New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 594403 - NYC: 244497

REDACTED

FINDINGS OF FACT & DECISION

Case No.: 244497

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

Date of Birth: [Redacted]

District: [Redacted]

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

Date of Complaint: January 3, 2023

Hearing Dates: May 2, 2023

May 15, 2023

June 21, 2023

July 26, 2023

Actual Record Close Date: August 18, 2023

Decision Date: September 1, 2023

Hearing Officer: Vanessa M. Gronbach, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 2, 2023

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 15, 2023

For the Student:

[Redacted], Esq., Parent Attorney

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], CPSE Administrator

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 21, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Esq., Parent Attorney

[Redacted], Speech Language Pathologist

[Redacted], Director and Special Education Teacher

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], Esq., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 26, 2023

For the Student:

[Redacted], Esq., Parent Attorney

[Redacted], Parent Student

[Redacted], Interpreter

For the Department of Education:

[Redacted], Esq., District Representative

[Redacted], Esq., District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about January 3, 2023, regarding the 2022/23 school year (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to provide an appropriate program and placement (P-Ex. A). The Parent’s request for relief included special education teacher support services (“SETSS”) and/or funding for such SETSS services and related services (P-Ex. A). At the time of the hearing, the Parent withdrew their request for physical therapy and occupational therapy and limited their request for relief to SEIT and speech language therapy.

PROCEDURAL HISTORY

The undersigned was appointed as hearing officer in this matter on January 31, 2023. A prehearing conference was held on February 10, 2023, to discuss the issues in the case (See, Transcripts).^[2] The hearing began on May 2, 2023, and concluded in four days, on July 26, 2023. The District presented one witness and documents, which were admitted into evidence. The Parent presented exhibits^[3] and two witnesses, one by affidavit. The District then called the Parent as a witness on its rebuttal case. An interpreter was used for the Parent’s testimony. The record closed on August 18, 2023. There were six extensions of the compliance timelines to allow for investigation and then to accommodate witnesses.

FINDINGS OF FACT

The Student is a [Redacted] year old student who was on home instruction during the 2022/23 school year (P-Ex. A). The Student is Diagnosed with [REDACTED] and began receiving special education services through Early Intervention (T. 54-55; D-Ex. 1). The Student presents with significant delays in his cognitive, language, motor, adaptive living and social emotional skills (D-Ex. 1-5).

The District’s CPSE administrator testified that the Committee on Preschool Special Education (“CPSE”) holds a meeting to develop an IEP prior to a child’s third birthday so that the child can continue to receive early intervention services past their third birthday (T. 51, 55). In this case, the Student’s birthday is in the Spring and therefore he was able to receive Early Intervention through the end of August with his CPSE IEP set to begin in September 2021 (T. 55, 56). During the 2021/22 school year, the Student received SEIT services because the CPSE did not find a placement for the Student (T. 65). According to the Administrator, the Parent was happy with that arrangement because she did not want the Student to attend school (T. 65).

In April 2022, the CPSE Administrator developed an IEP for the Student for the 2022/23 school year, starting in July 2022 (T. 56-59; D-Ex. 1). The Student had been recommended for a 6:1:2 special class program with related services, and a location was secured that could provide bilingual services (T. 59-60). The CPSE administrator testified that at the time of the meeting, the Parent agreed and signed for consent for the services (T. 59). The Parent testified that she had explained at the meeting that the Student was not ready to walk independently or eat independently, and therefore not ready for school (T. 193-194).

At some point after the April 2022 IEP meeting, the CPSE administrator testified that she was contacted to request that the Student’s IEP recommendations be changed from the 6:1:2 program to SEIT services because the Parent did not want to send the Student to school (T. 61-62). The Administrator explained that the District required justification from a doctor to change the IEP and in July she received a letter from a doctor (T. 61-62). On July 7, 2022, she sent the Parent the amendment form to change the Student’s services from a special class to SEIT and related services (T. 62; D-Ex. 6). The Parent signed the amendment, and the IEP was amended to recommend SEIT 10 hours/week with related services of Speech, OT and PT individually 3x30 minutes per week (T. 62-63; D-Ex. 2; D-Ex. 6). The District contracted with an agency to start the services on July 11, 2023 (T. 62-63; D-Ex. 5). The Administrator explained that the SEIT agency is the coordinator of any related services and that the SEIT provider speaks to the related service providers to coordinate services (T. 67; D-Ex. 5). To the best of her knowledge a clinic was made available for the Student for the related services however the Parent did not bring him to the clinic for services (T. 68). The Parent testified that the agency did not provide any services for the Student and was unfamiliar with any clinic (T. 217).

The Parent testified that a SEIT provider went to the house during the summer of 2022 to provide services, but he was not a good fit with the Student (T. 210). The Parent explained that the Student would cry and would not accept the provider despite several attempts (T. 210, 211).

On September 12, 2022, the agency emailed the District indicating that the agency was unable to locate an available provider to accommodate the Student’s mandate and they had made multiple attempts to contact the Parent but did not receive a response (D-Ex. 9). The email asked the District to contact another agency (D-Ex. 9). According to the Parent, because the provider and the Student were not a good fit, she reached out to the agency and told them not to send that provider anymore (T. 211).

