and 22-23 school years. (T 22)
The DOE argues the Student has been offered a FAPE for the school years in question; and the UP is not able to provide a FAPE to the Student. (T 151)
Parent Attorney outlined some aspects of the Parent’s case, and the related sought after relief:
“So the Parent first, in part, would like to establish that the student's program should be one-to-one SEIT, and in tandem, that the student is entitled to compensatory education in the amount of the hours indicated in the report based upon the fact that she has not received that program for this school year in question and the prior school years as well.” (T 143)
Parent Attorney argues that the Student’s appropriate program includes a one-to-one SEIT; and therefore the Student is entitled to compensatory services for the years the Student did not receive one-on-one SEIT services. (T 144) “Parent would argue that the use of the compensatory hours be afforded to the Parent at a bank, and which she can use at her discretion based upon the scheduling of herself, the child, and any provider that they identify, and it's not solely limited to services directly after school—” (T 144-145) At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:
[REDACTED], SEIT Provider Student’s Special Education Itinerant Teacher (SEIT), provided Testimony that included:
- A review of her qualifications, including being employed as a SEIT (T 119-122); - A SEIT is described as one that can: “…work with preschool children ages three to five, when they age out of Early Intervention, before they age into CSE services. So it's a critical time because there are so many milestones that can be reached…We generally push-in to the class and work on socialemotional, fine motor, expressive language, receptive language, and academic goals with preschoolers.” (T 122); - Services are provided one-on-one (T 122); - Witness provided services to the Student for the 22-23 school year, via pendency, for four hours weekly, in the classroom (T 122-123); - A review of a typical school day, for the Student at the UP (T 124-125); - Student is receptive to the SEIT services, and services have been successful (T 125-126); - When the SEIT services are not provided the Student needs one-on-one help for various activities, including transitioning, time management skills, and executive functioning (T 125-127); and - Witness believes the Student should receive full day one-to-one SEIT support (T 128).
[REDACTED], Parent
Student’s Parent provide Testimony that included:
- During the 22-23 school year a request was made, in February of 2023, to the DOE, for a Physical Therapy (PT) evaluation (T 130); - Parent took the Student for several evaluations (T 131); - Agreement with recommendations contained in the OT, SLT evaluations, and neuropsychological evaluation (T 131-132, Ex Q, S & U); - Costs were incurred relating to Student’s Vision Therapy evaluation and services (T 132-133); - Student vision therapy sessions cost $[REDACTED] per session, and services have been paid for over time (T 133); - Student UP Tuition was paid, as indicated in Exhibit Z (T 133-134); - Student is described as having challenges with: executive functioning, ADHD, executive functioning, focusing, and time management (T 134-135); - Referring to the Student need for SEIT services: “…she needs that support to be able to function and navigate more independently in the classroom. So these are the challenges that arise throughout the day…in terms of whether it's directly related to the academics, and also, with peers, social time, even playing time, the fine motor, how the vision plays in…There are so many angles here, where I do feel that her recommendation for the one-to-one support would be really beneficial and important for her. And then, you know, in addition, also, let's say carrying out…the 12-month school year, I do feel that that would also be helpful for whatever we're able to get.” (T 135); - The Student’s 22-23 IEP was not sufficient (Ex J); - Witness believes the goals were “needed” but the of support was not sufficient (T 136); - Witness believes the recommended 22-23 program did not provide enough support in the classroom (T 137-138); - Student is receiving recommended related services, in school (T 148-149); and - The Parent did not provide the Visual Perception Evaluation to the DOE (T 150, Ex K).
A Impartial Hearing Request/Due Process Complaint (DPC) 09/09/2022
Details allegations and sought after relief, alleging the DOE has denied the Student a FAPE, for several years.
B CPSE Evaluations: Preschool Student Evaluation Summary Report, Social History, Psychological Evaluation, Educational Evaluation, Speech and Language Evaluation, Occupational Therapy Evaluation & Physical Therapy
Evaluation 03/2020 to 08//2020
Evaluations detail areas of Student special education need and recommend various services:
- Preschool Student Evaluation Summary Report: Delays include: Cognitive, Social Emotional, Physical, and Language and Communicative (Ex B 2-4); - Social History: Parent concerns are noted related to Student development (Ex B 6-9); - Psychological Evaluation: Confirms areas of Student delay and recommend further evaluation (Ex B 15-16); - Educational Evaluation: Confirms areas of Student delay, but makes no recommendation (Ex B 17-23); - Speech and Language Evaluation: Identifies areas of Student weakness, but make no recommendation (Ex B 24-28); - Occupational Therapy Evaluation: Identifies areas of Student weakness, and makes recommendations for Parents (Ex B 29-34); - Physical Therapy Evaluation: Identifies areas of Student weakness, and makes recommendations for Parents (Ex B 35-39).
