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CASE NUMBER: 596735 - NYC: 246183
FINDINGS OF FACT AND DECISION
Student’s Name: 1 [REDACTED] (“student”)
Date of Birth: [REDACTED]
School District: NYC # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 02/23/2023
Date(s) of Hearing: 08/16/2023 and 08/22/2023
Actual Record Closed Date: 09/12/2023
Date of Decision: 09/26/2023
Date of Distribution if Different than Decision Date: N/A Hearing Officer: Leah Martin, Esq.
1 Personally identifiable information is attached as Appendix B, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/16/2023
For the Student:
[REDACTED] (“Parent Counsel”), [REDACTED] (“SL Evaluator”)
For the Department of Education:
[REDACTED] (“DOE Representative”), [REDACTED] (“Observing DOE Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/22/2023
For the Student:
[REDACTED] (“Parent Counsel”), [REDACTED] (“Neuro Evaluator”)
For the Department of Education:
[REDACTED] (“DOE Representative”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on February 23, 2023. (Ex. A). 2 In the DPC, Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) and equitable services for the 2021-22 and 2022-23 school years. (Ex. A).
I was appointed to hear the matter on February 23, 2023. On March 27, Parent Counsel appeared virtually for a Pre-Hearing Conference (“PHC”).[3] At the PHC, a schedule was set for the parties’ pendency submissions and a hearing was scheduled. (See PHC Transcript; PHC Summary and Order). Parent also requested and was granted an extension to complete pending independent educational evaluations (“IEEs”). (Id.; Order of Extension). 4 Parent Counsel agreed that if any new issues were raised by the IEE results that were not included in the DPC, they would amend the complaint. (PHC Transcript, p. 8-9). A PHC Summary and Order was sent to the parties and Parent Counsel submitted their pendency documents later that day. (See PHC Summary and Order). A pendency order was issued on April [4]. (See Order on Pendency).
On May [2], Parent Counsel emailed to request that the due process hearing (“DPH”) be adjourned because the IEE reports were not yet complete. (See Adjournment Request Emails). The DPH was converted to a status conference instead of being adjourned. (Id.; SC Transcript 5.11.23). A status conference was held on May 11, during which an extension was jointly requested and granted, and a new hearing date was set. (SC Transcript 5.11.23; Order of Extension2).
On June 1, Parent Counsel submitted their hearing disclosures. On June 6, the undersigned emailed the parties inquiring whether Parent Counsel wished to amend the complaint since there were issues in their evidence regarding the substantive appropriateness of the student’s individualized education services programs (“IESPs”) that were not raised in the DPC. (See Issues Emails). Parent Counsel replied that they wished to adjourn the DPH and amend the complaint. (Id.). On June 8, the parties appeared virtually for what had been scheduled as a DPH but was converted to a status conference. (SC Transcript 6.8.23). The DOE did not object to Parent Counsel’s request to adjourn the hearing, and a status conference was scheduled for discussion on whether the DOE would accept or reject the amended DPC (“ADPC”). (Id.). On June 9, Parent Counsel submitted the ADPC. (See Amendment Emails). The DOE accepted the ADPC (Id.), and the timeline was reset. On July 18, a status conference was held, during which a hearing date was set. (SC Transcript 7.18.23).
A virtual DPH was held on August 16 and 22, 2023. It was a closed hearing. Parent Counsel and DOE Representative were both present. At the DPH, the DOE entered no exhibits and called no witnesses. (Tr. 13-14).[5] Parent entered nine exhibits (A-I) into evidence, including testimony affidavits of two witnesses: “SL Evaluator” (Ex. G), and “Neuro Evaluator” (Ex. H). (Tr. 19-20). Both Parent witnesses gave live cross-examination testimony. There was insufficient time for the testimony of Neuro Evaluator during the first hearing date, so a second date was added. (Tr. 80-83).[6] Oral closing arguments were made on the record. (Tr. 135-147). The record was closed on September 12, after receipt and review of the hearing transcript (see Record Close Email).
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., the New York State Education Law, NYS Educ. Law §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq., and Section 504 of the Rehabilitation Act, 7 29 U.S.C. §794(a).
BACKGROUND
During the school years at issue, the student was in tenth and eleventh grades and classified as a student with other health impairment. (Ex. A-2). Prior to November 2021, the student had been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). (Ex. C-10). In November 2021, the student was also diagnosed with autism, anxiety, and learning disorders in reading and writing. (Ex. C-11). During both school years the student was parentally placed in a regular education program in a non-approved non-public school and had an IESP. (Ex. A-2; E-2).
On February 11, 2021, the DOE convened a meeting of the committee on special education (“CSE”)[8] and developed an IESP for the student, to be implemented between February 2021 and February 2022. (Ex. B-1, 9). The 2/11/21 IESP recommended special education teacher support services (“SETSS”)(five periods per week in a group) with related services of speech-language therapy (“SLT”) (1x40x1 and 1x40 in a group) and counseling (1x40x1). (Ex. B-6). On March 14, 2022, the DOE convened a CSE meeting and developed an IESP for the student, to be implemented starting March 28, 2022. (Ex. D-1, 9).[9] The 3/14/22 IESP recommended the same services with the same frequency and duration as the previous IESP. (Ex. D-6). Parent alleges a number of procedural and substantive violations that led to a denial of a FAPE for both school years. (Ex. I-3-5). Furthermore, the DOE did not locate providers for the recommended SLT for either school year, but rather issued related service authorizations (“RSAs”) to the Parent, which she was unable to use because she could not find a provider willing to accept them. (Ex. A-3-4; I-3-4). As a result, the student went without his mandated
7 The New York City Department of Education delegated to OATH the authority to adjudicate due process complaints under Section 504. NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf. SLT. (Ex. A-2-3; I-2-3). Parent is seeking compensatory education services, independent educational evaluations (“IEEs”), and modifications of the student’s 2022 IESP.[10] (Ex. I-5). [11]
ISSUES
The DOE has conceded that the student is entitled to equitable services for the 2021-22 and 2022-23 school years. (Tr. 31). However, Parent stated at the PHC that all claims are under the IDEA (PHC Transcript, p. 8). Moreover, at hearing, no arguments were made with respect to 504. For these reasons, I find that the 504 claims have been abandoned. [12]
Parent alleges that the DOE failed to offer a FAPE, on substantive and procedural grounds, for the 2021-22 and 2022-23 school years. (Ex. I-2-5). Specifically, Parent alleges that the DOE failed to provide the student’s mandated SLT, that the DOE’s evaluations were insufficient because they failed to conduct an assistive technology (“AT”) or speech-language evaluation, that the 2021 and 2022 IESPs lacked sufficient present levels of performance (“PLOP”) for speech-language, that the 2021 and 2022 IESPs did not contain appropriate goals to address the student’s language deficits, that the 2021 and 2022 IESPs contained inadequate supports to produce academic progress because they failed to increase the student’s SLT or address issues related to the student’s autism, and that the 2021 and 2022 IESPs were substantively insufficient because they failed to include parent counseling and training (“PCAT”). (Ex. I-3-5). As remedy, Parent is requesting compensatory education for any related services that were not provided under pendency,[13] compensatory SLT to account for the amount that should have been mandated for the last four years (460 hours), an AT IEE, a full audiological IEE, and a modification of the student’s 2022 IESP to include all supports recommended in their most recent IEEs [specialized reading instruction (3x60), SETSS (5x60 each for reading, writing and math, plus an additional 5x60 for other academic subjects and 10x60 at home), increased SLT (3x60), increased counseling (2-3x45), and PCAT (4x60 per month), all on a 12-month basis]. (Ex. I-5; Tr. 38-39, 145-147).
