New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 242970

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., District

#[REDACTED]

Impartial Hearing Officer: DI’INDRA FORGENIE-DHANANTWARI

Date of Filing: November 28, 2023

Hearing Requested by: PARENT

Date of Hearing: June 12, 2023 & July 19, 2023 Record Close Date: 09/07/2023

Date of Decision: 09/09/2023

BACKGROUND

On January 23, 2023 I was appointed as the Impartial Hearing Officer (“IHO”) to conduct an impartial due process hearing pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 United States Code, § 1415(f)(1), Article 89 of the New York State Education Law, and Part 200 of the Regulations of the Commissioner of Education, concerning a dispute between the Parent of Student attending a New York State Approved Non-Public School (“NPS”) and the New York City Department of Education (“DOE” or “District”). This matter was initiated by the Parent’s filing of a Due Process Complaint (“DPC”) on November 28, 2022. 1 Parent alleges that the DOE denied Student a free and appropriate public education (“FAPE”) for the 2020-2021, 2021-2022, and 2022-2023 school years.^[2] As a remedy for this failure, Parent is seeking: ^[3]

• A finding that the District failed to provide a free and appropriate public education for the 2020-2021, 2021-2022, and 2022-2023 school years.

• The District to fund 900 hours of compensatory transition services;

• The District to fund 900 hours of compensatory ABA services;

• The CSE to reconvene to consider the results of the Independent Transitional

Assessment and add its recommendations to the Student’s IEP including 6-9 hours per week of life skills training per week and 4 hours of transition coordination per month;

• The CSE to reconvene to consider adding the recommendations of the 2022 Initial

Intervention Plan and add its recommendation to the Student’s IEP including 15 hours per week of at home ABA services provided by a MSED/Special Education Teacher and^[1] hour per week of direct family training by a Board Certified Behavior Analyst (“BCBA”) at an enhanced rate of $250.00 per hour.

FINDING OF FACT

At the time of the DPC filing, Student was a [REDACTED]-year-old enrolled as student in an NPS, for the 12-month school year.^[4] It is not disputed that the Student is entitled to receive special education services. On March 2, 2020 the CSE met and developed an IEP for Student with a projected implementation date of March 16, 2020 and a projected annual review date of March 2, 2021. The November 2021 IEP recommended a 12 month school year in a special class consisting of 12 students, one teacher, and two assistant teachers (“12:1+2”) in a NPS Day School, 35 times per week with related services of individual occupational therapy (“OT”) two times per week for 30-minutes, group/individual parent counseling and training (“PCT”) one time per month, individual speech-language therapy (“SLT’) four times per week for 30-minutes, and an individual daily behavior paraprofessional.^[5]

On November 9, 2021 the CSE met and developed an IEP for Student with a projected implementation date of November 16, 2021 and a projected annual review date of November 9, 2022. The November 2021 IEP recommended a 12 month school year in a special class consisting of 12 students, one teacher, and two assistant teachers (“12:1+2”) in a NPS Day School, 30 times per week with related services of individual occupational therapy (“OT”) two times per week for 30-minutes, group/individual parent counseling and training (“PCT”) one time per month, individual speech-language therapy (“SLT’) three times per week for 30-minutes, and an individual daily behavior paraprofessional.^[6]

LEGAL FRAMEWORK

IDEA and the New York Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

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 v. Florida Union Free School Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought

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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).

When a school district fails to offer a FAPE, compensatory educational services may be awarded as 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]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008; see also Doe v. E. Lyme, 790 F.3d 440, 456-57 [2d Cir. 2015], cert. denied, 136 S. Ct. 2022 [2016]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).

Accordingly, an award of compensatory education should 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, 546 F.3d at 123; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008]; Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007]; Reid, 401 F.3d at 518).

A compensatory education award is a flexible equitable remedy that is often crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). However, the Second Circuit has affirmed the flexible approach adopted by Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) and declined to specify any particular approach: “[T]he Second Circuit has not articulated a test for determining how such awards are calculated. See, e.g., P. v. Newington, 2008 WL 4509089 (affirming compensatory education as appropriate without discussion of how award was calculated)”. Student X v. New York City Dep’t of Educ., 51 IDELR 122 (E.D.N.Y. 2008).

New York State law has placed the burden of production and persuasion at an impartial hearing on the District. Additionally, while allocating an evidentiary burden to the District, a parent nevertheless has a responsibility to identify the compensatory education remedy sought in the same fact-specific manner, and it is insufficient to assert general statements that a student is entitled to an unspecified amount of unidentified compensatory educational services.

ANALYSIS

FAPE

I find the DOE did not provide the Student with a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the DOE did not concede FAPE on the record at hearing it submitted no documents or testimony in support of its case. The DOE offered no explanation as to how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. Therefore, I find that the DOE failed to offer the Student FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.