C Individualized Education Program (IEP) 11/05/2020
IEP, at the time the Student was almost [REDACTED], confirms Student as one entitled to special education services. (Ex C 1 & 15)
IEP includes:
- Recommendation of SEIT for six half hour sessions weekly, and two individual, 30 minute sessions weekly of: Speech Language Therapy (SLT), Physical Therapy (PT) and Occupational Therapy (OT) (Ex C 1): - Reflect generally Average levels of performance in areas of intelligence and Speech, with delays in areas related to OT and PT (Ex C 3-4 & 7); - Student diagnosis of [REDACTED] syndrome (Ex C 4); and - Goals related to SLT, OT and PT (Ex C 9-11).
The IEP includes noting Parent concerns regarding Student’s vision as related to fine motor difficulties. (Ex C 7)
The IEP does include fine motor goals, to improve hand-eye coordination. (Ex C 9-10)
D Patient History Explanation Letter re Vision Health & Therapy Service
Recommendation 01/03/2021
Details Student REDACTED, and that the Student would benefit from vision therapy services.
E Email to [REDACTED] re Ophthalmologist Letter for Vision Services 01/06/2021
Parent provides Doctor Letter (Ex D) to the DOE.
F Committee on PreSchool Special Education (CPSE) (IEP) 11/24/2021
IEP, at the time the Student was [REDACTED], confirms Student as one entitled to special education services. (Ex F 1 & 14)
IEP includes: - Recommendation of SEIT for four hourly sessions weekly, and two individual, 30 minute sessions weekly of: Speech Language Therapy (SLT), Physical Therapy (PT) and three individual 30 minute weekly sessions of Occupational Therapy (OT) (Ex F 1): - Notes Student needs prompting and repetition, and has issues related to communication, social, and physical development (Ex F 5-6); and - Goals related to socialization, SLT, OT and PT (Ex F 8-14).
G DOE Psychoeducational Evaluation 03/01/2022
Confirms Student diagnosis of [REDACTED] Syndrome, “a genetic disorder that that involves unusual facial characteristics, short stature, heart defects, and possible developmental delays.” (Ex G 7)
Testing includes generally average scores in areas of intelligence, verbal comprehension and academic skills. (Ex G 7-8)
Student is noted to continue to “require a lot of support in order to follow teacher directions, to produce clear verbal responses to questions and during talking with peers and teachers, to engage in appropriate play skills with peers, and to perform more abstract tasks such as sequencing events, telling a story, identifying directions and positions, use of objects, and similarities and differences.” (Ex G 8)
Student also: requires assistance with fine motor tasks within the classroom, has inconsistent attention span during circle time activities, engages in task avoidance behaviors at times when tasks are more difficult, has difficulties transitioning at times from a preferred activity to a less preferred activity, needs support with activities of daily living, and occasionally needed some support with toileting and with dressing/undressing. (Ex G 8)
H DOE Classroom Observation 04/27/2022
Includes that Student: needed redirection, had trouble opening a zip-loc bag, needs an adult prompts (Ex H 1); made great progress but continued to have difficulties in areas including transitioning and task avoidance(Ex H 2)., Student teacher has concerns with Student “being able to take on the work presented next year without continued services.” (Ex H 2)
I [REDACTED] Early Childhood Center Registration 03/21/2022
Student registration for UP Kindergarten, for the 22-23 school year.
Tuition set forth as: $[REDACTED], $[REDACTED] Registration Fee and $[REDACTED] for School Supplies. (Ex I 2)
Parent obligated to Contract via signature. (Ex I 3)
Contract also includes a Scholarship Contribution of $[REDACTED] which does not appear to be related directly to Student services. (Ex I2 & 5) J IEP 05/18/2022
IEP, at the time the Student was [REDACTED], confirms Student as one entitled to special education services. (Ex J 1)
IEP includes: - Average to Low Average Cognitive Functioning, and Average to Above Average Academic Functioning (Ex J 1-2); - Recommendation of SEIT for four hourly sessions weekly, and two individual, 30 minute sessions weekly of: Speech Language Therapy (SLT), Physical Therapy (PT) and three individual 30 minute weekly sessions of Occupational Therapy (OT) (Ex G 1): - Notes Student needs prompting and repetition, and has issues related to communication, social, and physical development (Ex G 5-6); and - Goals related to socialization, SLT, OT and PT (Ex G 8-14).