At hearing, the DOE indicated that they are disputing Parent’s allegations[14] and the requested relief. (Tr. 33-37, 135-141). Specifically, the DOE argued that they had provided an appropriate program, with sufficient evaluations, PLOP, management needs, and goals, that the IHO did not have authority to modify the IESP, that there was no evidence in the record that the student had missed any mandated services, that there was no causal link between any lack of services and the student’s specific weaknesses during the two years at issue, and that the sheer volume of requested services would be “more harmful than helpful” because there are “[not] enough hours in the day.” (Tr. 137-138). While the DOE acknowledged that “the student has been terribly let down by the educational system as a whole over the entirety of his life” (Tr. 141), they argued that no compensatory services were warranted because there was no evidence of a lack of mandated services, there was no link between any missing services and the student’s educational deficits for these two years rather than over many years, the parental placement contributed to the student’s deficits, there was insufficient evidence in the record to fashion appropriate relief, and the equities 15 favor the district. (Tr. 135-141).
FINDINGS OF FACT 16
The student’s 2/11/21 IESP indicated that the student was struggling in all academic areas. (Ex. B-1). It noted that he was not a fluent reader, that he struggled with decoding, accuracy, and inferencing. (Ex. B-1). Parent and the school both felt that dropping Spanish would help the student focus on his other academic classes. (Ex. B-1). The IESP noted the student’s ADHD diagnosis but said nothing about autism because the student did not yet have that diagnosis. (Ex. B-2). The IESP did not contain any information about the student’s functional grades levels, nor did it contain the results of any formalized testing or assessments. (Ex. B). In the section of the IESP for evaluation results, it said “N/A.” (Ex. B-1).
The 2/11/21 IESP noted that the student was struggling to make friends other than his siblings, but that was partially due to the pandemic, and he had connected with students in his math class and kept in touch with friends from his previous school. (Ex. B-2). The IESP stated that the student was previously in counseling but that it had previously been determined that he no longer needed it and he had “opted out.” (Ex. B-2). It also noted that the team was worried about the student’s self-esteem and believed he would benefit from restarting counseling. (Ex. B-2).
The 2/11/21 IESP contained management needs of SETSS, SLT, preferential seating, positive reinforcement, chunking of larger texts, graphic organizers and editing checklists for writing. (Ex. B-3). The IESP contained two reading goals (to summarize a grade-level text and to define unfamiliar words using context and a dictionary), one writing goal (to write a clear argumentative essay), one math goal (to solve two-step equations with rational and irrational numbers), one speech-language goal (to formulate a logical response to an inferential question), and two counseling goals (to verbally express emotions and to manage distressing feelings). (Ex. B-4-5). The section of the IESP for transition activities, which states that it is to be implemented not later than the age of [15], 17 was blank, as were the
16 Facts contained in the “Introduction and Procedural History” and “Background” sections above are incorporated here as well.
17 The student turned fifteen while this IESP was in effect. sections for postsecondary goals and transition needs. (Ex. B-3, 7-8). The 2/11/21 IESP did not mention regression by the student during school breaks, nor did it mention any parental concern over regression or any request for extended school year services. (See Ex. B).
In November 2021, Parent initiated a neuropsychological evaluation (“2021 Neuropsychological”) of the student. (Ex. C-1-2). This was conducted by Neuro Evaluator. (Ex. C-1). The evaluation included clinical interviews with the student, Parent, and academic advisor, review of teacher reports, behavioral observation, and a battery of standardized tests. (Ex. C-1, 4; H-2-3). The 2021 Neuropsychological stated that the student was receiving mostly failing grades, even with extra tutoring. (Ex. C-1). According to the evaluation report, the student’s teachers had expressed concern about his performance, incomplete assignments, and trouble grasping assignment expectations. (Ex. C-2). It further noted that the student was struggling with anxiety and social connections and had “limited verbal engagement with teachers.” (Ex. C-1). The report described the student as having a “flat affect,” “poor awareness of social cues,” sensitivity to noise, sensory issues, rigidity with his routine, and ritualistic behaviors. (Ex. C-3).
Based on the assessment results, during the 2021 Neuropsychological, the student was found to have low average full-scale IQ, very low working memory, low average processing speed, “weaknesses in verbal-based thinking and word knowledge,” extremely low performance following verbal directions and “providing multiple meanings for ambiguously worded sentences,” very poor social language, extremely low visual attention, slow fine motor speed, “clinically elevated difficulties with inattention,” “significant deficits in word reading,” very low spelling performance, very low passage reading accuracy, low average sentence composition, very low performance in rapidly solving simple math equations, “very intense social anxiety,” and a high probability of autism. (Ex. C-5-9; H-4). In reading, the student failed to demonstrate mastery of skills that should have been mastered by the end of third grade. (Ex. C-8; H-6). The evaluation report summarized that the student “has at least Average underlying thinking and memory skills needed to achieve academic success, but his language deficits have not been appropriately remediated. He has not been able to meet expectations in a regular education high school classroom due to his severe language based learning problems.” (Ex. C-10; H-3-4). While the student’s language deficits were found to impact his social performance as well, overall, his social deficits were found to be “more consistent with autism.” (Ex. C-10; H-5-6). Ultimately, as a result of the 2021 Neuropsychological, the student was diagnosed with Autism Spectrum Disorder (“ASD”), ADHD, Unspecified Anxiety Disorder, Social Anxiety Disorder, and Specific Learning Disorders with Impairment in Reading (dyslexia) and Written Expression. (Ex. C-11).
The 2021 Neuropsychological recommended that the student receive psychotherapy outside of school, placement in a “special education school” to address his multiple learning disabilities “through targeted specialized instruction throughout the school day,” repetition of the 10th grade, a summer program of intensive literacy and math remediation, individual SLT three times a week for the extended school year,[18] specialized phonics-based reading instruction three times a week that includes instruction in written expression through the extended school year, and various classroom accommodations. (Ex. C-11-13). The recommended accommodations included preferential seating, modified curriculum and exam format, extended time, read aloud and reviewed instructions, emotional support in class, resource room support to preview and review content, attention and comprehension check-ins, provision of notes, calculator and direct instruction for math, modification of written assignments, exemption from foreign language, counseling, and special educator assistance while he remained in a regular education classroom. (Ex. C-13-14). The 2021 Neuropsychological also recommended a comprehensive language evaluation and use of an electronic reading device at home, as well as repeated academic testing in the Spring of 2023 and a full re-evaluation in his senior year of high school. (Ex. C-13-14). At hearing, Neuro Evaluator testified that the student’s deficits displayed at the time of 2021 testing was the “accumulation of everything that had led up to that point” and that “[no]body on the school side was aware of the depths of [his] deficits.” (Tr. 103-104).
