New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 596853 - NYC: 246282

FINDINGS OF FACT AND DECISION

Student’s Name: Redacted (“Student”)

Date of Birth: Redacted

School District: NYC DOE

Hearing Requested by: Redacted (“Parent(s)”)

Request Date/Date Complaint Filed: 2/28/2023

Date(s) of Hearing: 5/4/2023

Actual Record Closed Date: 6/11/2023

Date of Decision: 6/12/2023

Hearing Officer: Daniel M. Hochbaum

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”), the New York Education Law, and/or Section 504 of the Rehabilitation Act of 1973. This case concerns Student, an REDACTED-year-old 5th grader who attends the Charter School (“Charter School”). Ex. A:1. In the Parent’s Due Process Complaint (“DPC”), the Parent alleged that the Department of Education (“DOE”) failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2020-2021, 2021-2022, and 2022-2023 school years. Ex. A:1.

The Parent requests that I order the following relief: (1) a declaratory finding that the DOE denied the Student a FAPE for the school years at issue, (2) an amendment of the Student’s Individualized Education Program (“IEP”) to require the Student to addend a State-approved Non-Public School, (3) a reconvene of the IEP team to develop an appropriate IEP, (4) funding for independent and/or private evaluations including testing in the areas of Speech-Language, Central Auditory Processing, Occupational Therapy, and Assistive Technology, (5) compensatory services in reading, writing, math, executive functioning, Speech-Language, Counseling, Occupational Therapy (“OT”), and Assistive Technology (“AT”), and (6) any other relief that I deem appropriate. Ex. A:14-16; Tr. 33-38.

As discussed below, I find that the DOE denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. I further find that the DOE did not carry its burden with respect to the relief, and that the Parent’s requested relief is appropriate.

PROCEDURAL HISTORY

The Parent filed this case on 2/28/2023. Ex. A:1. The DOE appointed me to hear this case on 3/1/2023. The DOE filed a response to the DPC on 3/3/2023. IHO Ex. I. I conducted Pre-Hearing Conferences (“PHC”) with the Parties on 4/3/2023 and 4/20/2023. PHC1 Tr. 4, PHC2 Tr. 4.

I held a hearing on 5/4/2023. Tr. 6. It was a closed hearing. Parent’s counsel represented the Parent. Tr. 6. DOE counsel represented the DOE. Tr. 6.

During the hearing, the DOE counsel presented a brief opening statement in which he conceded that the DOE denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years, but that the compensatory relief the Parent sought was excessive. Tr. 15-16. The DOE did not enter any exhibits into evidence. Tr. 10-11. The DOE did not call any witnesses to testify. Tr. 10-11; 45. The DOE submitted a written closing brief on 5/17/2023. IHO Ex. II.

The Parent’s attorney delivered a detailed opening statement in which she argued that the DOE denied the Student a FAPE and that all of the relief would be supported by the evidence. Tr. 16-39. The Parent entered into evidence exhibits A-HH.^[1] Tr. 14. The Parent’s counsel submitted five affidavits containing the testimony of the following witnesses: the Speech Pathologist, Neuropsychologist #2, the Director of the Tutoring Agency, the Occupational Therapist, and the Parent. Ex. CC, DD, FF, GG, HH. I requested that Neuropsychologist #2 appear at the hearing and asked some questions. Tr. 48-53. The DOE did not cross examine any of the witnesses. Tr. 54. The Parent submitted a closing brief on 5/17/2023. IHO Ex. III.

FINDINGS OF FACT

In this case, the Parties did not dispute any material fact. Tr. 15-16, 45 As such, I will provide and an abbreviated recitation of the relevant facts and defer to more complete recitations in the Parent’s opening and closing statements.

The Student is an REDACTED-year-old 5th grader who attends the Charter School. Ex. HH:1. The Student first began receiving special education services in Kindergarten via an Individualized Education Services Plan (“IESP”) because she was attending a private parochial school at that time. Id. The Student left the parochial school and began attending the Charter School in 9/2020, when she was in 3rd grade. Id at 3. The Student had either an IESP or an IEP at all relevant times. See Ex. B, C, D, E, F, G, H, I, J.

