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CASE NUMBER: - NYC: 246344
FINDINGS OF FACT AND DECISION
Student’s Name [1]: “Student”
Date of Birth: [REDACTED]
School District: NYC DOE
Hearing Requested by: “Parent”
Request Date/Date Complaint Filed: 3/1/2023
Date(s) of Hearing: 8/22/2023
Actual Record Closed Date: 8/31/2023
Date of Decision: 9/1/2023
Time Sensitive No Hearing Officer: Kenneth W. Gerver
INTRODUCTION
The Parent, through counsel, filed a Due Process Complaint (“DPC”) on March 1, 2023. I was appointed as Impartial Hearing Officer on March 5, 2023. The DPC alleges that the New York City Department of Education (the “DOE” or the “District”) failed to provide a free appropriate public education (“FAPE”) to the Student for the 2021-2022 and 2022-2023 school years. More specifically, Parent alleges that the District failed to appropriately evaluate the Student because, although Student is now [REDACTED] years old, his last three Individualized Education Programs (“IEPs”) are all based on evaluations done when he was only two. (Exhs. B, C, D, and E.) The Parent initially sought an interim order for evaluations, paid for by the District and conducted by professionals of Parent’s choosing. In an interim order dated May 9, 2023 (the “May Order”), I granted that relief. The evaluations were conducted, and Parent now seeks compensatory services, funding for an assistive technology device for communication, and an order for a reconvened IEP meeting. For the reasons set forth below, I grant Parent’s requests.
A Prehearing Conference (“PHC”) was held on April 3, 2023. Counsel for the Parent attended the PHC via WebEx. Despite receiving notice of the PHC, no one attended on behalf of the District. A Due Process Hearing (“DPH”) for the interim relief sought was held via WebEx on April 27, 2023 {the “April DPH”). Despite receiving notice of the April DPH, no one attended on behalf of the District. After due consideration, I issued the May Order granting Parent’s request for evaluations. While the evaluations were being conducted, a status conference was held on August 4, 2023. Despite receiving notice of this conference, no one attended on behalf of the District. Finally, on August 22, 2023, a DPH (the “August DPH”) for the relief sought here was held via eScribers. Once again, despite receiving notice of the August DPH, no one attended on behalf of the District.
At the April DPH, Parent entered into evidence Exhibits A through F. At the August DPH, Parent supplemented the record by entering into evidence Exhibits G through O [2]. As Exhibit O is the Parent’s affidavit, Parent did not offer any additional live testimony, but at the August DPH, Counsel for the Parent did present a combined opening and closing statement. Inasmuch as the District never appeared at any conference or hearing, it offered no exhibits, testimony or argument.
FINDINGS OF FACT
After a full review of the record generated at the August DPH, I make the following findings of fact relevant to this decision.
The Student is a [REDACTED]-year-old, who attends a public school. He is diagnosed with autism and presents with global delays across several areas, including his cognitive academic communications, sensory processing, and fine gross motor skills. He was initially evaluated by the District when he was two years old. Since then, however, the District never re-evaluated him until the IEEs that were performed pursuant to the May Order.
These IEEs, which are in evidence without any opposition by the District and without any evidence or argument by the District that the conclusions therein are incorrect or inappropriate for Student, recommend the following equipment and compensatory services: (a) 92 hours of parent counseling and training (Exs. H, M); (b) 210 hours of speech-language therapy (Ex. I); (c) 138 hours of occupational therapy (Ex. J); (d) 92 hours of physical therapy (Ex. K); (e) 20 hours of assistive technology training[3] (Ex. L); and (f) 2,760 hours of applied behavior analysis (“ABA”) therapy (Exs. H, M).
CONCLUSIONS OF LAW AND ANALYSIS
The IDEA states that children with disabilities are entitled to a Free Appropriate Public Education (“FAPE”). 20 U.S.C. § 1400 (d)(1)(A). In order to provide a Student with a FAPE, a school district must develop an Individualized Education Program (“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).
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 a 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)).