It is unclear from the record when the 2021 Neuropsychological report was completed and when or if it was provided to the DOE. In the section of the 3/14/22 IESP where it is supposed to list evaluation results, it again stated only “N/A.” (Ex. D-1).
The student’s 3/14/22 IESP stated that the student was in the tenth grade and “had been doing horribly [in] his classes” but that he had “started SETSS[19] on February 22nd and it [was] going well. He just took two tests and he did well; review of notes and essay also good.” (Ex. D-1). It went on to say that the student was still struggling with decoding, accuracy, and inferencing and could “write a paragraph on his own but struggles to expand thought, due to his limited vocabulary.” (Ex. D-1). The IESP reflected Parent’s desire for the student to receive his mandates SLT and counseling,[20] which had not yet begun. (Ex. D-1). The IESP stated that the student had not made many friends at his current school, but that he attended a chess club, had some friends outside of school, and would be “starting an after-school program where they play video games.” (Ex. D-2). The 3/14/22 IESP did not contain any mention of the 2021 Neuropsychological or its results, nor did it contain any reference to the student’s new diagnoses (such as autism, anxiety, and learning disorders). (Ex. D). The IESP did not contain any information about the student’s functional grades levels, nor did it contain the results of any formalized testing or assessments. (Ex. D).
The 3/14/22 IESP contained identical management needs to the prior IESP (listed above). (Compare Ex. D-2 with B-3). The 3/14/22 IESP contained identical annual goals to the prior IESP (listed above). (Compare Ex. D-3-5 with B-4-5). The 3/14/22 IESP contained an identical program and related service recommendations to the prior IESP. (Compare Ex. D-6 with B-6). The 3/14/22 IESP did not contain any mention of regression by the student during school breaks, nor did it mention parental concern over regression or any request for extended school year services. (See Ex. D).
SL Evaluator[21] conducted an independent speech-language evaluation of the student in April and May of 2023 (“SL IEE”). The SL IEE consisted of a Parent interview, direct observation, a review of records, and both formal and informal assessments. (Ex. E-1; Tr. 49). The report reflects Parent’s concern that the student had not received SLT since the 2019-20 school year. (Ex. E-2). The report notes the student’s history of prenatal drug exposure and multiple ear infections prior to age four, as well as a family history of autism and learning disabilities. (Ex. E-2-3).
Testing results during the SL IEE indicated that the student has moderate delay in social development. (Ex. E-3-4). SL Evaluator observed the student’s hearing acuity to be “within normal limits,” but recommended an audiological evaluation to rule out any possible hearing deficits[22] and assessment to rule out a central auditory processing disorder (“CAPD”).[23] (Ex. E-4-5, 10; G-3). The student’s “oral and peripheral speech mechanism (i.e., lips, tongue, hard palate, soft palate, teeth, and pharynx” were found to be “within functional limits.” (Ex. E-4). Regarding the student’s phonology and articulation, the student was 80% intelligible and no phonological processing errors were observed, nor were any articulation issues noted. (Ex. E-5). The student’s performance on non-standardized language assessments “demonstrated reduced processing skills and short-term/working memory functioning needed for language learning.” (Ex. E-6). His performance on standardized language assessments placed him in the 0.1st percentile in word classes[24] and formulated sentences,[25] indicating severe delay. (Ex. E-7; G-2-3).
Overall, SL Evaluator found that the student has considerable difficulty constructing age-appropriate narratives and performing comprehension tasks, and possesses a decreased repertoire of receptive and expressive vocabulary. (Ex. E-9; G-2-3). SL Evaluator believes that these delays are negatively impacting the student’s socialization and academic success. (Ex E-9; G-3). In the opinion of SL Evaluator, the student “has been provided the inappropriate type and amount of [SLT] resulting in decreased progression in his communication skills” and he requires compensatory SLT to compensate for this. (Ex. E-9; G-3). Based on the student’s test results and deficits, 26 SL Evaluator recommends a revised SLT mandate of five sessions per week (2x30x1 and 3x30 in a group of up to three), as well as 460 hours of compensatory services (5x30 multiplied by 46 weeks for the extended school year, then multiplied by the four years she estimates that he did not receive SLT services). (Ex. E-9; G-3-4; Tr. 52-53). According to SL Evaluator, the SLT mandates in the 2021 and 2022 IESPS were inappropriate and should have been consistent with her current recommendations. (Ex. G-4). Her recommendation for an extended school year was not based on any specific regression information from the student’s teachers, but rather on the general possibility of regression given the student’s profile and diagnosis. (Tr. 58-59).
26 At hearing, she could not say whether or what portion of the student’s deficits were caused by the student’s private general education program rather than deficiencies in the IESPs. (Tr. 53). She did say that his deficits were exacerbated by a lack of related services. (Tr. 54). SL Evaluator believes the student needs increased supports going forward as well as compensatory services to make up for previous deprivations. (Tr. 78-79). In her opinion, the student’s deficits are an “accumulation of everything,” including the student’s private school program, but were exacerbated by his misdiagnosis and lack of therapy. (Tr. 53-54).
SL Evaluator also recommends an AT evaluation “to assess and determine what supports can help [the student] increase access to his education.” (Ex. E-10; G-3; Tr. 64-65). Apart from the student’s “academic difficulties,” the SL IEE does not explain what, if any, information was known to the CSEs at the time of the 2021 or 2022 IESPs that would have suggested that an AT evaluation was necessary previously. (See Ex. E; G). At hearing, SL Evaluator explained that an AT program “could assist [the student] in acquiring vocabulary and assist him in producing grammatically correct sentences,” which are areas of delay for him. (Tr. 66-67).
In May 2023, Neuro Evaluator[27] conducted a clinical update to her 2021 Neuropsychological (“2023 Neuropsychological”). (Ex. F-1). Other than a phone conversation with Parent, the 2023 Neuropsychological does not indicate what, if any, additional observation or testing was done as part of the “clinical update.” (Ex. F-1). According to the 2023 Neuropsychological, the student’s “academic plan to date has been woefully inadequate in terms of addressing his learning and emotional needs. His areas of disability were not fully explored via assessment. Without appropriate interventions and supports, [the student] has not been able to pass his classes and graduate next year.” (Ex. F-1; H-8). The 2023 Neuropsychological lays out two education plans that, in the opinion of the Neuro Evaluator, “should have been in place for [the student] for the past 2 years at minimum, once his significant struggles to meet academic demands in high school were evident.” (Ex. F-1).