COMPENSATORY EDUCATION SERVICES

Parent requests 900 hours of compensatory at home ABA therapy and 900 hours of compensatory transition services for the District’s failure to provide a FAPE for the 2020-2021 and 2021-2022 school years.

Testimony of Social Worker and Psychotherapist

The Licensed Social Worker and Psychotherapist of Service Provider (hereafter “Psychotherapist”) testified credibly, in sum and substance, to the following: Psychotherapist has been a licensed social worker and psychotherapist for 10 years. Psychotherapist first met the Student when they conducted an “April 21 of 2021” vocational assessment in evidence as Exhibit C. 7 Based on their evaluation the Student showed deficiencies in vocational skills, independent living skills, and transition skills and the Student received no help with these skills in the school setting. 8

Psychotherapist further testified that the Student needed 900 hours of transitional services because the Student’s social skills declined as a result of the pandemic and not receiving services. 9 The Psychotherapist stated that the 900 hours were calculated based on six to nine hours a week of life skills and vocational on top of the four hours per month for transitional services for the last two years. 10 The Psychotherapist later clarified she intended for the Student to receive 9 hours a week of life and vocational skills. The calculation of the 900 hours of 7 The Psychotherapist referred to the date of the vocational assessment, in evidence as Ex. C, as April 21, 2021however this appears to be an error as the vocational assessment is darted June 14, 2021. Tr. 6/12/23. p.22. 8 Tr. 6/12/23 p. 25 9 Tr. 7/19/23 p.7 10 Tr. 7/19/23 p.8-9 compensatory transitional services appears to be arbitrary. If the Student’s life and vocational skills were 6 hours per week with four hours of transitional services the Student would be in need of 920 hours of compensatory services. If the Student’s life and vocational skills were 9 hours per week with four hours of transitional services the Student would be in need of 1,196 hours of compensatory services. Although, I find based on the record that the Student is entitled to compensatory transitional services because of the DOE’s failure to include said services on the Student’s IEP, there was no evidence from Parent’s counsel that explained the discrepancy in the number of hours recommended. Therefore, I cannot rely on the number provided by the Psychotherapist in determining my award for compensatory transitional services.

Based, on the testimony of the BCBA I find an award of 1,380 hours of compensatory transitional services is appropriate for the Student. The calculation was derived by determining that 6 hours of life and vocational and four hours of transitional services should have been given to the Student for the 12 month school year for the 2020-2021, 2021-2022, and 2022-2023 school years. I find said award is sufficient to place the Student in the position they would have been in had they received the necessary services.

Testimony of Director of Service Provider The Director of Services at Service Provider (hereafter “Director”) testified credibly, in sum and substance, to the following: Director has an undergraduate degree in Elementary Education, a Master’s of Science Degree with an extension in early childhood students with disabilities, and has a New York State teacher’s certification for student’s with disabilities, birth through 6.^[11] Director has been a classroom teacher for general and special education, a special education itinerant teacher (“SEIT”) working in different programs throughout the boroughs, an IEP reviewer at CPSE meetings for children being evaluated in preschool, previously the placement coordinator at Service Provider and now the Director at Service Provider.^[12] As the Director of Services at Service Provider, Director oversees the Special Education Departments

Director testified that Service Provider charges $145.00 per hour for life skills training, for oversight, which is the transition coordination, the charge is $125.00 per hour, and the ABA rate is $125.00 per hour and said rates are within market rate.^[15] Although, Parent’s counsel does not specify in their DPC or Closing Brief a rate at which they were requesting the compensatory transition services and ABA I find the testimony of the Director establishes market rate for the requested services. Additionally, although Parent’s counsel asked for the ABA services for the 2022-2023 school year to be at an enhanced rate of $250.00 per hour Parent’s counsel presented no evidence to show why such a rate would be appropriate when the Director testified that $125.00 per hour was market rate for ABA services.

Testimony of the Board Certified Behavioral Analyst

The Board Certified Behavioral Analyst (hereafter “BCBA”) testified credibly, in sum and substance, to the following: The BCBA has a Master’s in Special Education, a Master’s in Rehab Counseling, and a post-Master’s Degree in Applied Behavioral Analysis (“ABA”).^[16] BCBA is a ABA BCBA Supervisor / Direct Instructor for SETSS services at home and has 35 years in special education as a special education teacher, early intervention teacher, SETSS provider, and SEIT provider.^[17] For the last 18 years BCBA has been a Board Certified Behavioral Analyst, supervising at home ABA, school ABA, and early ABA program and cases.^[18] BCBA became familiar with the Student in 2018 when they were contacted to do a behavioral assessment, behavioral intervention plan, and treatment plan for the Student.^[19] The BCBA has also provided ABA services and ABA supervision services to the Student.^[20] The BCBA continues to

13 Id.

14 Id.

Although the BCBA testified that she did not do the calculations that was the basis of the 900 hours of ABA request, the BCBA testified they believed 900 hours of compensatory ABA services would put the Student in the place they would have been in had they received the necessary ABA services for the school years at issue. Based on the testimony of the BCBA, I find that 900 hours of compensatory ABA services is reasonable for the DOE’s failure to address the Student’s need for ABA services for the 2020-2021, 2021-2022, and 2022-2023 school years. ^[22]

Request to re-convene the CSE to add ABA Therapy and Transition Coordination

The Parent requests the undersigned to order the District to convene the CSE to add the following services to the Student’s IEP: 15 hours per week of at home ABA services, one hour per week of family training by a BCBA, 6-9 hours per week of life skills training, and 4 hours a month of transition coordination.