The Student has been diagnosed with a variety of disabilities throughout her education. On 10/29/2019, the Student underwent neuropsychological testing by Neuropsychologist #1 who diagnosed the Student with a Language Disorder, Dyslexia, and a Specific Learning Disorder with impairment in math fluency. Ex. T:8. At the time of the 2019 testing, Neuropsychologist #1 found that the Student had difficulty with phonological processing, visual processing, decoding, encoding, reading fluency, comprehension of verbal information and directions, learning and recalling of verbal information, using verbal information on language-based tasks, math problem solving, attention, and executive functioning. Ex. DD:3. Neuropsychologist #1 also recommended a Central Auditory processing (“CAP”) evaluation, instruction using a multisensory phonics-based methodology (such as Orton Gillingham), a smaller classroom paired with Special Education Teacher Support Services (“SETSS”), and speech therapy. Id at 4-6.

Prior to entering the Charter School, the Student’s IESPs recommended 5 periods per week of SETSS with no other services. Ex. J:8, I:8. The DOE then developed five different IEPs for the Student from 6/23/2020 (after Neuropsychologist #1’s testing and just before she entered the Charter School) until now, and these IEPs covered the 2020-2021, 2021-2022, and 2022-2023 school years at issue in this case. Ex. F, E, D, C, B. The 6/23/2020 IEP recommended Integrated Co-Teaching (“ICT”) services with no other services. Ex. F:14. The 5/27/2021 IEP also recommended ICT services with no other services. Ex. E:19. The 10/26/2021 IEP recommended ICT services with Counseling Services once per week. Ex. D:20. The 10/12/2022 IEP recommended ICT services with SETSS for English Language Arts three times per week, SETSS for math two times per week, and Counseling Services. Ex. C:19-20. Finally, the DOE developed the Student’s current IEP on 1/4/2023, and it recommended the same program of ICT services with SETSS for English Language Arts three times per week, SETSS for math two times per week, and Counseling Services. Ex. B:22-23. None of the IEPs (which spanned three summers) recommended 12-month services. Ex. F:15, E:14-15, D:21, C:21.

On June 17, 2022, the Student underwent neuropsychological testing by Neuropsychologist #2 who diagnosed the Student with dyslexia, a Specific Learning Disability in Math Problem Solving, a Language Disorder, a Generalized Anxiety Disorder, and an Unspecified Neurodevelopmental Disorder, with impairment in attention and processing speed. Ex. DD:6-7. Neuropsychologist # 2 recommended that the Student be placed in a State-approved non-public school and that she receive instruction using multi-sensory reading methodologies, speech-language therapy, counseling, AT (including audio books and a text to speech device), and a CAP evaluation. Ex. M:7-9.

The Student struggled over the course of the three school years at issue. The Student regressed in some areas of academics and stagnated or made minimal progress in other areas. Compare Ex. HH:3, E:1, 2, 18 with B:28 and C:25. Due to her struggles with academics, the Student also regressed emotionally and, over time, developed “anxiety, panic symptoms, emotionality, social difficulties, a negative attitude to school, attention problems, a low self-esteem, and a sense of inadequacy.” Ex. DD:6-7. The Student also demonstrated sensory challenges, difficulty with handwriting, and visual processing as early as 2019. Ex. GG:3, HH:1. As noted above, the DOE did not provide the Student with Speech-Language Therapy or OT. Ex. F:14, E:19, D:20, C:19-20, B:22-23. The DOE recommended an AT device for the Student sometime in 12/2022 but did not provide it to the Student until 3/2023. Tr. 32.

Following the DOE’s most recent IEP meeting, the Parent initiated this due process hearing and requested the relief outlined above. Prior to the hearing, on 4/26/2023, the Parent had various specialists review the Student’s records to determine what services, if any, the Student required to address her growing deficits. Ex. EE. The specialists developed a “Compensatory Service Plan” which they proposed for the Student in addition to various evaluations and the change in program to a Non-Public School. Id.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the DOE’s alleged failure to provide the Student with a FAPE for three school years. Specifically, the Parent alleged that the DOE failed to: (1) recommend an appropriate program and placement for the Student, (2) meaningfully include the Parent in the development of the IEPs, (3) provide remote learning that was specially designed to meet the Student’s unique needs for the 2020-2021 school year, (4) offer appropriate compensatory services to address the gaps in the Student’s learning caused by COVID-19, (5) properly evaluate the Student (including in CAP, AT, OT, and Speech-Language), (6) provide appropriate Speech-Language services, (7) follow proper notice requirements when developing and changing the Student’s IEPs, (8) either grant an Independent Educational Evaluation (“IEE”) or initiate a due process hearing to defend its evaluations, (9) provide appropriate Counseling Services, (10) develop meaningful and measurable goals, (11) provide the Parent with regular progress reports, (12) timely provide the AT recommended on the Student’s 1/2023 IEP, (13) provide extended school year services over the three years at issue, (14) follow procedures regarding classifying the Student with a learning disability, (15) provide the Student with a reading instructor with sufficient training and expertise to deliver the instruction the Student needed, and (16) provide the Parent with certain educational records. Ex. A.