The Neuro Evaluator has laid out two alternative educational plans – one for if the student is placed in a special education program and one that consists of supplemental services the student would need if he were to remain in a regular education program. (Ex. F-1-3; Tr. 132-133). Neuro Evaluator’s primary recommendation was in 2021 and continues to be placement in a special education program “because [the student] can’t keep up with neurotypical peers.”[28] (Ex. C-12; F-1; H-9; Tr. 131-132). The 2023 Neuropsychological recommends a special education setting where the student “can be taught in all subjects by special educators” at his current skills level with high school aged peers. (Ex. F-1; Tr. 105-106). The special education program should include specialized reading, writing, and math instruction and emotional supports. (Ex. F-1-2). SLT (3 individual sessions per week including cognitive linguistic therapy) should “optimally” be provided as a component of the special education school program. (Ex. H-7-8). At hearing, Neuro Evaluator stated that the student would be unlikely to need SETSS if he got an appropriate special education program in a special class. (Tr. 133).
In the alternative, if the student does not get placed in a special education program (or while placement is pending and the student remains in a general education setting), Neuro Evaluator recommends at least one additional year of high school, an extended school year program “to prevent regression of skills,” specialized phonics-based reading instruction (3x60x1), pull-out SETSS[29] in school (5x60 for reading, 5x60 for writing, 5x60 for math, and 5x60 for other academic subjects, for a total of 20 hours per week), home-based SETSS (for homework completion and skill reinforcement 10x60x1), SLT (3x60x1), out of school counseling to manage anxiety and build social skills (2-3x45), psychiatric treatment (1x45x1), PCAT (4x60 per month), and vocational training (1x60x1). (Ex. F-2-3; H-9-11). In the opinion of Neuro Evaluator, the student cannot function appropriately in a regular education classroom, so if he is not placed in a special education school, he would essentially need small group SETSS instead of class. (Tr. 119-120).
Neuro Evaluator’s recommendation for an extended school year program was based on the student’s significant deficits and diagnoses rather than any specific information about him experiencing regression. (Tr. 108-109). In her testimony affidavit, Neuro Evaluator repeated her recommendation that the student use an electronic reading device at home but did not recommend any school-based AT or an AT evaluation. (See Ex. H). In the opinion of Neuro Evaluator, the supports provided in the 2021 and 2022 IESPS were insufficient. (H-11-12).
LEGAL FRAMEWORK
IDEA
The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”). 20 U.S.C. §1400(d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. §300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.” Id. The IEP must be reviewed at least annually [34 C.F.R. §300.324(b)(1)(i)], and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year [8 NYCRR §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010)]. The appropriateness of an IEP should be evaluated prospectively from the time that it was created. See R.E. v. N.Y.N. Dep’t of Educ., 694 F.3d 167 (2d Cir. 2012); D.N. v. Bd. of Educ., 2015 WL 5822226, *29 (E.D.N.Y. 9/28/15). Information not available to the CSE may not be relied upon to invalidate a substantively appropriate IEP. C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, *13 (S.D.N.Y. 12/23/13); J.M. v N.Y.C. Dep't of Educ., 2013 WL 5951436, *18-*19 (S.D.N.Y. 11/7/13)(holding that a progress report created subsequent to the CSE meeting may not be used to challenge the appropriateness of the IEP).
For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2). Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. J.L. v. New York City Dept. of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011). The IDEA requires school districts to provide appropriate education to students with disabilities, "not one that provides everything that might be thought desirable by loving parents." Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998) quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989).
The provision of a FAPE could require a 12-month school year if one is needed to prevent substantial regression. 8 N.Y.C.R.R. §200.6(k); 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 N.Y.C.R.R. §200.1[aaa]. In order to constitute “substantial regression,” the student’s educational loss during the summer must be so severe that it requires an inordinate period of re-teaching at the beginning of the next school year (8 weeks or more) to recoup the previous level of skill or knowledge. See VESID, “Extended School Year Programs and Services Questions and Answers,” (2006); 30 "Questions and Answers Extended School Year 2017," Office of Special Educ. (Feb. 2017); [31] Application of a Student with a Disability, Appeal No. 05-114 (a review period of eight weeks or more would likely indicate that substantial aggression has occurred).
The IDEA requires that school districts re-evaluate students with disabilities at least once every three years, unless the parent and the District agree that re-evaluation is unnecessary. 34 C.F.R. §300.303(b). As part of any re-evaluation, the CSE must review existing evaluative data on the student, including any private evaluations, classroom observations, and observations by teachers and service providers, and then conduct further assessments if necessary. 34 C.F.R. §300.305. The failure to conduct further assessments can result in a denial of a FAPE if more information is needed to develop an appropriate IEP. See, e.g., New Mexico Pub. Educ. Dep’t, 115 LRP 12278 (SEA NM 03/02/15); James v. Dist. of Columbia, 68 IDELR 11 (D.D.C. 2016).
Under New York regulations, as part of any evaluation or re-evaluation, the school district must administer tests and other assessment that are needed to identify the student’s developmental needs and whether any program or service modifications are needed to enable the student to meet their annual goals and participate in the general curriculum. 8 N.Y.C.R.R. §200.4(b)(5). “No single measure or assessment is used as the sole criterion … for determining an appropriate educational program for a 30 Available at http://www.vesid.nysed.gov/specialed/publications/policy/esy/qa2006.htm. student,” and the evaluation must be “sufficiently comprehensive to identify all of the student’s special education needs.” Id.
Dual Enrollment
The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools. See 34 C.F.R. §300.137(a). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made. NYS Educ. Law §3602-c(2).
A district has no obligation to develop or implement an IESP for a student absent a timely request. See NYS Educ. Law §3602-c(2); Application of a Student with a Disability, Appeal Nos. 23-036; 23-032; 23-018; 21-138; 18-088; Lee-Holowka v. Emma Willard Sch., 72 Misc. 3d 1214(A), *6 (S.Ct. Rensselaer Co. 2021). The June 1 deadline is applicable even if the student has already been identified as a student with a disability and has previously received equitable services pursuant to an IESP. See Application of a Student with a Disability, Appeal Nos. 23-018; 23-032. However, a number of State level administrative decisions have found that this defense (regarding a timely request for services) can be waived by the district. See, e.g., Application of a Student with a Disability, Appeal Nos. 2-032 (the June 1 deadline is akin to an affirmative defense that should be raised at the lowest administrative level); 23-018 (this defense can be waived if not raised at the administrative hearing); 21-138 (if a district develops an IESP after a belated request, they have waived the timeliness of the request by their actions and are bound by the subsequent IESP; however, there is still no obligation to provide equitable services for the part of the school year prior to the implementation date of the subsequent IESP); 18-088 (development of an IESP after a belated request constitutes an implied waiver of the June 1 deadline).
