Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 247645

Student’s Name: [REDACTED] (“Student”)

School District: [REDACTED]

Impartial Hearing Officer: Ashley Grant

Date of Filing: 4/20/2023

Hearing Requested by: [REDACTED] (“Parent”)

Dates of Hearing: 5/23/2023, 6/22/2023, 7/19/2023, 8/21/2023, 9/11/2023, 10/6/2023

Record Close Date: 10/20/2023

Time Sensitive: YES

Date of Decision: 10/23/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 5/23/2023:

For the Parent:

[REDACTED], Esq. (“Parent Counsel”)

For the DOE

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON 6/22/2023:

For the Parent:

Parent Counsel

For the DOE

[REDACTED], Esq. (“DOE Counsel”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON 7/19/2023:

For the Parent:

Parent Counsel

For the DOE

DOE Counsel

NAMES AND TITLES OF PERSONS WHO APPEARED ON 8/21/2023:

For the Parent:

Parent Counsel

For the DOE

DOE Counsel

NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/6/2023:

For the Parent:

Parent Counsel

[REDACTED] (“Parent”)

[REDACTED] (“Neuropsychologist”)

For the DOE

DOE Counsel

INTRODUCTION

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”).

PROCEDURAL HISTORY AND BACKGROUND

This matter comes before me on the Parent’s due process complaint (“DPC), filed on or about 4/20/2023. The Parent alleges that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) from January 1, 2021 through the end of the 2022-2023 school year, a period of two and a half school years. Ex. A. As relief, Parent seeks compensatory speech language therapy (“SLT”), occupational therapy (“OT”) and remedial academic instruction. ^[1]

I was appointed to this matter on 4/24/2023 and held a prehearing conference (“PHC”) on 5/23/2023 and status hearings on 6/22/2023, 7/19/2023 and 8/21/2023. At the request of the parties, I granted a series of extensions of the compliance date to allow for the completion of evaluations conducted pursuant to a resolution agreement. Ex. I, II, III, IV. I cancelled a merits hearing scheduled for 9/11/2023 because I was called for jury duty on that day. The parties then appeared for a merits hearing on 10/6/2023.

DOE Counsel emailed in advance of the merits hearing to advise that the DOE was not defending FAPE. Tr. 28. On 10/6/2023, Parent’s counsel made an opening statement. Tr. 29-31. The DOE declined to make an opening statement. Tr. 2. Attorneys for both sides confirmed that the only issues in dispute are the appropriateness of Parent’s requested SLT and OT services. Tr. 34-35.

The DOE initially indicated that it intended to introduce documentary evidence but ultimately declined to do so and rested. Tr. 35-39. I then admitted, without objection, Parent’s proposed Exhibits A through E, which include the affidavit testimony of [REDACTED] “SLP” and [REDACTED] “Neuropsychologist.” Tr. 40. The DOE initially declined to cross either witness. However, after Parent re-called Neuropsychologist to testify regarding his occupational therapy recommendation, DOE cross-examined the witness. Tr. 41-44, 49-67.

The DOE declined to make a closing statement. Tr. 68. Parent’s Counsel made an oral closing statement. Tr. 68-70. A detailed list of exhibits is appended to this decision.

The parties made a joint request for an extension of the compliance date which I granted. Tr. 71-72, Ex. V.

JURISDICTION

The due process hearing was held, and this decision is rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ Law Art 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200.

Parent also filed her DPC under Section 504 of the Rehabilitation Act, but did not specify any claims that were not subsumed by the IDEA claims. Ex. A. As such, I find that Parent’s Section 504 claims are subsumed by her IDEA claims.

FINDINGS OF FACT

After considering all the evidence, as well as the closing arguments of both parties, my findings of fact are as follows:

Student is a [REDACTED]-year-old diagnosed with autism. Ex. B-1. The DOE created IEPs for Student dated 5/21/2020 (“2020 IEP”) and 5/12/2022 (“2022 IEP”). Ex. C-2. Neither party introduced these IEPs as evidence. It is not clear from the record whether the DOE created an IEP in 2021.

Speech Therapy

For the entire time period in question, Student’s IEPs mandated SLT for two 30-minute session (“2x30”) per week in a group of two. Ex. D-1, Tr. 47-48. Parent’s DPC alleges that this mandate was inappropriate. Ex. A-3.

Pursuant to a resolution agreement, SLP evaluated Student on 6/11/2023. Ex. B. SLP is a Speech Language Pathologist licensed in New York State who has been working in the field of pediatric speech language therapy for over 10 years. Ex. D-1. SLP’s evaluation included her own assessments and impressions from discussions with the speech language therapist who worked with Student during the 2022-23 school year. Ex. D-1.

SLP reviewed Student’s 2020 and 2022 IEPs but did not have access to any intervening IEPs. Ex. D-1. SLP concluded that the 2x30 per week of SLT mandated by these IEPs was “insufficient to allow [Student] to make meaningful progress” because that mandate was not sufficiently frequent and because Student continues to demonstrate “remarkable deficits [] in all areas of language, impacting her development of vocabulary, reading comprehension and . . . writing” and because “[e]xtreme deficits were also found in [Student]’s pragmatic/social language skills and metalinguistic language skills, which impacts her ability to engage in the classroom, with peers and in the community.” Ex. D-2.

