Impartial Hearing Decision

COVER SHEET

Case Number 244487

Date Requested January 4, 2023

Hearing Officer Sharyn Finkelstein

Student’s Name REDACTED

Date of Birth REDACTED

District REDACTED

Hearing Requested By Parent

Date of Hearing September 11, 2023

October 2, 2023

Hearing Officer Sharyn Finkelstein Esq.

Record Close November 17, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 11, 2023

For the Student:

REDACTED Attorney

For the Department of Education:

REDACTED Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 2, 2023

For the Student:

REDACTED Attorney

REDACTED Parent

REDACTED Psychologist

REDACTED Occupational Therapist

REDACTED Director, REDACTED

For the Department of Education:

REDACTED Attorney

I was appointed to I was appointed to conduct an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(1), concerning the special education of REDACTED (hereinafter referred to as “Student”) for the 2020-2021, 2021-2022, 2022-2023 and 2023-2024 school year.

The parties moved to extend the compliance date on several occasions for preparation for hearing and witness availability. In considering the requests. I weighed the cumulative impact of the relevant factors and found that the need for one extension was greater than any delay in the resolution in this matter.

Attached is a list of persons who attended the hearing and evidence that was submitted. The record was closed on November 17, 2023.

BACKGROUND

Student was REDACTED and in grade REDACTED at the time the amended due process complaint was filed. (Tr. 120)

Student has mild to moderate inattention (ADHD) and a language disorder. He has a reading disorder, a math disorder and a disorder of written expression. (Exhibit K, Tr. 68) He has a very serious inability to focus and pay attention which affects his memory. (Tr. 74)

Student had attended REDACTED during the 2019-20200, 2020-2021, and 2021-2022 school years. Student currently attends a public school.

On October 11, 2019 an IEP meeting was held and Student was classified with a Learning Disability. They recommended a 12:1:1 with group speech-language therapy twice a week for thirty minutes. (Exhibit G)

During the 2020-2021 school year Student entered REDACTED grade and remained at REDACTED. A new IEP was developed on October 4, 2020 (Exhibit F) They recommended the same 12:1;1 program with speech language therapy twice a week for thirty minutes.

On May 19, 2021 the CSE convened (Exhibit E) and they continued to recommend a 12:1:1 program with group speech language therapy.

During the 2021-2022 school year Student was at REDACTED. On May 13, 2022, (Exhibit

D) a new IEP was developed. They recommended a less restrictive setting, 12:1 special education class with the speech language therapy twice a week for 30 minutes.

On January 3, Parent disagreed in writing with the evaluations that DOE had relied on in creating IEP (Exhibit Q)

On March 9, 20223 the district conducted an assistive technology evaluation and determined that Student required an assistive technology device. (Exhibit H)

Parent disagreed with the evaluation and requests an independent evaluation.

On March 19, 2023 Dr. REDACTED conducted a neuropsychological evaluation. (Exhibit K)

On March 20, 2023 REDACTED a Speech Pathologist completed a Speech/Language Evaluation for REDACTED (REDACTED). (Exhibit J)

On March 20, 2023 Occupational therapist, REDACTED conducted an evaluation. (Exhibit I)

On May 10, 2023 the CSE reconvened and made no change in Student’s class setting but added one individual speech language session, two occupational therapy sessions and an assistive technology device. (Exhibit C)

The director of ELS, REDACTED, conducted a records review and determined the need for compensatory academic remediation program. (Exhibit S)

Parent filed a due process complaint on January 4, 2023 for the 2020-2021, 2021-2022, 2022-2023 school years. (Exhibit B) Parent filed an amended request on June 9, 2023 to include the 2023-2024 school year requesting various forms of compensatory relief, request for a non-pubic school over an extended year, and various evaluations. (Exhibit A)

DEPARTMENT OF EDUCATION’S CASE

The Department of Education (DOE) was represented by their attorney REDACTED.^[1] They did not have any witnesses or submit any evidence. They did not cross-examine any of Parent’s witnesses. They did not make an opening or submit a closing brief.