Upon receipt of a timely request, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]." NYS Educ. Law §3602-c(2)(b)(l). Special education services under an IESP must be provided on an equitable basis as compared to the services provided to other students with disabilities attending public schools and nonpublic schools. Section 3602-c also enables a parent to initiate an impartial hearing, pursuant to NYS Educ. Law §4404, to challenge an IESP.
State law requires school districts to locate and assign publicly provided teachers for all dually enrolled students. NYS Educ. Law §3602-c(2)(a); see also Office of Special Educ. Memos, Clarifying Information Related to Contracts for Instruction, July, 2009 32 and Q and A related to Contracts for Instruction, June 2010[33] (both explaining that the DOE cannot contract for educational services with nonprofits or other agencies, except in rare circumstances not applicable here). In recent years, the DOE has often impermissibly relied on parents to obtain the services of independent providers to implement the equitable services contained in a child’s IESP, rather than arranging for such services, as required.
32 Available at http://www.p12.nysed.gov/resources/%20contractsforinstruction/documents/contractsforinstruction2009.pdf. See Application of a Student with a Disability, Appeal Nos. 21-119; 21-029; 21-028; 21-025; 20-141; 20-140; 21-115; 20-099; 20-094; 20-087.
Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. §104.33(a). Under 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. §104.33(b). The DOE is not obligated to provide equitable services to students parentally placed in private schools under 504. See 34 C.F.R. §104.33(c)(4); Letter to Veir, 20 IDELR 864 (OCR 1993); D.L. v. Baltimore City Bd. of Sch. Comm'rs, 60 IDELR 121 (4th Cir. 2013)(finding that a district’s obligation to provide a FAPE only extends to students enrolled in public schools).
Relief
Compensatory Education
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id.
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the amount of the award. See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244.
An IHO generally has broad authority to fashion appropriate equitable relief. See Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); Forest Grove v. T.A., 129 S.Ct. 2484 (2009). “Generally, compensatory services are not designed for the purpose of maximizing a student's potential or to guarantee that the student achieves a particular grade-level in the student's areas of need.” Application of a Student with a Disability, Appeal No. 23-028, citing Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132 (2d Cir. 1998). “Rather, an award of compensatory education should place the student in the position that he would have been in had the district acted properly.” Id. citing Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1497 (9th Cir. 994)(holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed").
Where a district fails to implement a student's pendency placement, students should receive the pendency services to which they were entitled as a compensatory remedy. Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015)(directing full reimbursement for unimplemented pendency services because less than complete reimbursement for missed pendency services "would undermine the stay-put provision by giving the agency an incentive to ignore the stay-put obligation"); Student X v. N.Y.C. Dep’t of Educ., 2008 WL 4890440, at *25 (E.D.N.Y. 2008); Application of a Student with a Disability, Appeal No. 23-028; 23-022.
IEEs
An IEE is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” 8 NYCRR §200.1(z). The IDEA and State and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. 20 U.S.C. §1415 (b)(1); 34 C.F.R. §300.502(b); 8 NYCRR §200.5(g)(1); Trumbull, 975 F.3d at 158 (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). Because the parent has a right to an IEE at public expense, upon request, the district must, without unnecessary delay, either: 1) file a due process complaint to request a hearing to show that its evaluation is appropriate [34 C.F.R. §300.502(b)(2)(i)]; or, 2) ensure that an IEE is provided at public expense, unless they demonstrate in a hearing that the evaluation obtained by the parent did not meet the district's criteria [34 C.F.R. §300.502(b)(2)(ii)]; see also 8 N.Y.C.R.R. §200.5(g)(iv).
A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE. Letter to Carroll, 68 IDELR 279 (OSEP 2016). The parents need not provide prior notification of their disagreement or even the areas of their disagreement, although the district can ask. 34 C.F.R. §300.502(b)(4); see also Letter to Zimberlin, 34 IDELR 150 (OSEP 2000); Letter to Lenz, 37 IDELR 95 (OSEP 2002); Letter to Dowaliby, 38 IDELR 14 (OSEP 2002). However, disagreement with a specific DOE evaluation is a prerequisite for an IEE. K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 (S.D.N.Y. Jan. 13, 2012); In Re: Student with a Disability, 121 LRP 36584 (SEA NY 10/01/21); see also R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 (D. Conn. 2005)(finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense). Accordingly, if no evaluation has been done, the parent’s recourse is not to request an IEE (because there is no evaluation they are disagreeing with), but rather to request an evaluation or re-evaluation. See Id. A parent is entitled to only one IEE at public expense each time the public agency conducts an evaluation with which the parent disagrees. 34 C.F.R. §300.502 (b)(5).
A parent may request an IEE if the district did not conduct a sufficiently comprehensive evaluation or failed to test the student in an area of need. Trumbull, 975 F.3d at 165; Letter to Baus, 65 IDELR 81 (OSEP 2015); Letter to Carroll, 68 IDELR 279 (OSEP 2016). In Trumbull, the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” 975 F.3d at 165. However, a parent’s disagreement with one assessment does not necessarily constitute disagreement with the evaluation process which would entitle them to an IEE. See Trumbull, 975 F.3d at 77 (reasoning that under the IDEA there are only two types of evaluations, initial evaluations and reevaluations, and that an FBA is neither because it lacks the comprehensiveness the IDEA requires); see also Letter to Fisher, 23 IDELR 565 (OSEP 1995)(“A parent may be entitled to an IEE at public expense if the district did not assess the student’s functional capabilities as they relate to the need of assistive technology or the parent disagrees with the school district’s evaluation in that area. A parent can also request that the school district conduct a reevaluation of the student’s need for assistive technology”).
There is conflicting case law regarding whether it is appropriate for the parent to first request an IEE in a DPC. Past SRO decisions have held that a parent may request a district funded IEE in a due process complaint notice in the first instance. See Application of a Student with a Disability, Appeal No. 19-094. However, more recent cases have held that “this is not the process contemplated by the IDEA and its implementing regulations.” Application of the Board of Educ, Appeal No. 23-034, citing 34 C.F.R. §300.502(b); 8 N.Y.C.R.R. §200.5(g)(1); Application of a Student with a Disability, Appeal No. 23-096; 23-081 (upholding IHO denial of IEE where parent had not previously attempted to raise any disagreement over evaluations with the district prior to the DPC, and “more likely included the request for an IEE as an afterthought”); 23-102 (“The process envisions that a district has an opportunity to engage with the parent on the request for an IEE at public expense outside of due process litigation, and if a delay should occur as a result, one of the fact-specific inquiries to be addressed is whether the IEE at public expense should be granted because the district's delay in filing for due process was unnecessary under the circumstances”).