The DOE did not deny any of these allegations and conceded that it denied the Student a FAPE for the three school years. Tr. 10-11.

A. Statute of Limitations

As noted above, this case concerns the 2020-2021, 2021-2022, and 2022-2023 school years. The Parent filed this case on 2/28/2023. Ex. A:1. The IDEA’s statute of limitations is two years, and therefore, allows the Parent to raise violations dating back to 2/28/2021. 34 C.F.R. § 300.507(a)(2). However, as will be discussed below, this Student was protected by Section 504 of the Rehabilitation Act for all three school years. Section 504’s statute of limitations is 3 years. Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). As such, the period of claims from 9/2020-2/28/2021 are governed by Section 504.

B. Period of Claims Solely Under Section 504

Section 504 prohibits discrimination against qualified students with a disability. 29 U.S.C. § 794(a). Section 504 states, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

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 Section 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 [] persons [with disabilities] as adequately as the needs of [] persons [without disabilities] are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. § 104.33(b).

Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. § 104.3(j)(1). However, only students who have a substantial limitation of a major life activity are entitled to a FAPE. 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. § 35.108(c)(1)(ii).

A student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504. See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

In this case, the record demonstrates that the Student was an individual with a disability. In 2019, Neuropsychologist #1 diagnosed the Student with a Language Disorder, Dyslexia, and a Specific Learning Disorder with impairment in math fluency. Ex. T:8. These disabilities substantially limited the Student in major life activities including learning, reading, thinking, writing, and communicating. Id. The DOE did not contest the fact that the Student was an individual with a disability and developed IEPs for the Student for the 2020-2021 school year, further establishing that the Student was eligible under Section 504. Ex. F, E; see 34 C.F.R. § 104.33(b)(2) (stating that a district can meet the substantive FAPE requirements of 504 by developing and implementing an appropriate IEP).

The DOE conceded that it did not provide the Student with a FAPE during the 2020-2021 school year and, therefore, the Parent was not required to present information proving that the DOE denied the Student with a FAPE under 504 for the period outside of the IDEA’s statute of limitations. Tr. 10-11; Mrs. C., 916 F.2d at 74. Nevertheless, the Parent presented persuasive evidence that the DOE denied the Student a FAPE during the relevant period. Specifically, although the 2019 neuropsychological evaluation recommended a CAP evaluation, instruction using a multisensory phonics-based methodology, SETSS, and speech therapy, the 6/23/2020 IEP (which was in effect until the DOE developed a new IEP on 5/27/2021) did not provide any of these services. T:9-11; Ex. F. Additionally, while the DOE conducted a 2019 OT evaluation and did not recommend OT services, the Parent presented evidence that the Student had difficulties with attention and visual tracking, which were skills that could have been addressed via OT services in an IEP. Ex. I:4-5. As such, the DOE denied the Student a FAPE from 9/2020-2/2021, the period outside of the IDEA’s statute of limitations. ^[2]

C. Period of Claims Under IDEA

The IDEA states that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). To provide a Student with a FAPE, a school district must develop an IEP that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. The law states that a school district offers 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).

A district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” See Endrew F, 137 S. Ct. at 999. 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.” Id.

i. Burdens under IDEA

In IDEA due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – 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. NY Educ. Law § 4404(1)(c); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

In this case, the Parent is seeking evaluations, compensatory services, and for the Student’s IEP to be amended to recommend a State-Approved Non-Public School (“NPS”). Ex. A:14-16. As this case does not involve a parental unilateral placement, the burden regarding all elements of the case is on the DOE. NY Educ. Law § 4404(1)(c); Application of a Student with a Disability, Appeal No. 11-091 (SRO NY 2011).

At hearing, the DOE conceded that it denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. Tr. 10-11. Where the DOE concedes that it did not provide a FAPE, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district's failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district's failure to provide the student with a FAPE.” Id.

ii. Prospective Program

In the DPC, the Parent made two requests regarding revision to the IEP. First, the Parent requested that I order the DOE to revise the Student’s IEP to recommend an NPS program. Ex. A:14. Second, the Parent requested that the CSE be ordered to reconvene once the Student’s evaluations are completed to develop an appropriate IEP including revised goals, 12-month services, and appropriate related services.