In this case, Parent is not seeking tuition reimbursement. Therefore, this case concerns two issues. First, whether the District provided the Student with a FAPE for the 2021-2022 and 2022-2023 school years, and second, whether the Student is entitled to the compensatory services sought. The District bears the burden of proof on both issues.
Here, although the DOE did not explicitly concede that it denied the Student a FAPE, it effectively did so. In failing to appear at any conference or at the DPH, it offered no documents into evidence, presented no witnesses and made no argument that it had satisfied its obligation to provide Student with a FAPE. Specifically, it provided no explanation or evidence how the CSE made its recommendations, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefits. In short, the DOE failed to “offer a cogent and responsive explanation for their decisions” in creating the IEP, and it is “through the IEP that ‘[t]he “free appropriate public education” required by the Act is tailored to the unique needs of’ a particular child.” Endrew F., 137 S. Ct. at 1002.
Therefore, I am constrained to find that the DOE failed to offer the Student a FAPE for the school years at issue. As such, I do not need to discuss each of Parent’s allegation, and I must find that the DOE failed to offer the Student a FAPE for both the 2021-2022 and 2022-2023 school years. Moreover, a review of the record establishes that the weight of the evidence supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for both school years.
Here, Parent is seeking compensatory services and an assistive technology device with software. Tr. 18. [4]
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”).
As noted, the DOE bears the burden of proof – including the burden of production and burden of persuasion – on compensatory claims in New York. NY Educ. Law § 4404(1)(c). In compensatory cases in New York, it is “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[5] 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.
At hearing, the Parent introduced evaluations in support of each of the services and supports she was requesting. Exs. G through N. The DOE offered no evidence, testimony or argument in opposition to the Parent’s requests, and as such, did not carry its burden with respect to the requested services or equipment. Therefore, I am ordering that Student receive those services and equipment, as specified below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. The District shall, within 35 days of the date of this order, convene an IEP review meeting to revise Student's program and prepare an appropriate IEP taking into consideration the findings and recommendations of the IEEs.
2. The District shall, within 35 days of the date of this order, provide the Student with assistive technology in the form of an iPad with the program TouchChat WordPower 60.
3. The District shall fund the following compensatory services for the Student, to be provided by private providers of the Parent's choosing at a reasonable market rate consistent with rates that have been paid by the implementation unit for comparable services within 6 months of the date of the order:
a. 92 hours of compensatory parent counseling and training;
b. 230 hours of compensatory speech language therapy;
c. 138 hours of compensatory occupational therapy;
d. 92 hours of compensatory physical therapy;
e. 20 hours of compensatory assistive technology training; and
f. 2,760 hours of compensatory ABA therapy
SO ORDERED.
DATED: September 1, 2023
/s/ Kenneth W. Gerver
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 – REDACTION IDENTIFICATION PAGE
INTENTIONALLY OMITTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Parent’s Impartial Hearing Request 3/1/2023 8 pages
B. Social History 2/25/2020 3 pages
C. Individualized Education Program (“IEP”) 9/22/2020 13 pages
D. IEP 8/17/2021 15 pages
E. IEP 5/5/2022 22 pages
F. Rate Sheets Undated 3 pages
G. Early Intervention Individualized Family Service Plan 4/16/2020 5 pages
H. Neuropsychological Evaluation 7/10/2023 24 pages
I. Speech-Language Evaluation 7/3/2023 10 pages
J. Occupational Therapy Evaluation 7/14/2023 15 pages
K. Physical Therapy Evaluation 6/29/2023 10 pages
L. Assistive Technology Evaluation 7/7/2023 14 pages
M. ABA Skills Assessment 6/15/2023 19 pages
N. Functional Behavior Assessment 6/20/2023 21 pages
O. Parent Affidavit 8/21/2023 3 pages
DOE EXHIBITS
1. N/A -- --
IHO EXHIBITS
I. N/A -- --
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[3] Exhibit L also specifically recommends that Student be provided with iPad with the program TouchChat WordPower 60.
[4] References to “Tr.” are to the transcript of the August DPH.
[5] Of course, here, the District did not comment at all on – let alone fault – Parent’s requests