K Visual Perception Evaluation; [REDACTED] 01/10/2023
Details Student Ophthalmological issues and notes Student needs to attend weekly Vision Therapy, at the Doctor’s office, and lists several classroom accommodations along with a recommendation to address oculomotor tracking via OT. (Ex K 3-4)
L Proof of Payment to [REDACTED] 1/10/2023-1/19/2023-/06/02/2023
Parent provides proof of various payments to [REDACTED].
M Proof of Payment to [REDACTED] 1/26/2023-1/31/2023-2/09/2023
Parent provides proof of various payments to [REDACTED].
N [REDACTED] email RE: requesting individual PT evaluation 02/06/2023
Parent raises concerns regarding Student PT, and seeks independent evaluation.
O Proof of Payment to [REDACTED] 2/16/2023-2/23/2023-3/02/2023-3/09/2023-03/16/2023
Parent provides proof of various payments to [REDACTED]. P [REDACTED] Transition Checklist- Kindergarten 02/21/2023
Student Kindergarten Report details: consistent Academic skills (Ex P 1-2), consistent/emerging Behavior/Social skills (Ex 2-3), Successful Learning Modifications (Ex P 3), Successful Behavioral Modifications (Ex P 4), and Classroom Structure Accommodations (Ex P 4).
Notably, Classroom Structure Accommodations include Preferential Seating, as recommended within the Vision Evaluation. (Ex P 4 & K 3)
Recommendation is made for Student to receive 1:1 individual ABA/SEIT. (Ex P 5)
Recommendation is made, for the following year (22-23), for Student to receive: continued vision therapy and 1:1 ABA/SEIT support. (Ex P 5)
Q [REDACTED] Speech Services Occupational Therapy Evaluation 03/16/2023
Details Student challenges and recommends 3, thirty minute, OT sessions weekly. (Ex Q 17-19)
R Proof of Payment to [REDACTED] 03/23/2023-03/30/2023
Parent provides proof of various payments to [REDACTED].
S [REDACTED] Speech Services Speech and Language Evaluation 03/28/2023
Details Student challenges and recommends 2, thirty minute, individual SLT sessions, weekly; and 1, thirty minute, group SLT session, weekly. (Ex S 14-15)
Recommendation is made for compensatory services:
“Compensatory speech hours in the amount of 46 hours to compensate for lack of provision of mandated services during the 2020-2021 school year. Services may be provided in 60 minutes or higher increments as well, depending on her engagement, attention, etc. Providing these services will allow REDACTED to have the opportunity to address her specific needs in a consistent manner. I recommend that there shall not be an expiration on these compensatory services to allow REDACTED to utilize these hours with flexibility over an extended period. The compensatory services should occur in the home, or a combination of home and school if time permits in REDACTED’s school schedule. (Student’s) compensatory hours were based on a quantitative approach based on the lack of provision of services.” (Ex S 15) While the recommendation is made for compensatory services, there is no evidence of the insufficiency of the services provided during the 20-21 school year (Ex C); and there is no evidence of any loss of Student skill(s) for which compensatory services are necessary to make up for lost skills.
T Proof of Payment to [REDACTED] 04/20/2023-04/27/2023-05/11/2023
Parent provides proof of various payments to [REDACTED].
U [REDACTED] Neuropsychological Evaluation 05/31/2023
Details Student educational history and confirms Student need for special education services. (Ex U 1-5)
Testing confirms areas of Student special education need. (Ex U 5-15)
Diagnosis include:
o Attention Deficit Hyperactivity Disorder, Inattentive Type o Unspecified Communication Disorder o Developmental Coordination Disorder (Ex U 17) Recommendations are made for Student program, including: a small highly structured learning environment; ongoing 1:1 support; and if Student is to remain at the current program, full time SEIT support. (Ex U 18) Recommendation is also made for compensatory services: “Due to the absence of appropriate educational services while [Student] has been attending a DOE program, [REDACTED] requires compensatory education programming that includes: a. Special Education Itinerant Teacher Services (SEIT) - 25 hours per week • 1174 hours per year (Ex U 19)
Report includes:
- “According to the special education supervisor, [Student] made some progress with the support she has, but needs more 1-on-1 support in order to keep pace with her peers.” (Ex U 4); - Student has various attention and academic challenges (Ex U 4-5);
While the recommendation is made for compensatory services, there is no evidence of the insufficiency of the services provided during the school years at issue (Ex C, F & J); and there is no evidence of any loss of Student skill(s) for which compensatory services are necessary to make up for lost skills.
