New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 594271 NYC: 244391

FINDINGS OF FACT & DECISION

Case No.: 244391

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

Date of Birth: Redacted

District: redacted

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

School: Redacted (hereinafter referred to “Private School”)

Hearing Dates: April 4, 2023, April 5, 2023

Actual Record Close: May 7, 2023

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 4, 2023

For the Student:

Redacted, Esq., Parent Attorney

Redacted, Parent Student

Redacted, Grandmother

For the Department of Education:

Redacted, Esq., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 5, 2023

For the Student:

Redacted, Esq., Parent Attorney

Redacted, Parent Student

For the Department of Education:

Redacted, Esq., Attorney

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parent’s Due Process Complaint (“DPC”) filed on December 30, 2022, regarding the 2020/2021, 2021/2022 and 2022/2023 school years. The DPC alleged that the New York City Department of Education (“District”) denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing an appropriate IEP and placement for the 2020/2021, 2021/2022 and 2022/2023 school years. The Parent has requested funding for the unilateral placement of the Student at the Private School for the 2022/2023 school year, compensatory services, independent evaluations and transportation.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on or about January 4, 2023. A prehearing conference was held on February 15, 2023, to discuss the issues in the case and schedule hearing dates. A hearing on the merits was held on April 4, 2023, and April 5, 2023. 2023 (See, Transcripts).^[1] The District documentary evidence. The Parents presented documentary evidence and presented two witnesses by affidavit. At the hearing, the Parent withdrew her request for a functional behavior assessment of the Student. The record closed on May 7, 2023. There were two extensions of the timelines to accommodate witnesses.

FINDINGS OF FACT

The Student was a Redacted who attended the Private School for the 2022/2023 school year. The Student is diagnosed with Autism Spectrum Disorder, Delayed Milestone in Childhood, Mixed Receptive and Expressive Language Disorder and Mixed Development Disorder and is classified as a student with Autism (P-Ex. F, G). The Student demonstrates difficulties in communication, social pragmatic, delayed play skills area, inflexible adherence to certain nonfunctional routines, rituals, or restricted repertoire of interests and behaviors (P-Ex. G).

On or about August 23, 2022, the Parent notified the District that the Student was going to be placed at the Private School since the IEP recommended for the 2022/2023 school year was not appropriate nor was an appropriate placement recommendation provided for the 2022/2023 school year (P-Ex. K, T.).

A neurological evaluation was conducted on the Student in 2021. The evaluator noted that the Student would “benefit from enrollment in a CPSE program that is specialized in the education of children with severe communication disorders/autism, social pragmatic deficits, disruptive behaviors, that can address her communication and social delays, sensory processing and behavioral difficulties, yet provide academic material consistent with her cognitive level and has a behavioral component such as an Applied Behavior Analysis (“ABA”) program that can keep her focused and bring her to full potential.” (P-Ex. G). In addition, he recommended a 12-month program for the Student to attend (P-Ex. G).

A psychological evaluation was conducted on the Student in 2022. The evaluator recommended that the Student attend a small, structured setting and that the following services should be provided: speech and language therapy, occupational therapy, ABA therapy, and parent counseling and training (P-Ex. K).

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a 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.”

The Court in Endrew further stated that, “[t]he IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that, “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982). 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.

Here, the District did not present any testimony to prove that it offered the Student a FAPE during the 2020/2021, 2021/2022 and 2022/2023 school years. The District has, therefore, failed to meet its burden of proof in this proceeding. Based on all of the evidence, I find that the District did not provide the Student with FAPE for the 2020/2021, 2021/2022 and 2022/2023 school years.

PARENT’S BURDEN

Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate” Gagliardo, at 112; see M.S. v. Bd. Of Educ., 231 F.3d 96, 104 [2d Cir. 2000]). “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the school district's placement is appropriate should be considered in determining the appropriateness of the parents’ placement…’” Gagliardo, at 112, quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). 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 the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; Gagliardo, 489 F.3d at 115). A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89).

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 must provide an educational program which meets 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 (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“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). Finding that the District did not provide FAPE to the Student during the 2020/2021, 2021/2022 and 2022/2023 school years, the burden now shifts to the Parent to prove the appropriateness of the unilateral placement. The Parent presented extensive testimony and documentary evidence in support of their position that the Private School was appropriate (P-Ex. L, Q, S, T). The evidence established that the Private School was appropriate and provided the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.