On September 14, 2022, the Student was withdrawn from the agency and the Administrator reached out to another agency to provide the services (T. 69; D-Ex. 3). According to the Administrator, the second agency had difficulty connecting with the Parent, but they were eventually able to send another SEIT provider to the Student, however then the Parent “fired” that SEIT (T. 71). The second agency informed the Administrator that the Parent had made allegations about the provider and was upset and did not want the provider to return (T. 72; D-Ex. 4). The second agency did not have anyone else available to provide the Student with the SEIT services (T. 72; D-Ex. 4). The Administrator testified that when a Parent does not make a child available for services, they close the case completely (T. 73, 75; D-Ex. 9). On cross examination, the Administrator testified that she did not recall having a conversation with the Parent or the two agencies as to why the Parent stopped the services or what the allegations were (T. 79-80; 87-88). The Parent testified that the provider from the second agency who went to the home, showed up drunk and she notified the second agency (T. 210). The second agency informed the Parent that they did not have any other providers, could not provide the service and that she should look for one herself (T. 210, 213-214).

The Parent testified that after the second agency, the District contacted her and asked her whether she wanted the Student to attend the school and she explained that the Student was not ready for school and needed the services in the home (T. 234). On September 29, 2022, the District withdrew the Student from special education services (D-Ex. 7).

The Director of the Agency and the Student’s Special Education Teacher testified by affidavit that she began providing services to the Student in January 2023 (T. 150; P-Ex. D). The Speech Language Pathologist (“SLP”) testified that her agency provided the Student with speech services since March 2023 (T. 116-117).

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.”

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 presented a witness who testified regarding the services recommended in the July 7, 2022 IEP. The evidence is clear that the District was obligated to provide the Student with the special education services recommended in the July 2022 IEP, and despite the steps the District took to provide the services in July and September 2022, they ultimately withdrew the Student from the CPSE at the end of September 2022, without justification, therefore denying the Student of a FAPE.

The first agency sent a provider who, according to the Parent, was not a good fit with the Student. The Student would cry the entire time, and despite several attempts, it could not be worked out. The agency, in an email, admitted that it was unable to locate an available provider (D-Ex. 9). The District did secure a second agency who sent a provider to the Student’s home, however the Parent testified that the provider showed up drunk and told the agency to not send that person to her home again. The second agency then informed the District that they did not have anyone else available to serve the Student at home (D-Ex. 4).

Although the Parent had rejected the two providers sent to the home, it was for good cause and that rejection was not a request to discontinue special education services. It was still the District’s obligation to provide the recommended services, not withdraw the Student from special education services as it did in Exhibit 7.

There is no evidence that the District reached out to the agency or the Parent to find out what the issues were with the providers, or that they attempted to contract with another agency for those services. Instead, they relied on two emails, without follow up, and unilaterally discontinued the Student’s services. Based on the evidence presented, I find that the District did not provide the Student with FAPE for the 2022/23 school year.

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 for the SEIT and speech language services missed during the 2022/23 school year and based on the denial of FAPE.

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 2022/23 school year. I further find that the Parent is entitled to reimbursement and/or direct payment for the SEIT and Speech services she secured for the Student during the 2022/23 school year. I further find that the Student is entitled to compensatory services for the missed special education services during the 2022/23 school year. I have considered the Parent’s other requests for relief in the Due Process Complaint and they have been denied for lack of evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered: 1) ORDER THAT, the District shall reimburse the Parent and/or directly pay the Agency/Provider for the SEIT services received by the Student during the 2022/23 school year, at a rate not to exceed $175.00/hour; 2) ORDER THAT, the District shall reimburse the Parent and/or directly pay the Agency/Provider for the Speech Language services received by the Student during the 2022/23 school year, at a rate not to exceed $175.00/hour; 3) ORDER THAT, the District shall provide the Student with a bank of hours for the SEIT and Speech Language therapy sessions missed during the 2022/23 school year.

SO ORDERED

DATED: September 1, 2023

Vanessa M. Gronbach

Vanessa M. Gronbach, 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.

EXHIBITS

DISTRICT EXHIBITS

1. IEP 4/26/22 18 pages District

2. Amended IEP 7/7/22 17 pages District

3. Letter from Agency 1 9/14/22 1 page District

4. Email from Agency 2 refusing services 9/28/22 1 page District

5. SEIT acceptance letter Agency 1 7/8/22 1 page District

6. Waiver to amend IEP 7/8/22 2 pages District

7. Withdrawal of Placement Notice 9/29/22 1 page District

8. Email between Parent and District 7/5/22 1 page District

9. Email between District and Agency 1 9/12/22 1 page District

PARENT EXHIBITS

A. DPC 1/23/23 6 pages

B. IEP-amended 7/7/22 17 pages

C. Quarterly Progress Report 5/1/23 4 pages

D. Affidavit regarding SETSS 5/12/23 1 page

E. Teacher’s Certification undated 1 page

F. Vendor Invoice – Speech 4/28/23 1 page

G. Teacher’s Certification – Speech 6/13/23 1 page

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits.

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

[3] A more detailed list of exhibits is attached.