PARENT’S CASE

The parent was represented by their attorney REDACTED. It is their position that the DOE failed to offer a FAPE to Student for the 20220-2021, 2021-2022, 2022-2023 and 2023-2024 school years. They request compensatory services as a remedy for the denials of FAPE. They request that CSE to reconvene to consider the recommendation of the independent. evaluations. They also seek an independent assistive technology evaluation, independent feeding evaluation, transitional vocation evaluation and a reevaluation of Student in two years. It is their position that Student should be placed in a non-public school for an extended school year. Parent submitted evidence into the record. The Parent, the Executive Director of REDACTED, an expert in pediatric neuropsychology and an expert in occupational therapy and assistive technology testified in support of Parent’s position.^[2]

FINDINGS AND CONCLUSIONS

The purpose of the IDEA is to ensure that students with disabilities have a free, appropriate public education that emphasizes services designed to meet their unique needs, and prepare them for further education, employment and independent living. 20 USC 1400(d)(l)(A)-(B).

A FAPE is offered to a student when (a) the Department complied with the procedural requirements set forth in the IDEA, and (f) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. (Bd. Of Educ. v. Rowley, 458 U.S. 176, 206, 207 [1982]).

An appropriate educational program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides for the use of appropriate special education services. (Application of a Child with a Disability, Appeal No. 04-046; The IDEA requires that the CSE include not less than one regular education teacher of such child (if the child is, or may be, participating in the regular education environment) and not less than one special education teacher, or where appropriate not less than one special education provider of such child (20 U.S.C.§ 1414[d][1][B).

Not all procedural errors render an IEP legally inadequate and result in the denial of a FAPE. The procedural error must either 1) impeded the student’s right to a free and appropriate public education, 2) significantly impeded the parents’ opportunity to participate in caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also Matrejek v. Brewster Cent. Sch. Dist., 2007 WL 210093, at *2 [S.D.N.Y. Jan. 9, 2007]). Application of a Child with a Disability, Appeal No. 07-007.

The appropriate education mandated by the IDEA does not require states to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

The burden of proof is on the school district during an impartial hearing, except that parents seeking tuition reimbursement for unilateral placement have the burden of proof regarding the appropriateness of such placement. Educ. Law 44049l09c); M.P.G. v. New York City Department of Education (SDNY 2010).

Parent in their due process complaints enumerates DOEs failure to provide FAPE during the 2020-2021, 2020-2022, 2022-2023 and 2023-2024 school year. Parent had several witnesses who addressed the inappropriateness of the recommended programs and placements. DOE did not cross-examine any of the Witnesses. Parent submitted evaluations which all establish that Student is below grade level in multiple areas. DOE did not submit any evaluations to dispute the independent evaluations. I find DOE failed to provide Student with a FAPE for the 2020-2021, 2020-2022, 2022-2023 and 2023-2024 school year school year

COMPENSATORY RELIEF

Once it has been determined that a student has been denied a FAPE, hearing officers have broad equitable powers to fashion a remedy that is appropriate to address the student’s needs, based upon the unique facts of the case. See SRO 08-052, at pp. 17-18; see also Student

X. v. N.Y.C. Dep't of Educ., 2008 VT 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one).

Given the circumstances, the only remaining issue for the hearing officer is the matter or relief. The DOE’s burden of proof and persuasive applies to every contested issue in the hearing, including the appropriateness of compensatory relief.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. (Wagner v. Canasota, 979 F. Supp. 147 [N.D.N.Y. 1997])

With respect to the number of hours a one-to one calculation is not required and most courts seek to ascertain the child’s needs at the time the relief is sought. See, e.g., Reid ex rel. Redi V. District of Columbia, 401 F.3d 516 (C.AD.C. 2005).

Any request for compensatory education must be balanced with the individual needs and age of Student. There is a strong likelihood that next year Student will be in a different school. Student should have time for socializing, extra-curricular activities and leisure time.