Id. As the DOE conceded that the most recent IEP was inappropriate and the record contained sufficient information that such changes are warranted, I order the DOE to revise the IEP as outlined in the order section below.

Regarding the request for an NPS program, the DOE did not meet its burden of demonstrating that the Student can receive a FAPE without this type of program. In its closing brief, the DOE argued that the Student should not be placed in a NPS because it is “overly restrictive” for the student and this setting would not allow her to “be amongst mainstreamed peers.” IHO Ex. II:5. However, the DOE did not cite to any evidence in the record that an NPS would be too restrictive for the Student. Id. Additionally, the DOE did not explain what type of setting it believed would provide the Student with a FAPE. Id.

By contrast, the Parent presented clear information that the Student requires an NPS setting to progress. Neuropsychologist #2’s testified that that the Student “requires more support with developing academic skills and engaging and functioning in a learning environment given the minimal educational gains she has made over years, as well as the support she requires emotionally due to the impact on her self-esteem and feelings of anxiety and panic that the failure to provide her an appropriate program and remediation has caused.” Ex. DD:8-9. Neuropsychologist #2 specifically stated that the Student no longer has the skills to “participate in a general education classroom, and she will not make progress academically, socially, or functionally until these skills are remediated.” Id at 8. Neuropsychologist #2 therefore recommended an NPS program at the time of her evaluation in 2022 (Ex. M:7) and reiterated that recommendation in her testimony, stating that the Student “must immediately be placed in a small class in a non-public school for children with language-based learning disabilities.” Ex. DD:9. As such, the Student requires an NPS program to receive a FAPE.

Regarding the request for other revisions to the IEP, I find that a reconvene of the IEP team and certain revisions to the Student’s IEP are warranted now, and that a second reconvene is warranted following the completion of the evaluations that I order below. The DOE did not express a position on other revisions to the IEP and, therefore, did not carry its burden. Tr. 15-16; IHO Ex. II. For Speech-Language, the unrebutted information was that the Student requires Speech-Language therapy in the school setting 2x30 1:1 and 1x30 2:1. Ex. EE: 15-16. Additionally, the unrebutted testimony of the Parent’s OT was that the Student “requires immediate sensory-based occupational therapy to address ongoing deficits in her sensory processing skills and self-regulation, attention and focus, handwriting skills and written output, fine motor skills, visual-motor skills, executive function, and instrumental activities of daily living.” Ex. GG:5. Specifically, the OT recommended a minimum of 2x45 1:1 and a sensory diet until a comprehensive evaluation can be conducted. Id. As such, as indicated below, I order that these services be added to the Student’s IEP now.

With respect to other revisions to the Student’s program, including revised goals, 12-month services, and other revisions to the Student’s related services, the Parent should obtain the evaluations ordered below, provide the evaluations to the DOE, and then the team (including participants from the Student’s NPS) should reconvene within 5 days of receipt of the last of the ordered evaluations to consider those evaluations and develop an appropriate IEP for the Student.

iii. Evaluations

The Parent made requests for Speech-Language, CAP, OT, and AT evaluations in the DPC and at hearing.

With respect to the Speech-Language and CAP evaluations, the Parent argued that she was entitled to these assessments as an IEE. 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); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[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). When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).

In this case, the DOE did not carry its burden with respect to the IEE. The Parent submitted evidence that she wrote to the DOE on 2/15/2023 disagreeing with the DOE’s evaluation and requesting an independent speech-language evaluation and an independent central auditory processing evaluation. Ex. V:1-2. The DOE did not present any information showing that it authorized an IEE in these areas, nor did it file a hearing to defend its evaluation. Tr. 15-16. As such, the DOE did not follow the procedure outlined in the law, and the Parent is entitled to an IEE in the areas of speech-language and CAP as ordered below.

Regarding the AT and OT evaluations, these evaluations are warranted considering the DOE’s concession that it denied the Student a FAPE. Tr. 15. The DOE did not take a position regarding whether the evaluations were warranted or the appropriate rate for the evaluations at any point during the hearing or in its closing argument. Tr. 15-16; IHO Ex. II. The evidence showed that the Student had deficits in these areas that need to be evaluated. In OT, the Student has deficits in “sensory processing skills and selfregulation, attention and focus, handwriting skills and written output, fine motor skills, visual-motor skills, executive function, and instrumental activities of daily living.” Ex. EE:23. Regarding AT, Neuropsychologist #2 specifically testified that the Student “needs a comprehensive assistive technology evaluation to determine what device and applications would allow her to work at a higher level, attend to her reading better, and organize herself.” Ex. DD:11. Therefore, the Parent is entitled to private AT and OT evaluations at the rates ordered below.

iv. Compensatory Services

The Parent further requested compensatory services to compensate the Student for the denial of FAPE over the course of the three school years at issue. Specifically, the Parent requested the following: 966 hours of intensive and individualized academic instruction, 138 hours of counseling services, 138 hours of speech-language therapy services, 138 hours of compensatory OT, 46 hours of AT instruction for the Student, and 46 hours of AT instruction for the Parent.