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 but that the Parent failed to provide any competent evidence as to amount of services the Student should receive.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). In balancing the equities, I find in favor of the Parent. To the extent possible, the Parent has participated in all aspects of the special education process.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2020/2021, 2021/2022 and 2022/2023 school years. I further find that the Parent’s unilateral placement at the Private School was appropriate and that the Student is entitled to compensatory services but there was a lack of evidence to support this request. I also find that the Student is entitled to independent educational evaluations consisting of a neuropsychological, bilingual speech and language and an ABA skills assessment. An assistive technology evaluation was performed in 2022 and an occupational evaluation in 2021 and I find that these evaluations were comprehensive and not necessary at this time. I find that the District failed to address the Parent’s requests for independent educational evaluations and that it was appropriate for the Parent to request them in a due process complaint.

ORDER

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

1. ORDERED, that the New York City Department of Education shall fund the tuition and related costs at the Private School for the Student’s unilateral placement for the 2022/2023 school year and provide transportation;

2. ORDERED, that the New York City Department of Education shall pay for a neuropsychological evaluation of the Student by a provider of the Parent’s choosing at a cost not to exceed $6,000;

3. ORDERED, that the New York City Department of Education shall pay for a bilingual speech and language evaluation of the Student by a provider of the Parent’s choosing at a cost not to exceed $3,300;

4. ORDERED, that the New York City Department of Education shall pay for an ABA skills assessment of the Student by a provider of the Parent’s choosing at a cost not to exceed $4,275.

SO ORDERED

DATED: May 14, 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

1. Bilingual Psychological Evaluation 3/11/2020 8 pages DOE

2. Early Intervention Occupational Therapy Progress Report 6/13/2020 5 pages DOE

3. Early Intervention ABA Progress Report 11/12/2020 5 pages DOE

4. Social History Evaluation 11/23/2020 4 pages DOE

5. Educational Evaluation 12/08/2020 7 pages DOE

6. Speech and Language Evaluation 12/09/2020 3 pages DOE

7. Psychological Evaluation 12/07/2020 5 pages DOE

8. Occupational Therapy Evaluation 12/10/2020 4 pages DOE

9. Speech and Language Annual Report 9/15/2021 6 pages DOE

10. Occupational Therapy Annual Review 10/05/2021 4 pages DOE

11. Updated Annual Social History 10/13/2021 3 pages DOE

12. 12 Month Referral 10/15/2021 2 pages DOE

13. Educational Progress Report 10/15/2021 5 pages DOE

14. CD Assistive Technology Evaluation Form 11/04/2021 7 pages DOE

15. Preliminary Neurological Report 11/15/2021 3 pages DOE

16. Individualized Education Program (IEP) 12/21/2021 22 pages DOE

17. Assistive Technology Evaluation 1/26/2021 9 pages DOE

18. Assistive Technology Evaluation Attendance Page 1/26/2021 1 page DOE

19. Waiver to Amend IEP 2/09/2022 1 page DOE

20. IEP 2/16/2022 26 pages DOE

21. Psycho-Social History Update 3/16/2022 1 page DOE

22. Classroom Observation 3/24/2022 1 page DOE

23. Preschool Evaluation Scale 3/24/2022 3 pages DOE

24. Psychological Update 5/24/2022 7 pages DOE

25. IEP 5/25/2022 27 pages DOE

26. Prior Notice Package for Placement 6/08/2022 4 pages DOE

27. Prior Written Notice 6/15/2022 8 pages DOE

PARENT EVIDENCE

A. Parent’s Impartial Hearing Request 12/30/22 8 pages

B. Individualized Education Program 12/23/20 23 pages

C. Individualized Education Program 12/21/21 22 pages

D. Individualized Education Program 05/25/22 27 pages

E. Bilingual Psychological Evaluation 03/11/20 5 pages

F. Letter from Neurologist 10/18/21 1 page

G. Preliminary Neurological Report 11/15/21 3 pages

H. Classroom Observation 03/24/22 1 page

I. Psychological Update 05/24/22 7 pages

J. Prior Written Notice 06/08/22 4 pages

K. Ten Day Notice Letter 08/23/22 13 pages

L. Redacted Program Description Undated 2 pages

M. Redacted Enrollment Contract 08/10/22 3 pages

N. Redacted Tuition Affidavit 08/15/22 1 page

O. Redacted 2022-2023 Class Schedule Undated 1 page

P. Redacted Behavior Reduction Plan 10/11/22 9 pages

Q. Redacted Progress Report 12/2022 24 pages

R. Rate Sheets Undated 3 pages

S. Affidavit of Redacted 03/28/23 7 pages

T. Affidavit of Redacted 03/28/23 4 pages

IHO’s EVIDENCE

None

Footnotes

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