New York City Department of Education, Impartial Hearing Decision

Case Number: 594612 – NYC: 244653

FINDINGS OF FACT AND DECISION

I. Introduction and Procedural History

On January 9, 2023, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of [REDACTED] ("Student") brought by his Parent (“Parent” or “Parents”). A pre-hearing conference was held on January 24, 2022, status conferences were held on March 20, 2023, April 21, 223 and May 11, 2023 and hearings were held on February 6, 2023 and June 13, 2023, and The [REDACTED] (“[REDACTED]”) was represented by [REDACTED], Esq., and Parent was represented by [REDACTED], Esq. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective June 13, 2023.

II. Background

Parent filed a due process complaint on January 6, 2023, alleging a denial of Student’s right to a Free and Appropriate Public Education (“FAPE”) for the 2021-2022 and 2022-2023 school years. Parent’s request for independent education evaluations was granted pursuant to an interim order. Parent’s remaining requests are for compensatory education and for [REDACTED]. The [REDACTED] did not put on a case. Parent provided her direct testimony by affidavit, and the [REDACTED] cross-examined the witness. (Tr. 48, et seq. and Exh. K). Case Number 244653 4

III. Discussion

FINDINGS OF FACT AND DECISION

An Individualized Education Program (“IEP”) meeting was held on May 7, 2021. (Exh. B). The next IEP meeting was held on May 9, 2022 ^[1]. (Exh. C). The [REDACTED] did not defend its IEP’s.

An independent neuropsychological evaluation was conducted on April 28, 2023. (Exh. G). Student was found to be in the average range in terms of cognitive abilities, although significant variability was noted. (Exh. G, page 10). The evaluator diagnosed Student with Level 1 Autism Spectrum Disorder, without accompanying intellectual impairment but with mild accompanying pragmatic language impairment, as well as Attention Deficit/Hyperactivity Disorder. (Exh. G, page 19). The evaluator provided lengthy recommendations including the development of a new IEP reflecting the addition of an autism spectrum disorder, including new objectives and goals to address pragmatic language impairments, the addition of social/emotional goals, daily SETSS services, and individual and group counseling weekly. The evaluator notes that Student’s placement in a general education class with only ICT and HES services has resulted in stress and anxiety. (Exh. G, page 19). The evaluator also recommended “two hours per week of academic tutoring with a learning disability for two years on a 12-month basis due to his being provided with insufficient evaluations and services. This amounts to a bank of approximately 184 hours.” (Exh. G, page 21).

An independent assistive technology evaluation was conducted on March 24, 2023. (Exh. H). The evaluator found that, based on Student’s “severe challenges related to his ability to be independent with organization, as well as difficulties with attention… tools need to be put into place to support [Student]”. (Exh. H, page 11). The evaluator recommended a Microsoft Surface 3, a variety of applications and accommodations. (Exh. H, page 12). The evaluator also recommended “fifty hours of training to ensure confident access to these tools”. (Exh. H, page 13).

An independent vocational assessment was conducted on March 24, 2023. (Exh. I). The evaluator made recommendations including working with a transition counselor, continued 5 development of his computer skills, working with an academic counselor, travel training, as well as executive functioning strategies. (Exh. I, pages 19-21).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The 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, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “to 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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought 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) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; 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, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations 6 omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)) and provides for the use of appropriate special education services. (See 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the [REDACTED] to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The [REDACTED] did not submit evidence, provide testimony, or otherwise argue that the IEP provided FAPE for the 2021-2022 and 2022-2023 school years. (Tr. 28). Thus, the [REDACTED] has not met its burden of proof and Parent is entitled to relief.

RELIEF REQUESTED

COMPENSATORY EDUCATION SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarg ed City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of compensatory education] must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Under the 8 qualitative approach, the examination should focus on the child’s needs; “some Students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Parent requests 184 hours of compensatory academic tutoring, for which Parent provides evidence to support. (Exh. G). Further, Parent requests fifty hours of compensatory assistive technology training. (Tr. 65). The [REDACTED] did not object to these requests and Parent has provided uncontroverted evidence that Student is entitled to these compensatory services.^[2] (Exh. G and Therefore, I order the [REDACTED] to provide a bank of 184 hours of compensatory education, as well as fifty hours of compensatory assistive technology, to be provided by a licensed and/or certified provider of Parent’s choice at a rate not to exceed reasonable market rate.