Academic Tutoring & OT

Neuropsychologist evaluated Student on 7/18/2023 and 7/25/2023. Ex. C. Based on his evaluation, Neuropsychologist recommended that Student receive academic remediation and occupational therapy (“OT”). Ex. E.

Parent requested that I order the 378 hours of compensatory academic instruction that Neuropsychologist recommended and DOE advised that it was not disputing this request. Ex. E-2, Tr. 31-34.

Although neither party introduced an OT evaluation, attorneys for both parties acknowledged that the DOE OT evaluation conducted pursuant to the parties’ resolution agreement did not recommend OT for Student. Tr. 31, 33.

LEGAL FRAMEWORK

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07; Cerra, 427 F.3d at 192.

The IDEA requires ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989). School districts are not required to "maximize" the potential of students with disabilities. Rowley, 458 U.S. at 189, 199. Nonetheless, the district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'." Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130. The IEP must be "reasonably calculated to provide some 'meaningful' benefit." Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Endrew F., 580 U.S. at 403 (holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"). The recommended program must also be provided in the least restrictive environment. 20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1).

In general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i). 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. N.Y. Educ. Law § 4404(1)(c).

When school districts do not provide a FAPE, IHOs have broad authority regarding relief, “restrained only by the Supreme Court’s directive that ‘the relief is to be appropriate’ in light of the purpose of the Act.” L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016) (citing Burlington, 471 U.S. at 369). Although the IDEA “does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, [the United States Department of Education’s Office of Special Education Program’s] position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary…to ensure that a child receives the FAPE to which he/she is entitled.” Letter to Kohn, 17 IDELR 522, OSEP 1991.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524.

ANALYSIS

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. 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).

The Parent alleges that the DOE failed to provide the Student a FAPE and denied Parent meaningful participation in the development of Student’s IEP from January 2021 through the end of the 2022-23 school year by, inter alia, recommending inappropriate speech mandates, providing Parent inadequate information regarding Student’s occupational therapy needs, failing to provide procedural safeguards, and offering insufficient special education supports. Ex. A. the DOE did not dispute any of these claims, I find that the DOE denied Student a FAPE for that entire time period.

REQUESTED RELIEF

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, when a school district denies a child a FAPE, IHOs have ‘broad discretion’ to fashion an appropriate remedy. Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). In this case, the relief requested by the Parent is equitable in nature, as she is asking me to devise an appropriate remedy to address the DOE’s failure to offer the Student a FAPE for the 2023-24 school year.

As noted above, the DOE declined to introduce any evidence in this case and conceded that the only issue in dispute was the appropriateness of the Parent’s requested speech and OT services. Tr. 34-35. The DOE then failed to discharge its obligation to describe its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that could most reasonably and efficiently place the Student in the position he would have been in but for the denial of a FAPE. See SRO Appeal No. 16-033 at 11, citing Doe v. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015).

Academic Tutoring

Parent requests that I order the 378 hours of compensatory academic tutoring that Neuropsychologist recommended to address Student’s academic deficits in reading, writing and math. Ex. A, E-2, Tr. 31. As the DOE indicated that the appropriateness of this relief was not in dispute, and as the appropriateness of this relief is supported by the substantive record, I find that the requested academic tutoring is one equitable remedy for the DOE’s failure to provide Student with a FAPE during the time period in question. Ex. C, E-2, Tr. 34. Accordingly, I will order this relief.

Speech Language Therapy

The unrebutted conclusion of both Student’s evaluating neuropsychologist and speech language therapist is that the 2x30 per week of SLT mandated by Student’s IEPs during the 2020-21 through the 2022-23 school years was insufficient to allow Student to make adequate progress. Ex. D-2, E-2. For the reasons detailed below, I find that whether using a qualitative or quantitative analysis, 276 hours of SLT is equitable relief for the DOE’s failure to provide Student with sufficient SLT during the 2020-21 through the 2022-23 school years.

After conducting a thorough evaluation of Student, SLP recommended that Student receive individual SLT for two 45-minute sessions (“2x45”) per week to target Student’s expressive and receptive language and recommended an additional 2x45 per week by a speech therapist, licensed clinical social worker or speech psychologist to target Student’s expressive and receptive goals in a social setting and to work on pragmatic and social skills. Ex. B-19, D-2. Taken together, SLP testified that Student “should have had speech language therapy for a total of three hours a week since the 2020-21 school year.” Ex. B-19, D-2. SLP recommended in her report that compensatory services be provided in the form of a bank of 276 hours of SLT equivalent to three hours per week, for 46 weeks per year, for two years (3 hours x 46 weeks x 2 years = 276 hours). Ex. B-19. I find this quantitative analysis persuasive and appropriate to compensate Student for the FAPE denials during the prior two years. Additionally, SLP’s report says that her initial recommendation of 276 hours of compensatory SLT “was derived from a qualitative clinical approach, considering [Student]’s current needs and the time she will need to “catch up” to make her whole.” Ex. B-19 (emphasis added). Therefore, whether analyzing the request through a quantitative or qualitative lens, I come to the same result that 276 hours of compensatory SLT is appropriate compensatory relief to put Student in the position she would have been in but for the DOE’s failure to recommend appropriate SLT service.