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). Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

At hearing, the Parent introduced a “Compensatory Service Plan” to support her request for compensatory services in each area. Ex. EE. The DOE argued that the Parent’s request for compensatory services was “excessive,” that Director (who also testified by affidavit and participated in the development of the Compensatory Services Plan) lacked proper training to assess the Student’s abilities and make recommendations, that the Director did not conduct any of her own testing of the Student, that the Director’s report did not reference raw data about the Student’s abilities (and therefore it could not reliably calculate the compensatory services needed), that the Director had a vested financial interest in the Student being awarded compensatory services, and that the number of hours of compensatory services would “cause a strain on this student and possibly preclude the student from participating in non-academic, extracurricular activities.” IHO Ex. II:2-4. I will address these arguments and then address each area of requested service.

First, the DOE argued that the amount of compensatory services the Parent requested was “excessive.” However, it was the DOE’s burden to show that the Parent’s request was excessive, and it was “incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district’s failure.” Application of the New York City Department of Education, Appeal No. 14-014. The DOE’s claim that the number of hours is “excessive” is conclusory, and the DOE did not call any of its own witnesses to propose an amount of compensatory services, cross examine any of the Parent’s witnesses, or otherwise develop the record to establish that the Parent’s request was excessive. Tr. 15-16, 45; IHO Ex. II:2-4. Therefore, the DOE did not carry its burden on this point.

The DOE also attacked the Director on a variety of bases. First, the DOE stated that the Director lacked the proper training, but the witness testified that she had a Master of Science in Education, ABA, and Autism, was in a PhD program related to curriculum and teaching, is both general education and special education certified, has training in Orton-Gillingham (a specialized intervention for teaching struggling readers), and various other experiences in special education. IHO Ex. II:4, FF:1. The DOE did not explain why this training was insufficient to enable the provider to make recommendations regarding the academic remediation hours. IHO Ex. II:4. Additionally, the DOE did not attack the experience or training of the two other witnesses, the OT and Speech Pathologist, or specify whether their recommendations for compensatory services were excessive. Id at 2-4. Second, the DOE argued that the Director did not conduct her own testing and that the reports did not contain the “raw” data for her to make an assessment. IHO Ex. II:4. The DOE did not explain why this individual did not have the experience or ability to review the reports of others or why conducting her own testing was necessary to make an informed recommendation about the level of compensatory Services the Student requires. Id. Additionally, the Compensatory Service Plan indicates that the witness reviewed all available data about the Student, including seven IEPs, four DOE evaluations, three report cards/progress reports, and two neuropsychological evaluations (which both included detailed reporting of the Students scores, percentile ranges, and grade equivalents). Ex. EE:1-2, M. T. Finally, while the witness certainly had a vested financial interest in the award of the compensatory services, the DOE did not cross examine the witness about this point or otherwise provide any evidence that the recommendation would have been different if not for the witness’ financial interest. Tr. 45; IHO Ex. II:2-4. Moreover, the DOE did not propose a different amount of compensatory services that would be appropriate for the Student, as was their obligation under New York’s allocation of the burden.

The DOE also argued that the number of hours of compensatory services would “cause a strain on this student and possibly preclude the student from participating in non-academic, extracurricular activities.” IHO Ex. II:4. However, the DOE did not cross examine the Parent or any other witness to establish that services would cause strain on the Student and, therefore, this claim was purely speculative. Tr. 45. Finally, there was no information in the record at all about extracurricular activities, and the DOE’s own wording – that the services would “possibly preclude” – showed that this too was speculative. IHO Ex. II:4. Therefore, I reject this argument as a basis for reducing the compensatory award.