Prospective IEP/IESP Modifications
A court may direct a school district to reconvene and revise a student’s IEP for the purpose of recommending an appropriate program and placement. See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381 (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”). However, prospective relief in the form of IEP amendments may have the effect of circumventing the statutory process in that the CSE is tasked with reviewing information about the student's progress and periodically assessing the student's needs. See Adams 285 F. Supp. 3d at 393; Student X v. New York City Dep't of Educ., 2008 WL 4890440, *16 (E.D.N.Y. 10/30/08)(noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"). Concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year. See V.W. v. New York City Dep't of Educ., 2022 WL 3448096, *7 (S.D.N.Y. 8/17/22)(acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years); M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, *8 (N.D.N.Y. 3/29/19)(declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief); Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 (D.D.C. Aug. 24, 2012)(noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year); Application of a Student with a Disability, Appeal No. 23-010 (declining to award prospective placement where the school year at issue had already ended “and presumably the CSE had an opportunity to craft an IEP or IESP that met the student’s needs for the [following school year]).
Burdens
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). Parents have the burden of proof for all 504 claims. See, e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990). At an impartial hearing, the party seeking extended school year (“ESY”) services bears the burden of production. See New York State’s 2022 guidance on ESY programs, available at Extended School Year Questions and Answers 2022 (nysed.gov); D.D-S. v. Southold Union Free Sch. Dist., No. 09-CV-5026, 2011 WL 3919040 (E.D.N.Y. 9/2/11).
The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme, 790 F.3d at 457; Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169. However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their full requested compensatory remedy. See M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. 2017); Application of Student with a Disability, Appeal No. 21-213.
Requested compensatory hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. See M.M., 2017 WL 1194685, at *8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any and all of the relief requested without question-is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious.”) citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir.
2005) and M.M., supra. Furthermore, a request for compensatory relief may be denied if there is insufficient causal link in the record between any deprivation and the student’s current deficits. See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir.
1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services). Moreover, unreasonable actions on the part of the student’s parents may make it appropriate to reduce a compensatory award. See Application of a Student with a Disability, Appeal No. 23-093.
ANALYSIS AND CONCLUSIONS OF LAW
The student’s eligibility for special education services and disability classification are not in dispute in this case. (Tr. 31-32). As discussed previously, only the IDEA claims are still in dispute here. Under the IDEA, the DOE has the burdens of production and persuasion as to the provision of a FAPE.
First, although there is no evidence in the record of the Parent’s timely request for equitable services by the June 1st deadline, the district conceded the student’s entitlement to equitable services for both school years at the hearing, thus waiving any issue of a timely request. Furthermore, an IESP was developed during both school years, which would also be considered a waiver of the June 1st deadline. Accordingly, there is no dispute about the student’s entitlement to equitable services here.
Second, it must be clarified that although the Parent’s request for compensatory services includes 12-month services, there is no allegation in the DPC/ADPC that the IESPs at issue were substantively inappropriate for failure to include an extended school year program. Accordingly, the issue of a denial of a FAPE/equitable services based on the lack of a 12-month program was not appropriately raised and will not be considered as part of the analysis here. Even if this issue was timely raised, there is no evidence in the record to establish that the student was previously a 12-month student or that the Parent had made a timely (or any) request for ESY services. There was no testimony by the student’s teachers that he experiences substantial regression, there are no teacher or progress reports in evidence indicating regression, and neither of the IESPs in evidence mention concerns over regression. Claims by the SL Evaluator and Neuro Evaluator regarding the student’s potential for regression were general in nature, based on the student’s diagnoses rather than any evidence of the student experiencing substantial regression, as it is defined by statute. Accordingly, the record is insufficient to establish any obligation by the district to create a program for summer services. [34]
It is also important to note that because the appropriateness of an IEP or IESP must be evaluated prospectively at the time it was created, based on information known to the CSE at that time, the analysis regarding these IESPs will not include consideration of any of the evaluations in evidence or the testimony of Parent’s witnesses. Although the 2021 Neuropsychological existed at the time of the 2022 IESP, there is no evidence in the record that it was ever provided to or considered by the CSE. It is not referenced in the 2022 IESP, nor has Parent alleged a procedural violation based on the CSE’s failure to consider it. Since the Parent chose not to testify, they did not establish that this evaluation was provided to the DOE (nor is that alleged in the DPC/ADPC). Moreover, there is no evidence here that Neuro Evaluator participated in any of the relevant CSE meetings. Accordingly, there is insufficient evidence in the record to show that the CSE had the information contained in the 2021 Neuropsychological at any time. Furthermore, both the SL IEE and the 2023 Neuropsychological in evidence were not created until after the operative CSE meetings, so the CSE was not aware of their contents at the time of the meetings. The testimony of both evaluators was similarly based on the results of subsequent testing, and there is no evidence that they had ever communicated their recommendations to the CSE prior to the drafting of either operative IESP. Thus, none of the evaluations in evidence or the testimony of Parent’s witnesses are appropriate to consider when evaluating the IESPs. They will be considered only in the context of any appropriate relief to be granted.
2021-22 School Year
Here, the DOE did not meet its burden of proof. They did not present evidence to disprove the Parent’s allegations regarding the substantive and procedural deficiencies of the IESP[35] or show that the student was offered appropriate equitable services for the 2021-22 school year. Nor did they provide proof that the mandated SLT was provided. It does not appear that any evaluations or classroom observations were conducted in order to determine the student’s PLOP or needs. Moreover, the DOE has provided no explanation (“cogent and responsive” or otherwise) for the decisions in the IESP or for their failure to implement the recommended SLT services.[36] Accordingly, I find that the student was deprived of his equitable entitlement to educational services for the 2021-22 school year.
2022-23 School Year
The DOE did not meet its burden of proof for this school year either. They did not present evidence to disprove the Parent’s allegations regarding the substantive and procedural deficiencies of the IESP[37] or show that the student was offered appropriate equitable services for the 2022-23 school year. Nor did they provide proof that the mandated SLT was provided. There is no evidence in the record that any evaluations or classroom observations were conducted in order to determine the student’s PLOP or needs. Despite his noted continued struggles with reading and lack of SLT during the prior school year, there was no increase in services or plan implemented to make up for the student’s lack of progress. Furthermore, as noted, the annual goals were identical to the previous year, indicating a lack of progress or completion of any of those goals. Moreover, at hearing the DOE provided no cogent or responsive explanation for the decisions in the IESP or for their failure to implement the recommended SLT services.[38] For all these reasons, I find that the student was deprived of his equitable entitlement to educational services for the 2022-23 school year.
