NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case No. 246252
Student’s Name: Student
Date of Birth: REDACTED
Home District: REDACTED
Service District: REDACTED
Hearing Requested by: Parent
Record Close Date: August 2, 2023
Decision Date: August 2, 2023
Hearing Officer: Eryn DeFontes, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
For the Student:
Attorney for Parent
For the Parents:
For the Department of Education:
District Representative
Interpreter
BACKGROUND AND PROCEDURAL HISTORY
On February 27, 2023 the Parent filed a due process complaint (DPC) against the New York City Department of Education (DOE or District) under Case No. 246252, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. Section 1415(f)) and Section 4404(1) of the New York State Education Law. The instant case was assigned to Impartial Hearing Officer (IHO I) on February 28, 2023 and reassigned to the undersigned IHO on April 21, 2023 (Undersigned/Undersigned IHO). A hearing on the merits (DPH) was held on July 12, 2023. A list of the documentary evidence in this proceeding is appended to this Order. The Parent alleges that the DOE denied the Student a free appropriate public education (“FAPE”) for each of the 2020-2021, 2021-2022, and 2022-2023 school years. [1]
The DOE did not present a case, witnesses, or testimony, despite its burden to do so. [2] The DOE took no position regarding the relief requested save to request services to be ordered at “market rate”.[3] The DOE declined to cross-examine the Parent witness.[4] The Parent presented a case that consisted of exhibits A through F, which were admitted into evidence. [5]
JURISDICTION
This decision is rendered pursuant to the IDEA [6], and its implementing regulations,[7] and the New York State Education Law, and its implementing regulations.[8] Parent further raised claims pursuant to Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504). [9]
LEGAL STANDARDS AND FRAMEWORK
In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. [10]
Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE.[11] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP.[12] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[13] If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. [14]
In addition, 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. [15]
FINDINGS OF FACT AND DECISION
After considering all the evidence, the undersigned IHO find as follows:
However, as relief in the matter is available pursuant to the IDEA, any claims set forth pursuant to Section 504 are hereby subsumed by the IDEA and will not be addressed separately. The Student is a REDACTED-year-old child who is classified by the DOE’s Committee on Special Education (CSE) as a child with a disability.[16] The Student’s classification is not in dispute. In this case, the DOE did not present a case, object to or contest the evidentiary material submitted by the Parent in support of their claims, nor did the DOE offer rebuttal to the testimony provided by the Parent’s witness.[17] Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent those facts are credible and are not contradicted by the hearing record.
As the DOE failed to meet its burden at the hearing, the undersigned is constrained to find that the DOE failed to offer the Student FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. Nevertheless, the evidence establishes that the DOE failed to provide the Student with specialized education and related services designed to meet the student’s needs for the school years at issue through its failure to provide specialized education and related services designed to meet a student’s unique needs. [18]
A speech-language evaluation (evaluation) was performed on the Student or about January 12, 2023: 19 Student’s Core Language Score of 73 fell within the Low Range when compared to his peers; Receptive Language Index score of 60 fell within the Very Low Range when compared to his peers; Expressive Language Index score of 83 fell within the Below Average range when compared to his peers and are “suggestive of a moderate receptive and expressive language impairment.”[20] Student was further was observed to present “deficits in the areas of receptive and expressive language as well as difficulties with phonemic/phonological awareness skills that may adversely affect his educational performance and his ability to communicate effectively in academic and social environments. Speech and language services are recommended to support [Student] in his areas of difficulty and in reaching all areas of the
19 P-C. curriculum.” [21]
The speech-language evaluation further noted: “[Parent] stated that she is concerned that [Student] has difficulty expressing himself and initiating interactions with others. [Parent] reported that she saw a regression in [Student’s] language skills after first grade [and] reported that [Student] previously received Speech-Language Therapy (SLT), Occupational Therapy (OT), and applied behavior analysis (ABA) services through Early Intervention and CPSE. However, she reported that services were discontinued after [Student] turned three years old.” [22]
The Student’s subsequent February 2023 IEP recommends inter alia, individual SLT 2x/week for 30 minutes.[23] The unrefuted and credible testimony of the Parent establishes that Student previously received “various related services includ[ing] [SLT] as a preschooler…” [24]
The Parent further testified:
[Student] is behind same-aged peers in core academics and is not showing signs of meaningful progress in school. According to his report cards, he has consistently been below standards…Despite evidence that [Student] has not been achieving meaningful progress, the DOE has recommended placements and programming that have not been effective or appropriate during the school years at issue. [25]
Prior to his classification in February of 2023, [Student’s] learning problems had been evident as he had consistently exhibited poor academic progress. [Student] needed more help during the 2020-2021, 2021-2022, and 2022-2023 school years, and I asked for it. I expressed my concerns regarding [his] difficulties in school and my suspicions that he had learning and speech difficulties. [26] [Student] was finally classified and provided an IEP in February of 2023. However, given his noted needs, long standing issues, and my repeated requests for increased help, he should have been referred to the CSE, classified, and provided an IEP much sooner. [27]
The DOE presented no evidence to the contrary.