While I will discuss each compensatory request in turn, I also note that the Parent provided support for the overall compensatory request. Neuropsychologist #1 described the services that she believed the Student needed in 2019 and the harm that would happen if the Student did not receive the proper support, Ex. T:7. Neuropsychologist #2 testified that because the Student never received the appropriate “services, supports, or remediation [Neuropsychologist #1] specified, the skills gap grew and [the Student’s] ability to decode words and comprehend what she is reading remain[ed] at the early skills development level.” Ex. DD:6. Neuropsychologist #2 continued that as a result of this failure, the Student “does not have the skills to do the current academic tasks being asked of her, her frustration has increased along with her anxiety, and her self-esteem lowered even further.” Id. Neuropsychologist #2, specifically endorsed compensatory services stating:

[the Student] requires an intensive remediation program outside of school in addition to an appropriate educational program. Her skills are far below grade level and will take time and repetition to master so that she can close the gap between her skills and academic expectations and become available to make progress in her daily academic school-based instruction. There is no reason that [the Student] cannot learn to grade level had she been remediated and taught appropriately, she must be provided the intensive program she requires.

Ex. DD:10 (emphasis added).

a. Academics and Executive Functioning

The Parent requested 966 hours of compensatory services to address academics and executive functioning. There was copious information in the record about the Student’s current deficits and the need for remediation. In reading, for example, Neuropsychologist # 2 testified that the Student had deficits in reading and reading comprehension, and that her overall reading scores were now at the second percentile which was “a significant decrease from the already problematic deficits in 2019.” Id at 8. In math, the Neuropsychologist explained that the Student “demonstrates significant deficits in math and math problem-solving skills…still lacks automaticity in her math facts requiring her fingers to count[, and] [h]er math problem-solving scores were at a beginning third-grade level, two years below grade level, and were affected by her language deficits.” Id at 8-9. Neuropsychologist #2 further stated that the remediation program must address writing using methodologies such as “Orton-Gillingham or Wilson, and the Hochman writing program.” Id at 10. The tutoring witness arrived at the recommendation of 966 hours by calculating 7 hours weekly, for 46 weeks, for 3 years “inclusive [of] Orton Gillingham instruction; Writing; Reading Comprehension; Math; and Executive Function instruction.” Ex. EE:2. The DOE did not present any information or elicit any testimony that the Student could be returned to the position she would have occupied but for the denial of FAPE with fewer hours. Tr. 15-16, 45; NY Educ. Law § 4404(1)(c). As such, I find the record supports this number of hours.

b. Speech-Language

The Parent requested 138 hours of compensatory speech-language therapy services. Tr. 34. The record clearly indicated that the Student needs speech-language services to access her education. According to the Speech-Language Pathologist, “[a]ppropriate Speech/Language therapy would have targeted reading comprehension including making inferences, grammar, receptive language including language processing, and attention.” Ex. EE:13. Additionally, according to the Student’s current IEP, she still struggles with skills that can be addressed by speech-language therapy, including vocabulary, inferencing, citing text evidence, understanding theme and key details in reading, spelling, and grammar.

Id. The speech-language therapist arrived at the recommendation of 138 hours by calculating 1.5 hours per week for 46 weeks for 2 years. Ex. GG:5. Again, the DOE did not present any information or elicit any testimony that the Student could be returned to the position she would have occupied but for the denial of FAPE with fewer hours. Tr. 15-16, 45; NY Educ. Law § 4404(1)(c). As such, I find the record supports this number of hours.

c. Counseling Services

The Parent requested 138 hours of compensatory counseling services. Tr. 34. The record included disheartening information about how the Student’s anxiety and emotions spiraled as she struggled academically. Ex. N:1-2, HH:4. Ultimately, Neuropsychologist #2 stated that the Student was reporting “anxiety, panic symptoms, emotionality, social difficulties, a negative attitude to school, attention problems, a low self-esteem, and a sense of inadequacy” and her academic challenges “exposed [her] to further harm to her sense of self.” Ex. DD:6-7, 9. The Compensatory Services Plan arrived at the recommendation of 138 hours by calculating 1.5 hours per week for 46 weeks for 2 years.^[3] Ex. EE:8. Once again, the DOE did not present any information or elicit any testimony that the Student could be returned to the position she would have occupied but for the denial of FAPE with fewer hours. Tr. 15-16, 45; NY Educ. Law § 4404(1)(c). As such, I find the record supports this number of hours.

d. Occupational Therapy

The Parent requested 138 hours of compensatory occupational therapy services. Tr. 34. According to information in the record, the Student presents with “significant deficits in her sensory processing skills and self-regulation, attention and focus, handwriting skills and written output, fine motor skills, visualmotor skills, executive function, and…activities of daily living.” EE:17. Additionally, these deficits impact her writing, reading, ability to use school materials, ability to complete projects, and her ability to interact with peers and adults. Ex. EE:17. The Compensatory Services Plan arrived at the recommendation of 138 hours by calculating 1.5 hours per week for 46 weeks for 2 years. Ex. EE:17, GG:5. Once more, the DOE did not present any information or elicit any testimony that the Student could be returned to the position she would have occupied but for the denial of FAPE with fewer hours. Tr. 15-16, 45; NY Educ. Law § 4404(1)(c). As such, I find the record supports this number of hours.