Relief
IEEs:
I do not find that Parent is entitled to the requested IEEs at public expense. Here, the Parent has not alleged disagreement with a specific DOE evaluation, which is a prerequisite to this relief. In fact, the record contains no evidence of when, if ever, a DOE evaluation was last conducted. Accordingly, the appropriate recourse for the Parent would be to request an evaluation or re-evaluation by the district. Second, a parent is only entitled to one IEE at public expense per DOE evaluation, and they already requested and were granted IEEs at public expense in a previous due process proceeding this year. Third, there is insufficient evidence in the record to support the necessity of the requested IEEs. Regarding AT, while the SL Evaluator suggested that AT might help the student to maximize his potential, there is nothing concrete in the record to suggest that the student needs AT to obtain educational benefit, nor was an AT evaluation (or in-school AT) recommended in either neuropsychological evaluation. As for the requested audiological evaluation, there is similarly insufficient evidence in the record to support the need for this. Although SL Evaluator indicated that conducting one would be the best practice, her evaluation of the student did not reveal any issues with his hearing acuity, nor were any such concerns noted in the student’s neuropsychological evaluations. Accordingly, the record does not support the conclusion that such evaluations are required to assess all areas of student’s suspected need. Finally, there is no indication in the record that Parent requested these IEEs prior to the filing of this DPC, which is not the process contemplated by the IDEA.[39] For all these reasons, I find that Parent is not entitled to these IEEs at public expense. If they wish for these evaluations to be conducted, they can request that the district perform them or they can obtain them independently, at their own expense.
Compensatory Education:
I find that some, but not all, of the requested compensatory educational services are appropriate in this case. Here, it is clear that the student’s mandated SLT sessions were not provided for the school years at issue. Furthermore, it appears that the student’s pendency services have not been provided, as ordered (from the filing date of February 23 to the date of this decision). Accordingly, I find it appropriate for the DOE to review services records and provide all mandated SLT sessions for the entirety of the 2021-22 and 2022-23 10-month school years (one 40-minute individual session per week and one group session per week) as a bank of compensatory services. Any additional services that the student should have received during the pendency of this case (that includes SLT from the start of the 2023-24 school year until the date of this decision, as well as five periods per week of group SETSS and one 40-minute session per week of counseling owed for the 10-month school year between February 23, 2023, and the date of this decision) shall also be provided as a bank of compensatory services. All compensatory sessions shall be used at a provider of the Parent’s choosing at the reasonable market rate and will expire two years from the date of this Order.
The rest of the Parent’s requested compensatory services are denied for several reasons. First, I find insufficient evidence in the record to quantify any specific educational deficits caused by a deprivation of equitable services for the two school years at issue. Based on the record before me, it appears that the student’s significant deficits largely predated the school years at issue. His language deficits were clear from early childhood. He was already performing poorly and significantly delayed by the time he was evaluated in the fall of 2021. There were approximately two school years of SLT denials prior to the school years at issue, which would have negatively impacted the student’s growth. Both the SL Evaluator and Neuro Evaluator described deficits that accumulated over the course of many years. In fact, the SL Evaluator’s recommendation for compensatory SLT (460 hours) was based on a calculation of her ideal recommendation (of which the CSE was unaware) over the course of four 12-month school years, even though this case only concerns two 10-month school years. While the lack of mandated SLT exacerbated the student’s issues, neither of Parent’s witnesses could conclusively determine the cause of his deficits or delineate what portion may have been caused by a specific lack of IESP services during the two years at issue rather than an inappropriate private school program. Although the DOE has the burden of proof regarding compensatory education, there must be some substantive basis in the record to support such an award and I find it lacking here. Secondly, compensatory education is an equitable remedy, and I find that equity and fairness weigh against Parent. Here, Parent had information as early as fall of 2021 showing the depth of the student’s deficits, his autism and dyslexia (along with other new) diagnoses, and that he should have been placed in a special education school. Despite that knowledge, Parent seemingly failed to share it with the DOE and also persisted in their decision to parentally place the student in a regular education setting. The record is clear that Neuro Evaluator’s primary recommendation for the last two years has been a special education class, that such a class would be better than a general education class with support services, and that the student’s need for support services would be drastically reduced if he was placed in an appropriate special education setting. Here, it was the Parent’s decision to ignore these recommendations and place the student in a private general education program. Thus, it is primarily the responsibility of the Parent that the student did not get the education that he needed. It is clear from the testimony, as well as the massive amount of support services (more than 35 hours per week) Neuro Evaluator believes the student would require in order to progress in a regular education setting, that the student is incapable of performing appropriately in the setting in which Parent placed him for the school years at issue. While the DOE should have conducted their own evaluations, I do not believe it would have significantly changed the outcome because they ultimately could not control the educational placement of a parentally placed student and Parent already had the information they needed in the fall of 2021 to suggest that a change in placement was warranted. Parent’s actions in withholding that information from the DOE and maintaining an inappropriate parental placement for the student were unreasonable. Accordingly, even if there was a quantifiable causal connection in the record to determine appropriate compensatory services (apart from those already described above), I would decline to order further compensatory relief on equitable grounds. IESP Modifications: As mentioned previously, since the 2022 IESP is no longer the operative one, I believe the request for its modification is moot. Even if it were not moot, I would decline to order any prospective IESP modifications here. In this case, such an order would circumvent the statutory process because the challenged school years have already ended and the CSE should already have reviewed the student’s IESP for the 2023-24 school year, assuming there was a timely request for equitable services. I find that the purposes of the IDEA would be best effectuated by ordering the CSE to reconvene and consider all the available evaluative material in determining the appropriate program for the student. Should Parent wish the district to offer the student an appropriate special education program, consistent with their IEE results, then they may request an IEP from the district. Should the Parent wish to challenge the IESP from the current school year, they must do so in a subsequent due process complaint.
I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ORDERED THAT:
1. The New York City Department of Education shall review service records and determine how many hours of compensatory SLT services to which the student is entitled [based on a calculation of 1x40x1 and 1x40 in a group per week] that were not already provided for the 2021-22 and 2022-23 10-month school years. The total number of SLT sessions owed will be increased by the number of additional sessions owed under the pendency order of this case (at the same frequency and duration) from the start of the 2023-24 school year to the date of this decision. The final number of owed SLT sessions shall then be provided as a bank of compensatory education services. All compensatory services must be provided by an appropriately qualified provider of the Parent’s choosing at the reasonable market rate. All sessions must be used within two years of the date of this Order; it is further
2. ORDERED that the New York City Department of Education shall review service records and determine how many hours of compensatory SETSS and counseling services to which the student is entitled under pendency [based on a calculation of five periods per week of group SETSS and one 40-minute session per week of counseling] for the 10-month school year from February 23, 2023, to the date of this Order. The total number of sessions owed shall then be provided as a bank of compensatory education services. All compensatory services must be provided by an appropriately qualified provider of the Parent’s choosing at the reasonable market rate. All sessions must be used within two years of the date of this Order; and it is further
3. ORDERED that the New York City Department of Education’s Committee on Special Education shall convene a review meeting to consider the results of all existing evaluations and develop an IEP or IESP with an appropriate program and services in light of the findings therein.
SO ORDERED.