Compensatory Relief
The Parent has requested an Order directing the DOE to provide compensatory SLT. [28]
The relief request by the Parent is equitable in nature, as they are requesting that the IHO devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the school years at issue.
An award of compensatory services may be appropriate if a student has been denied appropriate services for a 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. [29]
It is widely held that "[c]ompensatory education involves discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student" and serves as a “replacement of educational services the child should have received in the first place.”[30] Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.”[31] Lastly, “if IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves”. [32]
In this case, the Student’s diagnosis and the impact it has had on their learning and ability to progress is well documented. 33 As previously stated, school districts have the burden of proof, including the burden of persuasion and burden of production in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement.[34] Since the instant matter does not involve a unilateral placement/tuition reimbursement claim, the burden of proof lies with the DOE.[35] As the DOE failed to present a case or object to the proposed relief, Parent’s requested relief, which is supported by credible unrefuted evidence, shall be granted.
CONCLUSION
The DOE denied the Student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. Accordingly, the Student is entitled to 120 sessions of compensatory SLT at 30 minutes per session for the denial of FAPE. [36]
The undersigned IHO finds that without any contradictory evidence from the DOE, the duration and frequency of the requested service is reasonable.
Attorney’s Fees
Parent included a request for attorneys’ fees in their due process complaint.[37] The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. [38]
Therefore, the undersigned IHO would be exceeding the permissible scope of authority by determining that Parent is the prevailing party entitled to costs. To the extent that Parent seeks reimbursement and/or payment of attorneys’ fees and costs from this IHO, such request is denied.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that the DOE shall fund a bank of compensatory related services for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by a qualified provider of the Parents’ own choosing at a reasonable market rate consistent with the rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for independent 1:1 SLT services within the six (6) month period prior to the date hereof, such payment to be made within thirty (30) days of the Parents’ submission to the DOE of the provider’s invoice for such services:
i. 120 sessions of 1:1 SLT (30 minutes per session), to be conducted by a qualified provider of the Parent’s choosing at a reasonable market rate,
2. IT IS FURTHER ORDERED that the bank of compensatory services set out above shall not expire until the expiration of three (3) years from the date of this Order,
SO ORDERED.
Dated: August 2, 2023 Eryn DeFontes
Eryn DeFontes, Esq.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of their 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
DOCUMENTS ENTERED INTO THE RECORD
DOE EXHIBITS
NONE [39]
Parent Exhibits
Parent Title Date Pages Date Admitted
I.D.
A Impartial Hearing Request 2/27/23 5pp.
B Individualized Education Program 2/2/23 26pp.
C Speech/Language Evaluation 1/12/23 8pp.
D Consent for Evaluation 8/22/22 2pp.
E Request for Release of Records 8/22/22 2pp.
F Parent Affidavit: PARENT 6/15/23 3pp.
IHO Exhibits
I 3/28/23 Partial resolution agreement
Footnotes
[1] P-A-2 (Parent’s representative maintained that the allegation that FAPE was not provided for the 2019-2020 SY is a typo.) Tr. 7:13-19. The remaining claims and requests for relief were either satisfied via a resolution agreement or withdrawn Tr. 9:16-25; Tr. 8:1-10.
[2] Tr. 9:10-23; see also, Educ. Law § 4404[1][c].
[3] Id.
[4] Id.
[5] Upon a brief voir dire regarding the interpreter utilized in the drafting of Parent’s exhibit F, the DOE Representative asserted, “I have absolutely no question regarding the representation of [Parent’s Attorney] and I have no objection to it.” Tr. 13:5-18.
[6] 20 U.S.C. § 1400 et seq.
[7] 34 C.F.R. § 300 et seq.
[8] Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200.
[9] Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104.
[10] M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017); Educ. Law § 4404[1][c].
[11] 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[12] 20 U.S.C. §§ 1401(9), (29).
[13] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[14] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[15] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[16] P-A-1; P-F-2¶9.
[17] Tr. 9-11.
[18] P-B; P-C; P-F.
[20] P-C-2.
[21] P-C-3.
[22] P-C-1; P-F.
[23] P-B-17.
[24] P-F-3¶15.
[25] P-F-2¶¶11, 12.
[26] Id. at ¶14.
[27] P-F-3¶18. Emphasis added.
[28] Tr. 8:1-10.
[29] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[30] Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518, 522, 523, 525 (D.C. Cir. 2005) citing G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 309, 40 IDELR 4 (4th Cir. 2003).
[31] Reid, 401 F.3d at 516, 522, 525 (emphasis in original).
[32] Reid at 522 (citations omitted). P-C, F.
[34] NYS Educ. Law § 4404(1)(c).
[35] Id.
[36] The Parent requests 120 sessions of 1:1 SLT at 30 minutes each session, to be conducted by a qualified provider of the Parent’s choosing, at market rate Tr. 8:1-10. The DOE did not object. Tr. 9.
[37] P-A-5.
[38] See 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006).
[39] DOE withdrew all exhibits prior to the hearing and declined to present a case. Tr. 11:1-10.