e. Assistive Technology

The Parent requested 46 hours of compensatory assistive technology instruction for the Student and an additional 46 hours of compensatory assistive technology instruction for the Parent. Tr. 34. According to the most recent IEP, the DOE agreed that the Student needed assistive technology to support her learning. Ex. B:11. Additionally, the Parent introduced information that although she received some training from the DOE regarding assistive technology, there were complications because the DOE could not download necessary extensions and the Student could not fully access the device because the Student had an email address from the Charter School and not the DOE. Ex. EE:21. As a result, this led to a “very brief overview of the programming, leaving both [the Parent] and [the Student] with minimal understanding of the device and its intended programming.” Id. The DOE did not introduce any information suggesting that these services were unwarranted or that the amount was too high, nor did the DOE cross examine the Parent or the Occupational Therapist about these services, and therefore did not carry its burden. Tr. 15-16, 45; NY Educ. Law § 4404(1)(c). Instead, the record suggested that the Student needed this support so that she can “utilize her device effectively” and that the Parent needed this support “to enhance device understanding, knowledge, and carryover for [the Student’s] assistive technology device.” Id at 22-23. As such, I find the record supports this number of hours.

For the reasons explained above, I find that the record supports the Parent’s request for the compensatory services, and I order the services as outlined below.

ORDER

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

1. The DOE shall, within 35 days of this Order, assign an individual from its Impartial Hearing Order Implementation Unit (“IHOIU”) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 35 days of the date of this order. The contact person shall respond to any inquiry by the Parent (or their attorney) concerning the implementation of this order within 2 business days.

2. Within 5 school days of the date of this Order, the DOE shall reconvene an IEP meeting and revise the Student’s IEP to include the following:

a. A state approved Non Public School Day program;

b. Transportation to and from the Non Public School;

c. Speech-Language Therapy 2x30 1:1;

d. Speech-Language Therapy 1x30 2:1;

e. Occupational Therapy 2x45 1:1; and

f. A sensory diet.

3. The DOE shall, within 2 days of the date of the IEP meeting, assign an individual from its Central Based Support Team (“CBST”) to serve as a contact person for the Parent regarding the selection of an NPS Day program. The CBST contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 2 days of the date of the IEP meeting. The contact person shall respond to any inquiry by the Parent (or her attorney) concerning the search for an NPS Day program within 2 business days.

4. The DOE shall pay for the evaluations listed below at the rates below. The evaluations shall be conducted by providers) of the Parent’s choosing with, at a minimum, the same credentials the DOE requires of such evaluators for district-conducted evaluations. The DOE shall pay each provider within 35 days of receipt of an invoice and a copy of the final evaluation.

a. A Speech-Language Evaluation at a rate no more than $1,450.00; b. An Occupational Therapy Evaluation at a rate of no more than $1,450.00; c. An Assistive Technology Evaluation at a rate of no more than $2,000; and d. A Central Auditory Processing Evaluation at a rate of no more than $2,800.

5. Within 5 days of receiving the last of the evaluations above, the DOE shall reconvene the Student’s IEP team to consider the evaluations and determine whether any changes to the Student’s IEP are appropriate. The IEP team shall include at least one individual from the Student’s state-approved NPS. The IEP team shall, at a minimum, consider:

a. Revisions to the goals;

b. 12-month services; and

c. Revisions to the Student’s related service frequency, duration, and grouping.

6. The DOE shall provide the Student with a bank of 966 hours of compensatory academic and executive functioning instruction to be provided by a licensed special education teacher of the Parent’s choosing. The provider shall be paid $170 per hour. The services shall not expire.

7. The DOE shall provide the Student with a bank of 138 hours of compensatory individual Counseling Services to be provided by a provider of the Parent’s choosing with the same minimum credentials and certifications that the NYC DOE requires of providers who provide counseling services to students with disabilities in NYC DOE public schools. The provider shall be paid $150 per hour. The services shall not expire.

8. The DOE shall provide the Student with a bank of 138 hours of compensatory Speech-Language therapy to be provided by a licensed speech-language therapist of the Parent’s choosing. The provider shall be paid $180 per hour. The services shall not expire.