No specifics are provided as to what educational services provided were insufficient and what negative impact was made upon the Student. Student, by all accounts, has been provided with special education services, and has made progress.
V [REDACTED], OD, COVD paid receipt 06/01/2023
Parent provides proof of various payments to [REDACTED].
W [REDACTED] Semester I 2022-2023 Report Card undated
Student is shown to be successful at school. (Ex W 1)
In Hebrew-Academics Student: is able to accurately label all of the letters of the Aleph Beis that we have learned so far; and knows the sounds of the letters and has good phonemic awareness skills. Struggles includes: to attend during our circle and relies on verbal reminders to stay focused on the lesson; and Student seems unable to follow class routines without repetition of directions, possibly due to her high level of distraction and self directed behaviors. (Ex W 2)
In English Student: seems to enjoy classroom activities and be part of the group; is working on her transitions to and from activities, and will often be found at different centers or in different areas of the class; engages with peers during snack and lunch time but is working on playing cooperatively with a group during free play; is working hard on integrating our Social Thinking curriculum throughout the day; and responds well to social thinking redirection cues such as “body in the group”, and “following the group plan”. (Ex W 2)
Student is also noted to be able to: label and identify all the colors, shapes and numbers 1-11; label, identify, and state the sound of the ABC letters we have learned so far; counts nicely with 1:1 correspondence and can come up with simple patterns; and shares information and opinions during class discussions. Student occasionally needs reminders to raise her hand; and occasionally needs redirection. (Ex W 2)
X [REDACTED] Early Childhood Center Schedule undated
Student schedule, at the UP.
Y Email from [REDACTED] to [REDACTED] RE: vision therapy clarification 6/08/2023
Dr. emails Parent regarding recommended Vision Therapy:
“A program of Visual Therapy (92065) is recommended to remediate the visual conditions discovered during the evaluation. The Vision Therapy program consists of in office sessions along with home supported activities that are to be done daily (X3 for 2 minutes each). The office is equipped with software, lenses, prisms, vectograms and other equipment. The therapy is once a week, in my office, with home based work to be completed every day. I am a Developmental Optometrist specifically trained and certified to perform Visual Therapy. Only a Developmental Optometrist can perform the above mentioned techniques and evaluate the Patient’s progress. A general Optometrist or Occupational Therapist CANNOT provide this service. Children are re-evaluated after approximately 15-20 sessions to determine how many more sessions they need. On average, a child comes for approximately 30-40 sessions. [REDACTED]'s goal is to help [Student] reach her goals and help her improve her academic potential.” (Ex Y 1)
Z [REDACTED] list of tuition payments 2021-2022
Parent payments, to the UP.
2 Prior written notice, 6/15/22
Details DOE recommendation of a ten month placement with SETSS and related services. 3 Physical therapy report, 1/12/22
Notes Student progress with services, and notes areas of continued concern.
4 Speech progress report, 5/12/22
Notes progress with services and expectation that goals will be met by the end of the school year.
5 Occupational therapy progress report, 1/20/22
Notes progress with services, and concerns with significant delays.
6 Quarterly progress report, 5/17/22
Details Student related services, and in regards to the Student’s Educational Program, notes progress, goals, and areas of continued concern:
- Student has made “great progress in the area of focusing and sitting during group time and interacting with peer, she still struggles with transitions throughout the day. She also needs prompting to initiate play and conversation with peers. [Student] benefits from the services to also help her organizational skills in the classroom. I so enjoy seeing and interacting with [REDACTED] each day. I recommend that she continues her services to help her maximize her success in the school setting.” (Ex 6-3); - Needs prompting to initiate conversation at times; - Needs to improve focusing skills (Ex 6-3); and - Needs prompting to stay on task (Ex 6-4).
The Parent’s Attorney presented a Closing Brief, detailing the Parent’s position and sought after relief. (IHO Ex V)
Parent argues that Student continued to require Vision Therapy (VT) services, as received in Early Intervention. (IHO Ex V 2)
CPSE documents note: the Student is REDACTED; and is delayed 25% in visual skills. (Ex B 3)
The IEP, of 11/05/2020, includes noting Parent concerns regarding Student’s vision as related to fine motor difficulties. (Ex C 7) Concerns are also noted within the Psychological Evaluation (Ex B 15); and OT Evaluation. (Ex B 31-32)
Specific recommendation for VT is not made within the CPSE documents, though concerns with vision are consistently noted, and vision goals povided.