DOE is not required to “maximize the potential of handicapped children”. Walczak v. Florida Union Free School District, 142 F. 3d 119 (2d Cir. 1998) (citing Rowley), An appropriate public education under IDEA is one that is “likely to produce progress, not regression” Id. (citing Cypress-Fairbanks Indep. Sch. Dist. v. Michael F. 118 F. 3d 245 248 (3d 245, 248, (3d Cir. 1997).

It is noted that many of the recommendations and evaluations are from the agency that will be providing the compensatory services. The occupational therapy evaluation and speech language evaluation were completed by ELS. (Tr. 107) I don’t doubt the sincerity of any witness but there is an obvious financial gain from maximizing the number of services.

Parent requests approximately sixteen hundred hours of compensatory services in addition to a non-public school. I find this to be excessive. I am unable to find that all of Student’s difficulties are a result of the denials of FAPE.

REQUEST FOR NON-PUBLIC SCHOOL

Dr. REDACTED conducts neurological evaluations at REDACTED Center. She was qualified as an expert with no objections from the DOE. (Tr. 65)

She conducted a neuropsychological evaluation (Exhibit K) Student has a learning disability. He has mild to moderate inattention. (ADHD) She described Student has having a “mild to moderate” language disorder. (Tr. 68) She later described him as having “a very serious language disorder” (Tr. 74)

She explained that both his ADHD and language disorder significantly interfere with his ability to function in a classroom. He has a reading disorder, a math disorder and an order of written expression. (Tr. 68)

She explained that Student does not learn from his surroundings. His ability to pay attention is very impaired. He has a serious problem in terms of his ability to understand. His oral expression is consistently impaired in terms of his proficiency. His vocabulary is consistently impaired. She explained that Student has a very serious inability to pay attention. She opined that he is not learning in the classroom. (Tr. 74)

She opined that Student requires a small class with more teachers who are trained to help a child with his attention and language disorder. She opined that a 12:1 program does not have enough teachers. She recommended a non-public New York State approved non-public school. (Tr. 82)

Speech pathologist agreed that Student requires a small specialized class in a non-public school. (Exhibit S)

Parent testified that Student has not made any progress over the past several years and has actually regressed. (Tr. 123)

Director of REDACTED opined that Student definitely needs a non-public school. (Tr. 112)

I find that matter should be deferred to CBST to locate a non-public school. There were very specific recommendations of what the program should entail. It is not my role to specify the specifics of a program or IEP. There are a team of members who have expertise in various fields. The CSE should reconvene to consider all recommendations in determining an appropriate program. Any request for specific recommendations to be placed on the IEP is denied. I consider the deferral to CBST a substantial portion of the compensatory relief.

REQUEST FOR REMEDIATION

Neurologist recommended an intensive remediation program with one- to- one tutoring after school in reading, writing and math. (Exhibit K) REDACTED created a compensatory service plan for Student. (Exhibit S) Neurologist agreed with the recommendation made by the director of REDACTED that Student receive 966 hours of intensive individualized academic remediation. (Exhibit (Tr. 84) Neurologist agreed that Student was three to four years behind and explained that two hundred hours is required to raise student to grade level. (Tr. 84) She has other students who receive services from ESL. (Tr. 82)

I find that Student should receive individual tutoring but find the number of requested hours requested is excessive.

SPEECH AND LANGUAGE THERAPY

The director of REDACTED recommended speech and language compensatory services in addition to the school program. A speech and language evaluation was conducted (Exhibit J) and the recommendation was based on the present levels of performance and identification of Student’s deficits. They recommended 184 hours of speech/language therapy. I find Student is entitled to a bank of hours but the number of requested sessions is excessive.

COUNSELING

Clinical Social worker and director of REDACTED recommended counseling and a bank of 138 hours. Neurologist opined parent training would be very helpful. (Tr. 86) She agreed with the recommendation.

Student was described as “not necessarily feeling terrible about himself, but he is not as confident as she would expect given his age. (Tr. 106) I find Student is entitled to some counseling but the amount requested is excessive. Parent and counselor may determine if sessions should be used for individual counseling and/or Parent training.