DATED: September 26, 2023 Leah Martin, Esq. (Signed Electronically)_
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.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
DOE’S EXHIBITS
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PARENT EXHIBITS
A. DPC 2/23/23 7 pages
B. IESP 2/11/21 16 pages
C. Neuropsychological 11/29/21 2021 21 pages
D. IESP 3/14/22 9 pages
E. SL IEE 5/1/23 10 pages
F. Neuropsychological 5/15/23 2023 4 pages
G. SL Evaluator Testimony Affidavit 5/31/23 4 pages
H. Neuro Evaluator Testimony Affidavit 6/1/23 12 pages
I. ADPC 6/9/23 5 pages
IHO’S EXHIBITS
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Footnotes
[2] Exhibits shall be referred to as follows: Ex. followed by lettered designations for Parent Exhibits, numbered designations for DOE’s Exhibits, and roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parent Exhibit A, page 1, will be referred to as (Ex. A-1).
[3] Despite being included on the scheduling email and conference invitation, no one from the DOE appeared at the PHC.
[4] The IEEs had been granted as a result of a prior due process proceeding earlier this year.
[5] References to the hearing transcript will be referred to as (Tr.) followed by the page number within the transcript.
[6] At the first hearing date, DOE Representative had objected to the Parent not being present or called as a witness and requested the opportunity to subpoena their testimony. (Tr. 21-31). At the end of that hearing date, DOE Representative was directed to submit any proposed subpoena by August 18. (Tr. 80-81). They never submitted any proposed subpoena, nor did they renew their request to do so at the subsequent hearing date. Furthermore, Parent Counsel submitted email documentation that DOE Representative had notice, prior to the disclosure deadline (See Witness List Email), that Parent was not intending to testify, and DOE Representative made no efforts to secure their testimony by subpoena on either hearing date.
[8] Parent participated in the meeting. (Ex. B-9).
[9] Parent participated in the meeting. (Ex. D-9).
[10] As the 2022-23 school year is now over, and the date of projected annual review for the 3/14/22 IESP has passed (Ex. D- 1), this request is now moot and will only be addressed briefly. If the Parent wishes to challenge the IESP for the current school year, they must do so in a new due process complaint.
[11] The Parent also requests attorney fees, but since I do not have the authority to grant that request, it will not be addressed herein. The original DPC for this case also requested educational records (Ex. A-4), but that request was omitted from the ADPC, so it will not be discussed further herein.
[12] Even if they were not abandoned, Parent has the burden of proof on all 504 claims, and parentally placed students have no individual entitlement to a FAPE under 504, so Parent’s burden has not been met.
[13] At hearing, Parent Counsel requested compensatory services for those not provided during the pendency of this case as well as a prior due process proceeding involving IEEs for this student that was filed in January 2023. (Tr. 38, 145-146). However, neither the original DPC nor the ADPC in this case raised the issue of the failure to comply with the prior pendency order, so that issue was not timely raised and is not appropriate for consideration in this case. Furthermore, an IHO lacks authority to address a failure to implement an order from a prior proceeding. See Application of a Student with a Disability, Appeal No. 23-077. If Parent wishes to seek implementation of an order from a prior case, they may file proceedings in the appropriate court.
[14] The DOE’s arguments were largely burden-shifting, arguing that Parent failed to prove their allegations instead of asserting that they had disproved them. (Tr. 135-141).
[15] Specifically, the DOE argued that Parent had provided no Ten-Day Notice for either school year and that Parent should be penalized for not appearing at the hearing personally instead of through counsel. (Tr. 35-37). They gave no explanation for their belief that the Ten-Day Notice requirement would apply in this case even though the student was not removed from public school and Parent is not seeking tuition reimbursement.
[18] Based on the evaluation report, it appears that extended school year services were recommended to address the student’s significant deficits rather than any concern over regression. (See Ex. C-12-13).
[19] It is unclear from the record why the student would have just started SETSS since they were on his previous IESP as well. However, Parent has not alleged that the DOE failed to provide the mandated SETSS, so it will not be discussed further herein.
[20] Parent has not alleged that the DOE failed to provide the mandated counseling, so it will not be discussed further herein.
[21] She is a New York State licensed and nationally certified speech-language pathologist with a bilingual (Spanish) extension. (Ex. G-1, 5, 7). She is trained in Prompts for Restructuring Oral Muscular Phonetic Targets (“PROMPT”) therapy, which is a “tactile-kinesthetic approach” using “touch and feel to guide the client’s …jaw, lips, [and] tongue [] towards the movement(s) required to form a target sound.” (Ex. G-1).
[22] At hearing, SL Evaluator testified that this evaluation would be “best practice” given the student’s history of childhood ear infections. (Tr. 61).
[23] Red flags for CAPD include poor performance in reading, writing, and spelling, lack of attention in class, preference for visual information, and a lack of ability to repeat a story in sequence, many of which the student exhibits. (Ex. E-5).
[24] Word classes “measures a student’s ability to understand word relationships based on semantic class features, function, place, or time of occurrence.” (Ex. E-7; G-2).
[25] Formulated sentences “assesses ability to formulate grammatically correct sentences using a specific word with contextual constraints imposed by illustrations.” (Ex. E-8).
[27] She is a New York State licensed clinical psychologist with approximately 25 years of experience conducting neuropsychological evaluations. (Ex. H-1-2).
[28] She went on to testify that the student “doesn’t have the skills to do grade-level work -- not even close to it” and he needs a program that will meet him at his level. (Tr. 106). She also iterated that a special education program would be better than a general education setting with additional supports. (Tr. 107-108).
[29] Neuro Evaluator specified at the hearing that the in-school SETSS should be in a small group setting. (Tr. 119-120).
[31] Available at http://www.p12.nysed.gov/ specialed/applications/ESY/esy-2017/ documents/questions-and-answers-extended-school-year-2017.pdf.
[33] Available at http://www.p12.nysed.gov/%20resources/contractsforinstruction/documents/contractsforinstruction2010covermemo.pdf.
[34] See Application of a Student with a Disability, Appeal No. 23-077 (finding that the teacher’s assertion that the student “needed a 12-month program in order to practice and maintain skills” was insufficient to justify an extended school year).
[35] Since the CSE was not aware of the results of the evaluations in evidence, they were similarly unaware of the student’s autism diagnosis, and thus had no reason to know that PCAT was required in the IESP pursuant to 8 N.Y.C.R.R. §200.13(d). Thus, I find no deprivation of services based on a lack of PCAT.
[36] Despite the DOE’s assertion to the contrary, there is sufficient evidence in the record to show that the student did not receive his mandated SLT sessions during the 2021-22 school year.
[37] Since the CSE was not aware of the results of the evaluations in evidence, they were similarly unaware of the student’s autism diagnosis, and thus had no reason to know that PCAT was required in the IESP pursuant to 8 N.Y.C.R.R. §200.13(d). Thus, I find no deprivation of services based on a lack of PCAT.
[38] Despite the DOE’s assertion to the contrary, there is sufficient evidence in the record to show that the student did not receive his mandated SLT sessions during the 2022-23 school year.
[39] See Application of the Board of Educ, Appeal No. 23-034, citing 34 C.F.R. §300.502(b); 8 N.Y.C.R.R. §200.5(g)(1); Application of a Student with a Disability, Appeal No. 23-096; 23-081; 23-102.