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CASE NUMBER: 594970 - NYC: 244876
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: 8-15-23; 9-12-23
Actual Record Close Date: 10-20-23
Hearing Officer: Steven P. Forbes
NAMES AND TITLES OF PERSONS WHO APPEARED
SEPTEMBER 12, 2023
For the Student:
[REDACTED]
For the Department of Education:
[REDACTED]
ISSUES
This matter comes before the undersigned Impartial Hearing Officer (“IHO”)
through the Parent’s Due Process Complaint (“DPC”) filed on or about January 12, 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 then filed a second DPC on July 13, 2023, in which the Parent asserted that the District failed to provide a FAPE during the 2023-2024 school year. The Parent requested relief in the form of compensatory education and services, funding for public transportation for services not rendered in the home and a CSE deferral to the CBST together with a direction that the District reconvene the CSE.
PROCEDURAL HISTORY
The undersigned Hearing Officer was appointed to the initial DPC on January 24, 2023. The undersigned was appointed to the Parent’s second DPC on July 14, 2023. An order consolidating these cases was issued on July 18, 2023. A hearing regarding the Parent’s requests for relief was held on August 15, 2023, and September 12, 2023. The District appeared for the hearing and but did not present either evidence or witnesses. The Parent presented twenty-three exhibits, which were admitted into evidence, and three witnesses, via affidavit.[1] The District waived its right to cross-examine all the witnesses but one. The record closed on October 20, 2023. There were seven extensions of the compliance date to permit the completion of independent evaluations. At the conclusion of the hearing, the District did not oppose the Parent’s request for relief except to the extent that the District opposed Parent’s request for a deferral of the Student’s case to CBST. In addition, the District, which presented no witnesses or argument on the issue of FAPE has conceded, and I so find, that the District did not, in fact, afford the Student a FAPE for the 2020-2021, 2021-2022, 2022-2023, and 2023-2024 school years.
FINDINGS OF FACT
As stated, the District did present any evidence in this matter and only nominally challenged a portion of the Parent’s evidence. Moreover, despite the fact that the Parent introduced multiple IEPs that the District developed for the Student over the course of multiple years, the District did not present any evidence or witnesses to defend any of these IEPs. By the same token, the District did not meaningfully challenge any of the extensive affidavit testimony proffered by the Parent that detailed the violations of the Student’s right to a FAPE that the Student has endured over the course of several years during which the District essentially ignored the Student’s needs and Parent’s repeated requests for assistance. By the same token, the District did not meaningfully challenge the recommendations made by the witnesses.
As a result of the above, there is no question that the District denied the Student a FAPE for the 2020-2021, 2021-2022, 2022-2023 and 2023-2024 school years.
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 evidence or witnesses that demonstrated that they had provided the Student with the services to which he was entitled. Moreover, it should have been beyond obvious that the Student was not making sufficient progress. Rather than address this issue, the District simply continued to recommend the same program year after year. 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, 2022-2023, and 2023-2024 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 anywhere near the level of services which he required. Based on the evidence presented by the Parent, it is clear that the Student is entitled to compensatory services.
As to the District’s objection to a direction that the undersigned not issue an order for a specific placement, the District and/or the CSE has had multiple opportunities to create an appropriate program and not only have they not done so, but the District did not even bother to defend the programs it did create. In the same vein, the District did not offer any evidence (or argument, for that matter) as to the reasons it ignored the psychologist’s recommendation that the Student be placed in a State approved non-public school. Contrary to the argument proffered by the District, by issuing such an order, the undersigned is not substituting his judgment for that of the CSE. Rather, the order is to defer the Student’s case to the CBST is based upon evaluative data and an expert opinion that the District has continuously, without explanation, ignored.
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, 2022-2023, and 2023-2024 school years.
ORDER
Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:
A) That the Student entitled to compensatory education and services as follows:
1) A bank of 700 hours of Intensive Individualized Academic Remediation and/or 1:1 tutoring at the rate of $150.00 per hour; and,
2) A bank of 108 hours of Speech and Language Therapy. There shall be no expiration date on the above banks of compensatory education and services. The above services shall be provided by providers of the Parent’s choosing and the providers shall, unless otherwise specified, be compensated by the District at a reasonable market rate. To the extent that the services referenced above cannot be provided in the Student’s home, the District shall fund public transportation for the Student and one adult to travel to and from the location where the services are to be rendered.
B) The District shall forthwith reconvene the CSE to develop a program recommendation in a small class in an New York State approved program and/or defer the Student’s placement to the CBST to address the Student’s learning, social, emotional and behavioral needs. When the District reconvenes, it shall also make a provision for Parent Training and Counseling.
SO ORDERED:
DATED: October 21, 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. DPC
C. Letter
D. IEP
E. PWN
F. Teacher Report
G. Progress Report
H. Progress Report - Counseling
I. AT Evaluation
J. FBA and BIP
K. Partial Resolution Agreement
L. Letter from Provider
M. Letter from School – Promotion in Doubt
N. SLT Evaluation
O. IEP
P. Report Card
Q. Amended IEP
R. Educational Evaluation Report
S. Affidavit - SETSS Provider
T. IEP
U. SLT Evaluation
V. Affidavit – Psychologist
W. Affidavit – Parent
Footnotes
[1] The list of exhibits is attached.