OCCUPATIONAL THERAPY

REDACTED is an occupational therapist and assistive technology practitioner. She is the co-author of compensatory service plan. (Exhibit S) She collaborated with the occupational therapist that evaluated Student. (Tr. 92)

An occupational therapy evaluation was conducted. The therapist recommends individual occupational therapy once a week for 45 minutes and once a week for forty-five minutes in a group. Student had not received occupational therapy. They recommended 184 hours of compensatory therapy services based on his deficits that he currently presents with and his current level of function. (Tr. 101) I find Student is entitled to a bank of hours but the amount is excessive.

SENSORY BASED FEEDING THERAPY

Witness recommended 92 hours of Sensory Based feeding therapy. An independent evaluation will be conducted. (see evaluations) The purpose of the evaluation is to help determine Student’s needs. I find it premature and find no need to predict in advance the hours that Student requires. Parent should share the results of the evaluation with the CSE. CSE should reconvene and consider the results of the evaluation and provide Student with feeding therapy if needed.

ASSISTIVE TECHNOLOGY

Witness recommended 46 hours of assisted technology instruction for Student and 46 hours for Parent training. An independent evaluation will be conducted. (see evaluations) The purpose of the evaluation is to help determine Student’s needs. It has already been acknowledged by the DOE that Student requires assistive technology. She explained that Student has very limited or no knowledge of software that would be recommended. She opined that Student would require ongoing training to access device. They also recommended a bank of hours for Parent. I find that Student will require some instruction to be able to access the device. It is not yet known what device Student will have and if it will require on-going instruction. Parent can share the evaluation with CSE and they shall reconvene to consider what Student will require with regards to training. Student did not have a device and I find no grounds to award compensatory training.

EVALUATIONS

A parent has the right to request an independent educational evaluation at public expense if the parent disagrees with the school district’s evaluation. 34 CFR 300.502(b)(1): 8 NYCRR 200.5(g).

If a parent requests an IEE at public expense, the school district must without any unnecessary delay, either (1) initiate a hearing under 34 CFR 300.507 to show that its evaluation is appropriate, or (2) ensure that an IEE is provided at public expense.

New York State regulations reflect the federal regulations: “If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either ensure an independent evaluation is provided at public expense or file a due process complaint notice to request a hearing to show that its evaluation is appropriate or that the evaluation obtained by the Parent does not meet the school district criteria.” 8 NYCRR 200.5(g)(1)(iv).

ASSISTIVE TECHNOLOGY EVALUATION

DOE had conducted an assistive technology evaluation. (Exhibit H) DOE did not defend the evaluation. REDACTED opined that it was not a comprehensive evaluation. She explained that it failed to evaluate Student in all areas of deficit. She explained the important to address all areas in order for him to be able to access his curriculum. (Tr. 94) She recommended that Student have a comprehensive assistive technology evaluation. (Tr. 95)

Neurologist recommended an assistive technology evaluation. (Exhibit K)

I find Parent is entitled to an independent evaluation. Sensory Based Feeding Evaluation Occupational therapist evaluated Student in which he demonstrated moderate difficulties across several realms one of them being taste and smell. Parent reported significant difficulties with his ability to tolerate a range of food. Student self-reported difficulties with the sensations of food which she explained ties in with the dysregulation of the central nervous system. REDACTED explained that it impacts his ability to focus. (Tr. 95-96) She recommended a sensory based feeding evaluation. Neurologist also recommended a feeding evaluation. I find Parent is entitled to an independent sensory based feeding evaluation.

ADDITIONAL EVALUATIONS

I find no grounds for a transition/vocation education evaluation at this time.

I find no grounds to a reevaluation in two years.

REDACTED RATES

REDACTED has a full-service menu of services. Academics include Orton-Gillingham instruction, and remediation across content areas including reading, writing, and mathematics. They have occupational therapy, speech therapy, counseling, sensory based feeding, sensoryintegration therapy and assistive technology. (Tr. 106-107)

Director of REDACTED testified that their rate for the evaluations is $2, 200. They charge $175 an hour for academic remediation, $155 for counseling and $185 for Speech language therapy, occupational therapy, assistive technology evaluation and sensory-based feeding therapy. She testified that they are all within the range of rates charged for these services in New York City. They have previously been previously paid by the district through the implementation unit. (Tr. 114-116). There were no rates offered by DOE. I find that the rates are appropriate.

