New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 594759 - NYC: 244714

FINDINGS OF FACT AND DECISION

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

Date of Birth: [REDACTED]

District: [REDACTED]

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

Hearing Dates: 6-22-23

Actual Record Close Date: 6-29-23

Hearing Officer: Steven P. Forbes

NAMES AND TITLES OF PERSONS WHO APPEARED

JUNE 22, 2023

For the Student:

[REDACTED]

For the Department of Education:

None

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”)

through the Parent’s Due Process Complaint (“DPC”) filed on or about January 10,,

2023. In the DPC the Parent asserted that the District failed to provide a free appropriate public education (“FAPE”) during the 2020-2021, 2021-2022 and 2022-2023 school years for failure to provide an appropriate program. The Parent requested relief in the form of compensatory education and services.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on February 2, 2023. A hearing regarding the Parent’s request for compensatory education and services was held on June 22, 2023. The District did not appear and therefore presented no evidence or witnesses. The Parent presented thirty-four exhibits, which were admitted into evidence and the record, and five witnesses, via affidavit.^[1] The District waived its right to cross-examine the witnesses. The record closed on June 29, 2023. There were three extensions of the compliance date. At the conclusion of the hearing, the District did not oppose the Parent’s request for relief. In addition, the District, which presented no witnesses or argument on the issue of FAPE has conceded that the District did not, in fact, afford the Student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years.

FINDINGS OF FACT AND 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, Forest Grove v. T.A., 129 S. Ct. 2484[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.

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.

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, the District did not present any witnesses that demonstrated that they had provided the Student with the services to which she was entitled. The District has therefore conceded, for all intents and purposes, and I so find, that it denied the Student a FAPE over the course of the 2020-2021, 2021-2022 and 2022-2023 school years by failing to develop an appropriate IEP for the Student, by failing to recommend an appropriate program for the Student and/or by failing to implement their own IEP. It is similarly conceded that the Student was not provided with the level of services to which he was entitled under the IESP due to the Parent’s difficulties in locating a provider. Based on the evidence presented by the Parent, it is clear that the Student is entitled to compensatory services.

DECISION

Based on a review of the record and the details mentioned above, I find that the District failed provide FAPE to the Student for the 2020-2021, 2021-2022 and 2022-2023 school years.

ORDER

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

A) That the District shall forthwith, upon reasonable notice to the Parent, reconvene the CSE to create a program for the Student for the 2023-2024 school year. At that meeting, the District is directed to specifically consider the independent evaluations obtained by the Parent (neuropsychological, auditory processing, autism skills). The District is further directed to create a program for the Student that includes an extended school year. Said program shall also include a home-based program (5 hours per week of ABA services with 2 hours per month of BCBA supervision and 4 hours per week of 1:1 parent counseling and training) until such time as the District both defers the Student’s placement to the CBST and that an appropriate state-approved non-public school that specializes in students with autism can be located for the Student. Until such time as an appropriate non-public school can be located for the Student, the Student’s home-based ABA services, BCBA supervision and parenting counseling shall be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at a reasonable market rate.

B) Until such time as the District locates an appropriate state-approved non-public school for the Student, the District shall fund 30 hours per week of push-in ABA services in the Student’s current educational setting. Said push-in ABA services shall be provided by a BCBA of the Parent’s choosing with said BCBA to be compensated by the District at a reasonable market rate.

C) The District shall fund the following independent evaluations by providers of the Parent’s choosing with said providers to be compensated by the District at a reasonable market rate:

1) Occupational Therapy; 2) Speech and Language Evaluation; and, 3) Assistive Technology Evaluation.

Upon completion of those evaluations, the District shall reconvene the CSE, upon reasonable notice to the Parent, to consider the results of the aforementioned evaluations and to determine what, if any, modifications need to be made to the Student’s IEP.

D) It is Ordered that the Student shall be entitled to the following: 1) A bank of 460 hours of compensatory 1:1 ABA services, with 46 hours of BCBA supervision; 2) A bank of 138 hours of compensatory parent counseling and training; 3) A bank of 138 hours of compensatory speech and language therapy; 4) A bank of 138 hours of occupational therapy; 5) A bank of 46 hours of assistive technology instruction; and, 6) A bank of 23 hours of assistive technology parenting training.

It is further Ordered that the above services are to be provided by a provider of the Parent’s choosing with said provider to be compensated by the District at market rate. The above services shall be utilized on or before August 31, 2026.

SO ORDERED:

DATED: June 29, 2023

_Steven P. Forbes____

Steven P. Forbes

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 List

None

Parent Evidence List

A. DPC

B. IEE Request Letter

C. Affidavit – Neuropsychologist

D. Affidavit – SL Therapist

E. Affidavit – BCBA

F. IEP

G. IEP

H. IEP

I. IEP

J. Compensatory Service Plan

K. Neuropsychological Evaluation

L. Autism Skills Assessment

M. Auditory Processing Evaluation

N. DOE SL Evaluation

O. DOE OT Evaluation

P. DOE AT Evaluation

Q. DOE Report Card

R. Progress Report

S. Mental Health Center Report

T. DOE i-Ready Diagnostic

U. DOE Educational Evaluation

V. DOE Report Card

W. DOE i-Ready Diagnostic – Math

X. DOE i-Ready Diagnostic – Reading

Y. Parent Request to Evaluate

Z. PWN

AA. Parent Request to Evaluate BB. Parent Request to Evaluate

CC. Resume

DD. CV

EE.Resume FF. Resume GG. Affidavit HH. Affidavit

Footnotes

[1] The list of exhibits is attached.