The IEP does include fine motor goals, to improve hand-eye coordination. (Ex C 9-10)
The IEP, of 11/24/2021, includes:
- Student continues to have delays in visual perceptual skills (Ex F 6); and - Fine motor skill goals, and visual motor goal. (Ex F 12-13) Regarding Student SEIT services, Parent argues that though services were increased to four hours weekly, the Student continued to struggle. (IHO Ex V 3) Evidence points to Student need for 1:1 support to address areas of delay. (IHO Ex V 4, T 125-128 & Ex U)
Parent argues the recommended Student services were not supported by the available evaluations and reports. (IHO Ex V 8-9)
Parent argues for the same services recommended via the IEPs, but at an increased level. For example, instead of a limited number of 1:1 SEIT, argument is made for all day 1:1 services.
(Ex C, F & J, T 128)
Parent contends the DOE has not established an offer of FAPE for the school years at issue (IHO Ex V 5-9), in part due to a failure to conduct appropriate evaluations. (IHO Ex V 6-7)
Parent argues the 22-23 services, engaged by the Parent, for the Student, were appropriate: “Parent believed it was her obligation to obtain a preschool program because the DOE did not have one available and that [Student] could only receive 4 hours per week of SEIT. Further, she was never provided with a menu of services that could be obtained. Thus, when she made the decision to put [Student] in [UP] in the first place, she had every reason to believe it would be appropriate.” (IHO Ex V 15)
Parent argues:
1. The DOE denied [Student] a FAPE in the SYs at Issue and violated Section 504.
2. The DOE will reimburse the parents for the following:
(a) Visual Perception
Evaluation; (b) Vision therapy provided by [REDACTED] (c) Tuition Payments for the 2022-2023 school year at [UP].
3. The DOE will pay for any pendency services that the parent obtained or that the DOE provided through private RSA providers from the date the DPC was filed until pendency ends by operation of law.
4. The DOE will provide an independent physical therapy evaluation.
5. The DOE will provide compensatory education equal to the difference between the CPSE IEP mandates and the services delivered during the 2020-2021, 2021-2022 and 2022-2023 SY summer.
6. The DOE will award compensatory SLT (46 hours) equal to the recommendations by the SLT evaluator (S). However, the compensatory SLT for pendency and as recommended by the evaluator should not exceed the evaluator’s recommendation.
7. The DOE will provide compensatory education equal to the difference between the student’s OT, SLT and PT mandates under pendency from the date of the decision until pendency ends by operation of law. (IHO Ex V 16)
8. The DOE will provide compensatory 1:1 instruction using special education teaching instruction equal to 25 hours per week for each of the school years; for 3 twelve month school years, this comes to 138 weeks or 3450 hours of 1:1 instruction.
9. To the extent not set forth herein, any additional recommendations by the IEE evaluators.
(IHO Ex V 17)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (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 generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative 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 parents' 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at [130]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 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).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] 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., 137 S. Ct. at 1000).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).
The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).
Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that DOE offer of FAPE for the 20-21, 21-22 & 22-23 School Years
Parent makes a variety of allegations, as detailed in the DPC, relative to each school year, essentially arguing evaluations were insufficient and the resulting IEPs failed to over a FAPE, over the school years at issue. (Ex A 1-8)
The DOE opted not to present a defense to the Parent’s allegations.
The district has presented no witnesses in this matter. Although the district submitted various documents including an IEP, it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)
Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE, for the school years at issue.
Therefore, I do not address the specific claims of the Parent concerning the review but note
I find them credible and unrebutted, to the extent allegations support a denial of FAPE.
The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 20-21, 21-22, or 22-23 school years.
I find the DOE failed to offer the Student a FAPE for the 20-21, 21-22, and 22-23 school years.
PENDENCY
Parent requests of relief related to Pendency.
Specifically: “3. The DOE will pay for any pendency services that the parent obtained or that the DOE provided through private RSA providers from the date the DPC was filed until pendency ends by operation of law.” (IHO Ex V 17)
To avoid any confusion the Pendency services are Ordered below, via Final Order, as included in the Pendency Order, of 02/02/2023, which contained:
1. Pendency services are ordered as follows:
- Special Education Itinerant Teacher (SEIT), Yiddish, Individual, 4, 60 minute sessions per week; - Occupational Therapy, Individual, 3 x 30 minutes per week; - Physical Therapy, Individual Service, 2 x 30 minutes per week; and - Speech-Language Therapy, Individual, 2 x 30 minutes per week. 2. Pendency shall commence from 11/07/2022.
