New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593180 - NYC: 243592

FINDINGS OF FACT & DECISION

Case No.: 243592

Student’s Name: Redacted (hereinafter referred to as “Student”)

Date of Birth: Redacted

District:

Hearing Request by: Redacted (hereinafter referred to as “Parent”)

Hearing Dates: March 24, 2023

Actual Record Close: April 21, 2023

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 24, 2023

For the Student:

Redacted, Esq, Attorney

Redacted, Parent/Guardian

For the Department of Education:

Redacted, District Representative

Hearing Officers Findings of Fact and Decision

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on December 9, 2022 (P-Ex. A) ^[1]. The DPC alleged that the District failed to provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with appropriate evaluations, special education services, appropriate IEPs during the 2020/2021, 2021/2022 and 2022/2023 school years (P-Ex. A). The Parent is seeking, inter alia, compensatory services and independent educational evaluations.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on January 9, 2023. A pre-hearing conference was held on February 16, 2023. The hearing began on March 24, 2023, and concluded in one day (See, Transcript).^[2] The District failed to appear and was found in default. The Parent presented documents, which were admitted into evidence, and two witnesses by affidavit. The record closed on April 21, 2023. There were two extensions of the compliance date in order for the District to investigate the possibility of settlement and accommodate witnesses.

FINDINGS OF FACT

The Student was a Redacted student who was attending 1st grade when the due process complaint was filed. The Student is diagnosed with Attention Deficit Hyperactivity Disorder, Redacted Syndrome, Redacted Disorder, Oppositional Defiant Disorder, Dyslexia, Redacted Disorder and Conduct Disorder and is classified as a student with a Speech and Learning Impairment.

The Student had remote instruction last year through kindergarten and then was homeschooled by her Guardian from September 2021 through February 2022. She returned to the public school system for 1st grade in a general education classroom with Special Education Teacher Support Services (“SETSS”) and speech and language therapy. She was absent a lot due to her Redacted disorder. She had a difficult time adjusting to the school routine and has been displaying aggressive and physical behaviors to staff and peers. Her behavior is extremely disruptive to the other students in class and often has to be removed because her behavior is a danger to herself and others. She has a history of hitting teachers, pushing, screaming at students, banging, slamming her head on the rug, jumping on students’ backs, and throwing paper and pencils at teachers. The Student has exhibited this behavior despite having a behavior intervention plan at school.

Redacted, Redacted, testified that she tested the Student on October 7, 2022 and that the Student was performing on a pre-kindergarten level for decoding and spelling and a low kindergarten level for math, a pre-kindergarten level for writing and kindergarten level for reading comprehension. Redacted also recommended that the Student receive 500 hours of 1-1 multisensory tutoring.

The District failed to appear for the hearing and therefore failed to provide any testimony or evidence regarding the IEPS for the 2020/2021, 2021/2022 and 2022/2023 school years. There was no evidence to prove that the IEPs for these years provided a FAPE to the Student.

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 generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [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.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

COMPENSATORY SERVICES

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, based on the facts above, I find that the Student is entitled to compensatory services to attempt to place the Student in the position she should have been in, if she had received the appropriate special educational services for the 2020/2021, 2021/2022 and 2022/2023 school years and based on the denial of FAPE for the school years in question. Moreover, the Parent disputes the validity of the evaluations performed by the District and considering the unique needs of the Student, I find that the Parent is entitled to a neuropsychological, occupational and speech and language evaluation of the Student to identify any and all and services that she requires.

ORDER

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

1) ORDERED, that the District shall fund a bank of 500 hours of academic tutoring for the Student to be provided by a Provider of the Parent’s choosing at market rate with no expiration date;

2) ORDERED, that the District shall fund a neuropsychological evaluation for the Student to be provided by a Provider of the Parent’s choosing at market rate;

3) ORDERED, that the District shall fund an occupational therapy evaluation for the Student to be provided by a Provider of the Parent’s choosing at market rate;

4) ORDERED, that the District shall fund a speech and language therapy evaluation for the Student to be provided by a Provider of the Parent’s choosing at market rate;

5) ORDERED, that the District shall convene an IEP meeting for the Student to develop an appropriate IEP that addresses the behavioral, academic, and emotional needs of the Student to include meaningful and measurable goals. The IEP shall include appropriate accommodations and modifications for the Student. An attorney for Redacted shall accompany the Parent to this IEP meeting. The CSE shall defer the Student to the Central Based Support Team for a specialized program in a non-public school.

SO ORDERED

DATED: April 23, 2023

_Marisa Carbone__

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

None

PARENT EVIDENCE

A. No. Date Description Pages Date Exhibit Name Pages Vineland Evaluation 2.25.20 3 pages

B. Individualized Education Program 4.1.20 17 pages

C. 2021- Report Card 2022 2 pages

D. Teacher Report 2.8.22 2 pages

E. Functional Behavior Assessment 4.11.22 1 page

F. Consideration of a Student’s Need for Positive Behavior Supports, FBA, or a BIP 4.11.22 3 pages

G. Behavior Intervention Plan 4.11.22 5 pages

H. Psychoeducational Evaluation Report 4.25.22 6 pages

J. I 4.25.22, Classroom Observation 2 4.29.22 Individualized Education Program 5.9.22 25 pages

K. Updated Behavior Intervention Plan 6.24.22 5 pages

L. Redacted Evaluation 10.10.22 1 page

M. Affidavit of Redacted 2.23.23 3 pages

N. Request for Impartial Hearing 12.9.22 11 pages

O. Affidavit of Redacted 3.17.23 9 pages

IHO EVIDENCE

None

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits. The date in the record for the exhibit is in error.

[2] Reference to the Transcript shall be referred to as “T”.