9. The DOE shall provide the Student with a bank of 138 hours of compensatory Occupational Therapy to be provided by a licensed occupational therapist of the Parent’s choosing. The provider shall be paid $180 per hour. The services shall not expire.

10. The DOE shall provide the Student with a bank of 46 hours of compensatory Assistive Technology training and instruction to be provided by provider of the Parent’s choosing. The provider shall be paid $180 per hour. The services shall not expire.

11. The DOE shall provide the Parent with a bank of 46 hours of compensatory assistive technology training to be provided by provider of the Parent’s choosing. The provider shall be paid $180 per hour. The services shall not expire.

12. The DOE shall pay the provider(s) for the services in 6-11, above, within 15 days of receipt of both:

a. Session notes for each session indicating the specific provider’s name, date of service, start and end time of each session, a paragraph describing the skills taught to the Student (or Parent) during each session, and measurable data/information regarding the Student’s progress during the session.

b. An invoice for the services provided and accompanying sworn affidavit attesting that the services billed for were provided.

13. If the Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate 3 providers who are ready, willing, and able to begin providing the services to the Student, according to the terms of this order. If the Parent presents a good faith basis for rejecting the 3 providers, the DOE must locate 2 additional providers from which the Parent may choose. The DOE shall not be required to identify more than 5 providers in any given 6-month period. Nothing stated here prevents the Parent from locating and utilizing a provider of the Parent’s own choosing.

SO ORDERED.

DATED: 6/12/2023

/s Daniel M. Hochbaum

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 B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Demand for Due Process Hearing 02/28/2023 16 pages

B. IEP 01/04/2023 31 pages

C. IEP 10/12/2022 28 pages

D. IEP 10/26/2021 28 pages

E. IEP 05/27/2021 20 pages

F. IEP 06/23/2020 20 pages

G. IEP 04/30/2020 13 pages

H. IEP 01/30/2020 13 pages

I. IESP 10/31/2020 11 pages

J. IESP 08/21/2019 11 pages

K. NYC DOE Speech/Language Evaluation 03/11/2023 7 pages

L. Second Semester Report Card SY 22-23 Undated 4 pages

M. Neuropsychological Evaluation 6/2022 13 pages

N. Report from School Social Worker 10/22/2021 3 pages

O. Request for Medical Transportation Accommodations 10/29/2021 1 page

P. NYC DOE Teacher Progress Report 03/15/2021 1 page

Q. Report from SETSS Provider 06/30/2020 2 pages

R. NYC DOE Speech/Language Evaluation 12/04/2019 6 pages

S. Report from Teacher 12/02/2019 1 page

T. Neuropsychological Evaluation 10/29/2019 17 pages

U. NYC DOE Psychoeducational Evaluation 08/07/2019 11 pages

PARENT

V. Request Letter Re: IEE 02/15/2023 2 pages

W. NYC DOE Prior Written Notice 02/17/2023 4 pages

X. NYC DOE Prior Written Notice 06/23/2020 3 pages

Y. Resume of Director Undated 2 pages

Z. Curriculum Vitae of Neuropsychologist #2 Undated 4 pages

AA. Resume of Occupational Therapist Undated 4 pages

BB. Resume of Speech Language Pathologist Undated 1 page

CC. Affidavit of Speech Pathologist and Audiologist Re: Rate 04/14/2023 2 pages

DD. Affidavit of Neuropsychologist #2 04/26/2023 11 pages

EE. Compensatory Service Plan 04/26/2023 27 pages

FF. Affidavit of Director 04/26/2023 7 pages

GG. Affidavit of Speech Pathologist 04/27/2023 6 pages

HH. Affidavit of Parent 04/25/2023 6 pages

DOE EXHIBITS

1. None N/A N/A

IHO EXHIBITS

I. Due Process Response 3/3/2023 4 pages

II. Closing Brief for the DOE 5/16/2023 5 pages

III. Parent’s Closing Brief 5/16/2023 44 pages

Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[2] The Student was eligible under 504 for all three years at issue, however I will analyze the remaining period from 2/28/2021- present solely under IDEA because of the allocation of the burden of proof in IDEA hearings in New York (to be discussed in the next section) and because the Parent did not identify any distinct 504 violation in the remaining period that is not also a violation of the IDEA.

[3] There is an apparent typo in the Compensatory Service Plan that states 3 years, rather than 2 years. Given that all other documents suggest 2 years, I will assume the drafter intended to write 2 rather than 3.