(IHO Ex III 7)
UP Placement for the 22-23 School Year
Testimony and documentary evidence, as reviewed above, support UP as an appropriate Student placement for the 22-23 school year.
The credibility of the documentary and testamentary evidence was not controverted by the DOE and the evidence is relevant and material to the issues to be determined. I find that the documentary evidence on behalf of the Parent credible and persuasive in favor of the Parent.
Evidence sets forth areas of Student special education need, services to address those needs, and progress is noted. (Ex P, S, U &W)
Student registered for UP Kindergarten, for the 22-23 school year.
Tuition set forth as: $[REDACTED], $[REDACTED] Registration Fee and $[REDACTED] for School Supplies. Total of $[REDACTED]. (Ex I 2)
Parent obligated to Contract via signature. (Ex I 3)
Contract also includes a Scholarship Contribution of $[REDACTED] which does not appear to be related directly to Student services. (Ex I2 & 5)
Parent testifies that the Student’s UP Tuition was paid, as indicated in Exhibit Z. (T 133-134)
Parent provided the DOE with notice of the intended placement at the UP, for the 22-23 school year.
The UP details areas of Student need, classroom accommodations, and special education services to address the Student’s needs. This includes 1:1 ABA/SEIT support. (Ex P 1-5)
The UP provides details of Student services, goals and progress. (Ex W)
I find that the UP provides special education services specifically tailored to meet the needs of the Student.
I find UP provides an appropriate education and program for the Student for the 22-23 school year.
In this matter the Parents choose to continue Student placement at UP, without any evidenced DOE program capable of offering a FAPE.
I find Parent in no way frustrated any attempt of the DOE to offer the Student a FAPE and is entitled to DOE funding of the UP tuition, for the 22-23 school year.
COMPENSATORY SERVICES
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).
The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).
In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).
If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.
A FAPE has been found to have been denied the Student for the 20-21, 21-22 and 22-23 school years.
Parent presents evidence seeking to support an award of Compensatory Services, in light of the DOE failure, as detailed below.
Recent evaluations are uncontested and recommend compensatory services, in line with those demanded as relief via the Parent’s Closing Brief. (IHO Ex V 16)
This includes Compensatory SLT (46 hours) as recommended by the SLT evaluator. (Ex S 15)
Speech Progress Report notes progress with services and expectation that goals will be met by the end of the school year. (Ex 4)
IEPs include SLT goals and services:
- Oral Muscle Strength to improve articulation (Ex C 9), with mandate of 2x30 (Ex C 15); - Expressive and Receptive Language (Ex F 10-11), with mandate of 2x30 (Ex F 14); and - Expressive and Receptive Language, auditory skills and speech intelligibility (Ex J 10 & 16-19), with mandate of 2x30 (Ex J 23).
Recently obtained Speech Language Evaluation includes:
- Correspondence with Student’s school based speech pathologist, who indicated that the Student has made significant improvement in this past year. Student speech is reported to be more clear and she is more articulate and uses longer utterances compared to her performance from previous years. (Ex S 1); - Student does continued to have challenges in the areas of: attention, social reciprocity and self regulation; Student needs to increase her ability to tell and retell stories and interacts far better with adults than her peers; Student is very rigid in her schedule and has displayed tantrum or melt down behaviors when needing to transition; Student needs constant redirection and is very easily distracted. (Ex S 1); - A review of past evaluations detailing Student challenges (Ex S 2); - A review of Student IEPs evidencing progress, with continued areas of difficulty (E S 2-3); - Student, at the time of the evaluation, was [REDACTED] (Ex S 1); - Student CELF-5 Testing scores ranges from an age equivalent of 4:6 to 6:0 (Ex S 5); - Student Core Language Testing reflected general average scores (Ex SA 11-12); and - Student Test of Early Reading Ability-4, reflected Average Scores (Ex S 13-14).
While a recommendation is made for compensatory SLT service, no delay is identified which resulted from any deprivation of a FAPE, for any school year at issue.
Student scores are overwhelmingly in the average range and progress via delivered IEP services is evidenced.
While there has been a deprivation of FAPE, I do not find a basis upon which to award compensatory SLT services.