In summary I find that DOE failed to provide a FAPE to Student for the 2020-2021, 2021-2022, 2022-2023 and 2023-2024 school year. I find that the Central Based support Team should location an appropriate NPS. I find CSE should reconvene to consider all the evaluations and create an appropriate IEP. I find that Student is entitled to compensatory services for tutoring, occupational therapy, speech and language therapy and counseling. I find Student is entitled to an independent assistive technology evaluation and sensory feeding evaluation. I find no grounds to award compensatory services prior to the evaluations. I find no grounds to award a vocational evaluation or updates every two years.

ORDER

CSE shall reconvene withing 20 days of this order to consider all evaluations and create an IEP.

CSE shall defer matter to Central Based Support Team to locate a nonpublic school placement for Student. DOE shall provide compensatory services: - 700 hours of Academic instruction at the rate of $175 an hour - 48 hours of counseling to be used for individual counseling and or family therapy as determined by Parent and counselor at the rate of $155 an hour - 120 hours of speech/language therapy at the rate of $185 an hour - 120 hours of occupational therapy at a rate of $185 an hour DOE shall fund independent evaluations - An assistive technology evaluation at a rate of $2200 by evaluator of Parent’s choice upon evidence of evaluation, report and invoice - A Sensory Based Feeding Evaluation at the rate of $2200 by evaluator of Parent’s choice upon evidence of evaluation, report and invoice.

The request for revaluation in two years is denied. The request for transition/vocation education evaluation is denied.

All compensatory services are valid for three years from the date of this decision.

Sharyn Finkelstein November 19, 2023

PLEASE TAKE NOTICE

Within 40 days of receipt of this decision, the parent and/or the New York City Department of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act.

“The notice of intention to seek review shall be served upon the school district not less than 10 days before service of a copy of the petition for review upon such school district, and with 25 days from the date of the decision sought to be reviewed. The petition for review shall be served upon the school district within 35 days from the date of the decision sought to be reviewed. If the decision has been served by mail upon petitioner, the date of mailing and the four days subsequent thereto shall be excluded in computing the 25- or 35-day period.” (8NYCRR279.2 [b]) Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

EVIDENCE ENTERED INTO THE RECORD

DEPARTMENT OF EDUCATION

No evidence

PARENT

A Amended demand for due process hearing 6/29/23 13

B Demand for due process hearing 1/4/23 11

C. IEP 5/10/23 (31 pages)

D. IEP 5/13/22 (6 pages)

E. IEP 5/19/21 (17 pages)

F. IEP 10/4/21 (21 pages)

G. IEP 10/11/19 (26 pages)

H. New York City DOE assistive technology evaluation 3/9/23 (14 pages)

I. Occupational therapy evaluation 3/20/23 (8 pages)

J. Speech-Language evaluation 3/20/23 (31 pages)

K. Neuropsychological evaluation 3/19/23 (28 pages)

L NYC DOE report card for term 1 3/20/21

4/19/21 2

M. NYC DOE psychoeducational evaluation 10/4/19 (4 pages)

N. NYC DOE report card 2 term 12019/2020 2/5/20 (2 pages)

O. NYC DOE Speech-language evaluation 8/30/19 (4 pages)

P. NYC DOE teacher report 9/13/19 (8 pages)

Q. Parent disagreement with program and evaluation 1/3/23 (3 pages)

R Parent request for educational records 3/6/20

S. Compensatory service plan 8/31/23 (30 pages)

T Resume of REDACTED N/A 2

U Resume of REDACTED N/A 2

V Resume of REDACTED N/A 2

W Curriculum vitae of Dr. REDACTED N/A 2

X Resume of REDACTED N/A 1

Footnotes

[1] Toni Lee Mincieli appeared as attorney for DOE on February 6, 2023

[2] There was no objection from the DOE in admitting witnesses as experts the decision-making process regarding the provision of a free and appropriate education, or 3)