Given that the 2022-2023 school year is now over, I find the Parent’s request for a reconvene should be denied. An order requiring the CSE to reconvene would impact the Student’s programing for the 2023-2024 school year, which is not a school year that is before the undersigned. I agree with the District’s argument that any order directing the specific contents of a future IEP, under certain circumstances, has the effect of circumventing the statutory process. ^[23] Any relief for the 2022-2023 school year should appropriately be calculated as compensatory education now that the school year is over.

Additionally, at the time of the November 28, 2022 DPC, which was during the 2022-2023 school year, the Student was in his final year at the NPS.^[24] Therefore any order requiring the CSE to reconvene would be inappropriate as it would potentially require the CSE to reconvene for a

21 Tr. 6/12/23 p. 45-46

Equitable Considerations

No equitable considerations against the Parent were presented by the DOE or considered by this tribunal.

ORDER

It is hereby Ordered:

The District to fund compensatory education services as follows:

a) 900 hours of ABA at a rate not to exceed $145.00 by Service Provider or a Provider of the Parent’s choosing; b) 1,380 hours of transition services at a rate not to exceed $125.00 by Service Provider or a Provider of the Parent’s choosing.

c) All compensatory services awarded pursuant to this order shall expire within 3 years of the issuance of this order.

DATED: SO ORDERED

9/9/2023 /s/ Di’Indra Forgenie-Dhanantwari, Esq.

IHO Di’Indra Forgenie-Dhanantwari, Esq.

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.

PARENT EVIDENCE

A. Impartial Hearing Request 11/28/22 5 pages

B. Resolution Agreement 1/9/23 2 pages

C. Vocational Assessment 6/14/21 25 pages

D. Student Progress Report 8/16/22 2 pages

E. Intervention Plan: Initial 6/7/22 14 pages

F. IEP 11/9/21 2021-22 30 pages

DISTRICT EVIDENCE

1. Individualized Education Program (IEP) 3/2/2020 27 pages District

2. IEP Attendance 3/2/2020 1 page District

3. WITHDRAWN District

4. WITHDRAWN District

5. WITHDRAWN District

6. WITHDRAWN District

7. WITHDRAWN District

8. WITHDRAWN District

9. WITHDRAWN District

10. WITHDRAWN District

11. WITHDRAWN District

12. WITHDRAWN District

13. Behavioral Intervention Plan 1/14/2020 9 pages District

14. Behavioral Intervention Plan 11/28/2022 9 pages District

15. Vocational Assessment 6/14/2021 25 pages District

16. Student Interview 9/15/2022 18 pages District

17. Behavior Intervention Plan Progress Report 4/30/2021 2 pages District

IHO EVIDENCE

Footnotes

[1] Ex. A.

[2] Id.

[3] Parent’s Closing Brief p.1 A pre-hearing conference was held on March 1, 2023. The impartial hearing was held on June 12, 2023 and July 19, 2023. A list of the witnesses who appeared and the documents taken into evidence is annexed to this decision. The record closed on September 7, 2023. The compliance date for issuing a decision in this proceeding is September 9, 2023.

[4] Ex. A, F, & 1

[5] Ex. F-20

[6] Ex. F-20 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). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; 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 v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.

[11] Tr. 6/12/23 p. 34

[12] Tr. 6/12/23 p. 35 and the Related Services Department, and testifies at hearings regarding rates and availability of therapists.13 Director is familiar with the Student because Service Provider has been providing services to the Student for about five years and has conducted assessments of the Student. 14

[15] Tr. 6/12/23 p. 37-38

[16] Tr. 6/12/23 p. 44

[17] Id.

[18] Id.

[19] Id.

[20] Tr. 6/12/23 p. 45 recommend ABA services for the Student to address the Student’s expressive, receptive, social, behavioral, and academic delays and 1 hour per week of family training. 21

[22] Tr. 6/12/23 p. 56-58

[23] DOE Closing Brief p. 10; Application of a Student with a Disability, Appeal No. 22-145

[24] Ex. A p. 2 Student that is no longer eligible for special education services by way of graduation or aging out. Based on the above findings the Parent’s request for a reconvene of the CSE must be denied.