Parent also seeks the DOE to “provide compensatory education equal to the difference between the student’s OT, SLT and PT mandates under pendency from the date of the decision until pendency ends by operation of law. (IHO Ex V 16)
Student is already entitled to these services under Pendency, as confirmed below.
Parent also seeks an Order directing the DOE to: “provide compensatory 1:1 instruction using special education teaching instruction equal to 25 hours per week for each of the school years; for 3 twelve month school years, this comes to 138 weeks or 3450 hours of 1:1 instruction.” (IHO Ex V 17)
Regarding 1:1 services, the Student’s SEIT provider details the type of services delivered to the Student, which address Student special education needs. (T 122-127)
Witness believes the Student should receive full day one-to-one SEIT support. (T 128)
Parent is aware of Student areas of need and believes SEIT services are necessary. (T 134-135)
Student has received 1:1 SEIT services, along with other special education services, since the IEP developed on 11/05/2020 (Ex C 1); continuing via IEP, of 11/24/2021 (Ex F 1); and through IEP, of 05/18/2022. (Ex J 1)
Classroom observation, of 04/27/2022, confirms the Student’s need for SEIT services continued. (Ex H)
Student progress is noted, over the years, in the documents provided. (Ex 3, 4, 5 & 6, P 1-5 & W)
Student Neuropsychological Evaluation includes:
Due to the absence of appropriate educational services while [Student] has been attending a DOE program, [Student] requires compensatory education programming that includes: a. Special Education Itinerant Teacher Services (SEIT) - 25 hours per week • 1174 hours per year. (Ex U 19) Report also includes that Student progress has been reported, though more 1:1 Support is needed for Student to keep up with peers. (Ex U 4) This appears to be a forward looking recommendation, rather than direct evidence of a past failure, of the DOE.
The Student may indeed need additional service moving forward, but such a change in program must be considered at an IEP meeting. Evaluation essentially calls for full time 1:1 school day support, and an additional layer of 1:1 service, identified by Parent Attorney as 3,450 additional hours of 1:1 special education support. (IHO Ex V 17 & Ex U 4 & 19) Such an award would essentially provide three years of full time 1:1 support. While there has been a denial of FAPE, there has not been an evidenced negative impact upon the Student for which compensatory services need be awarded.
As noted above, though a recommendation is made for compensatory services, there is no evidence of the insufficiency of the services provided during the school years at issue. No specific delay is identified which resulted from a denial of FAPE. No specific compensatory 1:1 Service is tied to any evidenced Student delay which needs to be addressed, via compensatory services, to bring the Student to a place he would have been, but for the denial of FAPE.
There is no evidence of any loss of Student skill(s) for which compensatory services are necessary to address. No specifics are provided as to what educational services provided were insufficient and what negative impact was made upon the Student. Services, detailed in the IEPs, detail areas of Student need and services to generally address those needs. (Ex C, F & J) Recent Evaluation includes Testing that reveals that the Student has a variety of challenges affecting her education. (Ex U 15-17) Testing include: - Behaviors Assessment System with generally Non-Clinical results, with At-Risk areas of Attention Problems and Social Skills (Ex U 20-21); - Confirms Visual Motor challenges (Ex U 21); - Areas of challenge include Verbal Learning (Ex U 21); following directions and phonological processing (Ex U 22) - Average/Expected Scores for Expressive Vocabulary (Ex U 22); and - For Academic Skills the WIAT-IV scores vary from Extremely Low to Average (Ex U 23-24)
Testing reveals that the Student is indeed one entitled to special education services, which have been delivered over the past several years.
Evidence does not support any particular delay impacted by the failure to provide Student with additional 1:1 special education services.
The Student’s continued need for special education services does not in and of itself support the need for compensatory services.
I do not find compensatory 1:1 Services are warranted.
Compensatory award “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)
In this matter there is no evidence of the Student being displaced educationally, which would trigger the need for a compensatory award of services.
PROGRAM AND PLACEMENT
When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).
Attorney contends, due to the denial of FAPE for the past several years, the evaluations and documentary evidence support specific relief, both as part of an appropriate program moving forward, in the form of the UP, and as included in an Order for specific IEP inclusion of an NPS recommendation. (Ex A 12-13)
In this matter recent evaluations detail areas of Student need and makes recommendations regarding an appropriate Student special education program. (Ex Q, S & U)
These recommendations must be considered at an appropriate IEP meeting.
