New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 591710 - NYC: 242468

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: 9-26-23

Actual Record Close Date: 9-26-23

Hearing Officer: Steven P. Forbes

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 26, 2023

For the Student:

[REDACTED]

For the Department of Education:

None

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”)

through the Parent’s Due Process Complaint (“DPC”) filed on or about November 18, 2022. In the DPC the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2020-2021, 2021-2022 and 2022-2023 school years for failure to provide an appropriate program. The Parent requested relief in the form of compensatory education and services, IEEs, interim ABA services, CSE deferral to the CBST, and a direction that the District reconvene the CSE.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on January 13, 2023. A hearing regarding the Parent’s requests for relief was held on September 26, 2023. The District did not appear for the hearing and thus did not present either evidence or witnesses.^[1] The Parent presented thirty-one exhibits, which were admitted into evidence, and six witnesses, via affidavit.^[2] The District waived its right to cross-examine the witnesses. The record closed on September 26, 2023. There were nine extensions of the compliance date to permit the completion of independent evaluations. At the conclusion of the hearing, the District did not appear and thus did not oppose the Parent’s request for relief. In addition, the District, which presented no witnesses or argument on the issue of FAPE has conceded, and I so find, that the District did not, in fact, afford the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.

FINDINGS OF FACT

As stated, the District did not appear at the hearing of this matter. Thus, despite the fact that the Parent introduced multiple IEPs that the District developed for the Student over the course of multiple years, the District did not present any evidence or witnesses to defend any of these IEPs. By the same token, the District did not challenge any of the extensive affidavit testimony proffered by the Parent that detailed the gross violations of the Student’s right to a FAPE that the Student has endured over the course many years during which the District essentially ignored the Student’s needs and Parent’s repeated requests for assistance.

As a result of the above, there is no question that the District denied the Student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years.

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 2020-2021, 2021-2022, and 2022-2023 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 anywhere near the level of services which he required. 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 2020-2021, 2021-2022, and 2022-2023 school years.

ORDER

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

A) That the Student entitled to compensatory education and services as follows: 1) A bank of 690 hours of Intensive Individualized Academic Remediation at the rate of $175.00 per hour; 2) A bank of 276 hours of home-based ABA services at the rate of $175.00 per hour; 3) A bank of 110 hours of compensatory BCBA supervision at the rate of $200.00 per hour; 4) A bank of 144 hours of Parent Counseling and Training Services at the rate of $200.00 per hour; 5) A bank of 100 hours of Counseling Services, at the rate the ABA provider charges for this service; 6) A bank of 138 hours of Speech and Language Therapy at the rate of $185.00 per hour; 7) A bank of 92 hours of Occupational Therapy at the rate of $185.00 per hour; 8) A bank of 46 hours of Assistive Technology Instruction for the Student at a rate of $185.00 per hour; and, 9) A bank of 23 hours of Assistive Technology Training for the Parent at the rate of $185.00 per hour. There shall be no expiration date on the above banks of compensatory education and services.

B) The District shall forthwith reconvene the CSE to develop a program recommendation in a small class in an New York State approved program for children with Autism Spectrum Disorder, Learning Disorders, ADHD, Executive Functioning Disorders that can provide the Student with his related services, a BIP, an assistive technology device and specialized methodologies to address the Student’s learning, social emotional and behavioral needs;

C) Until an appropriate program consistent with the requirements set forth in paragraph B) are located, the District shall fund twenty (20) hours per week of push-in ABA services overseen by a BCBA for two (2) hours per week, at the rate of $175.00 per hour for the push-in ABA services and $200.00 per hour for the BCBA supervision;

D) The District shall fund the following IEEs: 1) Speech and Language Evaluation at the rate of $1,650.00; 2) Occupational Therapy Evaluation at the rate of $1,500.00; 3) FBA/BIP at the rate of $2,800.00 for the FBA and $550.00 for the BIP;

E) That the District authorize the funding of the recommended co-treatment of compensatory services with ABA services;

F) The District’s Implementation Unit shall authorize all actions and services listed above within fifteen (15) days of the date of this Order; and,

G) The Student is entitled to special education transportation.

SO ORDERED:

DATED: September 26, 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. IEE Request

C. Affidavit - Neuropsychologist

D. Affidavit – Behavioral Analyst

E. IEP

F. IEP

G. IEP

H. IEP

I. IEP

J. Neuropsychological Evaluation

K. DOE Occupational Therapy Evaluation

L. DOE Classroom Observation

M. DOE Vocational Interview - Parent

N. DOE Vocational Interview – Student

O. DOE Social History Evaluation

P. DOE Psychoeducational Evaluation

Q. DOE SLT Evaluation

R. DOE Psychoeducational Evaluation

S. DOE OT Evaluation

T. PWN

U. PWN

V. Request for medical transportation

W. Request for Reevaluation

X. Affidavit – Parent

Y. Affidavit – Psychologist

Z. Compensatory Service Plan AA. Affidavit – Special Education Teacher BB. Affidavit – OT

CC. Resume

DD. CV

EE. Resume

Footnotes

[1] The District had previously appeared and indicated they were defending the case but then failed to either disclose any evidence and failed to appear on the day of the hearing..

[2] The list of exhibits is attached.