ASSISTIVE TECHNOLOGY

Parent requests funding for a Microsoft Surface computer as well as appropriate software and applications. (Exh. A). This uncontroverted request was supported by the evidence. (Exh. H). Therefore, I order the [REDACTED] to fund the requested Microsoft Surface computer and applications as recommended by the independent assistive technology evaluation. (Exh. H, pages 11-13).

DEFERRAL TO THE CENTRAL BASED SUPPORT TEAM

Finally, Parent requests that the CSE team reconvene and defer Student to the Central Based Support Team to locate a New York State Approved non-public school. (Tr. 44, 64 and Exh. A, page 5). In support of this request, Parent has provided the independent evaluation of the neuropsychologist. (Exh. G). Clearly, the present placement is not appropriate. However, there 9 is nothing in the record to support Parent’s request for a non-public school, as Parent’s own evaluator recommended daily SETSS and the addition of goals and counseling to address Student’s needs3. (Exh. G, 18-22). There is nothing in the report that recommends deferral to the CBST or refers to a private school placement. As such, I decline to order the [REDACTED] to defer Student to the CBST. However, the [REDACTED] failed to defend its recommendations for the two IEPs at issue, and failed to provide any evidence that would contradict the recommendations made by the evaluators. Therefore, I order the [REDACTED] to reconvene the CSE within fourteen days of receipt of this Findings of Fact and Decision, to adopt the recommendations of the independent evaluations.

3 While the evaluator concluded that the present placement in an ICT class with HES services is not appropriate and has caused stress and anxiety, there is nothing in the evaluation that recommended a private school placement. (Exh. G, page 19). 10

IV. Order

IT IS THEREFORE ORDERED THAT:

1. The [REDACTED] failed to provide Student a Free and Appropriate Public Education for the 2021-2022 and 2022-2023 school years.

2. The [REDACTED] shall reconvene the Committee on Special Education within fourteen (14) days of receipt of this Findings of Fact and Decision to adopt the recommendations contained in the independent neuropsychological, independent vocational assessment and independent assistive technology evaluations.

3. The [REDACTED] shall provide a bank of compensatory education, including 184 hours of compensatory education, to be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

4. The [REDACTED] shall provide the assistive technology recommended by the Independent Assistive Technology Evaluation, as well as a bank of compensatory education, including fifty hours of compensatory Assistive Technology training, to be provided by a licensed and/or certified provider of Parent’s choice, at a rate not to exceed reasonable market rate.

Dated: June 30, 2023

AUDREY DANIEL, ESQ.

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. 12

EXHIBITS ADMITTED AT HEARING

[REDACTED]

None. Parent Exhibit Name Date Pages

Exhibit Name Date Pages

A Parent’s Impartial Hearing Request 01/06/23 6 B Individualized Education Program 05/07/21 19 C Individualized Education Program 05/09/22 19 D School Based Assistive Technology Assessment 04/27/21 4 E Letter of Pediatric Neurologist 09/27/21 1 F Rate Sheets Undated 3 G Independent Neuropsychological Evaluation 04/28/23 26 H Independent Assistive Technology Evaluation 03/23/23 13 I Independent Vocational Assessment 03/24/23 23 J Individualized Education Program 05/09/23 22 K Affidavit of [REDACTED] 06/08/23 2

Impartial Hearing Officer

None.

Footnotes

[1] A meeting was held on May 9, 2023. (Exh. J). Parent is not challenging the IEP in this due process complaint but submitted it to “show that even with the new evaluative information, the DOE has failed to take any action to help the student. (Tr. 43).

[2] The DOE initially argued that Parent improperly failed to have the evaluator testify at the hearing. Parent disagreed. The parties were provided an opportunity to provide case law in support of their positions during a subsequent hearing date. The DOE did not, however, Parent provided numerous SRO decisions in support of her position. (Tr. 59-63). Application of a Student with a Disability, No. 21-009.