Relief in the form of IEP amendments and prospective placement of the student in a nonpublic school is not appropriate in this instance as it would tend to circumvent the statutory process, under which the CSE is the entity tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).
At this point, the 2022-2023 school year has ended, and, in accordance with its obligation to review a student's IEP at least annually, the CSE should have already convened to revise the Student's program and developed a new IEP for the student. (see 20 U.S.C. § 1414[d][4][A]; Educ. Law § 4402[2]; 34 CFR 300.324[b][1]; 8 NYCRR 200.4[f]).
At this time, if a meeting has not yet taken place to consider the newly acquired evaluative data, and related recommendations, either Party remains empowered to request an IEP meeting.
INDEPENDENT EDUCATIONAL EVALUATIONS
The IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]).
Parents who express a disagreement with an evaluation conducted by the district also have the right to seek an IEE conducted at public expense in some circumstances (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; see also Lauren W. v. DeFlaminis, 480 F.3d 259, 275 [3d Cir. 2007] [explaining that parents do not have the right to an IEE at public expense where parents actually agreed with the school's evaluation]; Edie F. v. River Falls Sch. Dist., 243 F.3d 329, 335 [7th Cir. 2001] [explaining that parents do not have the right to an IEE at public expense where their disagreement was with the result of the child's IEP not with a particular diagnosis or methodology of evaluation]; M.C. v. Katonah/Lewisboro Union Free Sch. Dist., 2012 WL 834350, at *11–12 [S.D.N.Y. Mar. 5, 2012]; M.V. v. Shenendehowa Cent. Sch. Dist., 2013 WL 936438, at *6 [N.D.N.Y. Mar. 8, 2013]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). "If the parent obtains an independent educational evaluation at public expense or shares with the public agency an evaluation obtained at private expense, the results of the evaluation [m]ust be considered by the public agency, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child" (34 CFR 300.502[c])
If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv]).
In this case the Parent seeks an independent physical therapy evaluation. (IHO Ex V 17)
Parent requested a PT evaluation back in February of 2023. (Ex N)
PT concerns were raised as far back and 2020. (Ex B 35-39)
The DOE has not yet responded to the most recent IEE request.
I find the Student is entitled to the requested PT IEE.
Parent obtained Visual Perception Evaluation, on 01/10/2023 (Ex C); along with a Patient History Explanation, regarding Vision Health & Therapy Service Recommendations, was also acquired, by the Parent, dated 01/03/2021 (Ex D); and clarified with a recent email (Ex Y)
Parent also has paid for VT services, since January 2023. (T 133 & Ex L, M, O, R, T, & V)
The DOE argues the VT related documents have not been provided, to the DOE, outside of the Hearing process. (T 151-152)
The Parent admits he did not provide the Visual Perception Evaluation to the DOE (T 150, Ex K).
The IEPs developed over the years do include services and goals related to Student vision challenges. (Ex C 9-10, F 6 & 12-13)
The Parent needs to provide the documentation regarding the Student’s Vision, and the potential need for additional DOE services, at an IEP meeting. This will allow the DOE an opportunity to properly address the special education needs of the Student.
I find the Parent is not entitled to funding for the privately obtained Visual Perception Evaluation, and treatment obtained, as recommended via the obtained evaluation.
ORDER
1. The Department of Education (DOE) failed to offer the Student a FAPE for the 20-21, 21-22 and 22-23 school years.
2. The UP provides Student with an appropriate program and placement, for the 22-23 school year.
3. The DOE shall reimburse Parent for Student 22-23 Tuition, for attendance at [REDACTED] Early Childhood Center [UP], in the amount of $[REDACTED].
4. The DOE shall fund Student Pendency services, from 11/07/2022, inclusive of:
- Special Education Itinerant Teacher (SEIT), English, Individual, 4, 60 minute sessions per week; - Occupational Therapy, Individual, 3 x 30 minutes per week; - Physical Therapy, Individual Service, 2 x 30 minutes per week; and - Speech-Language Therapy, Individual, 2 x 30 minutes per week.
5. The DOE shall fund, at reasonable market rate, an Independent Educational Evaluation, namely, a Physical Therapy Evaluation, of the Student.
6. The DOE shall provide Parent with any documents or forms necessary to facilitate evaluation, service(s), and payment under this Order, within ten days of the date of this Order.
7. This decision is subject to appeal and review by the State Review Officer.
DATED: July 17, 2023
DANIEL AJELLO
DANIEL AJELLO
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.
Footnotes
[130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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 parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).