I note that SLP testified via affidavit that she did not have the 2021-22 IEP when making her recommendation of 276 hours, and that the initial recommendation “did not account for an assumption that the missing IEP from the 2021-22 school year contained the same deficient mandate as the one before it and the one after it.” Ex. D-2. SLP went on to testify that “assuming that the IEPs for all three years contained the same insufficient mandate for speech language therapy, [she] would increase [her] recommendation to a bank of 414 hours of speech and language therapy to address [Student’s] significant deficits.” Ex. D-2. Although all three of Student’s IEPs include the same mandate, SLP provided neither a qualitative nor a quantitative explanation for why 414 hours of SLP constitute appropriate compensatory relief. As such, I find that SLT in excess of the 276 hours she originally recommended is not supported by the record and I decline to award additional hours based on this evaluation.

Occupational Therapy

Parent alleges, and the DOE does not dispute, that although OT had been part of Student’s earlier IEPs, it was removed during the 2019-20 school year, a decision made without appropriate evaluations. Ex. A. The DOE then failed to recommend appropriate OT supports on Student’s IEPs from 2021 through the end of the 2022-23 school year. Ex. A-2 to A-3.

Representatives for both parties indicated that the DOE conducted an OT evaluation and that the OT evaluator declined to recommend OT. Tr. 31, 33. However, neither party offered the evaluation as evidence.

Neurologist wrote in his report and testified credibly that, based on his evaluation, student requires OT to improve her fine motor skills, spacing of letters, and to assess Student’s sensory needs. Ex. C-15 to C-16, Tr. 52. SLT corroborated this finding when she reported that Student’s sizing of lowercase letters is inconsistent and distracting at times but did not make any recommendations regarding OT. Ex. B-11. A sample of Student’s handwriting contained in the speech evaluation show that Student’s placement of letters like “g” and “y” are irregular, appearing above the line. See Ex. B-11. Neuropsychologist testified that he would expect OT to help Student with word spacing and with placement of letters, such as where a “g” should go below the line. Tr. 61-62. As such, I find that the record supports Student’s need for OT to compensate for the DOE’s failure to evaluate Student’s OT needs and to recommend OT from 2021 through the 2022-23 school year.

Nevertheless, I find that the record is insufficient to order any specific number of hours of OT as compensatory relief. Neuropsychologist did not recommend any specific number of hours in his report and when questioned on direct, recommended at least two hours of OT per week because although “her handwriting is actually legible . . . she really, really struggles to write sentences that are grammatically and mechanically correct” and OT would “be a safe, controlled place for her to practice . . . writing her responses.” Tr. 54, 57. Neurologist’s testimony regarding the number of hours Student needs seemed tentative and beyond his area of expertise. For example, he testified, “it’s tough for me to say, like what – what exactly it is that she that – that she needs. But I can say that I’m surprised a student with her profile wasn’t getting [OT]” Tr. 61. As such, I decline to credit his recommendation that two hours per week of OT is appropriate compensatory relief and will instead order an independent OT evaluation by a provider of Parent’s choosing and, after completion of that evaluation, will order the CSE to reconvene to review the independent evaluation and to determine an appropriate occupational therapy recommendation. I find that an independent OT evaluation and subsequent IEP meeting is equitable relief for the DOE’s failure to evaluate Student’s OT needs and to recommend appropriate OT services.

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 Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above findings of fact, it is hereby ordered, that the DOE shall fund the following compensatory services for the DOE’s failure to offer Student a FAPE from January 2021 through the 2022-23 school years:

1. ORDERED that the DOE shall fund 378 hours of academic tutoring to address Student’s deficits in reading, writing and math, from a provider of Parent’s choosing, at market rate; and

2. ORDERED that the DOE shall fund 276 hours of speech language therapy, by a licensed speech pathologist of Parent’s choosing, at market rate.

3. ORDERED that the DOE shall fund a comprehensive occupational therapy (“OT”) evaluation by a provider of Parent’s choosing at the evaluator’s regular market rate.

a. After the completion of this evaluation, the Parent shall provide the DOE with a copy of the evaluator’s completed report.

b. Within 30 days of receipt of the evaluation report, the DOE shall convene a committee on special education (“CSE”) meeting to develop an IEP consistent with the recommendations of that evaluation.

4. ORDERED that the DOE’s Implementation Unit shall authorize all services hereby ordered within fourteen (14) days of this order.

SO ORDERED.

DATED: October 23, 2023

Ashley Grant (signed electronically)

Impartial Hearing Officer

Ashley Grant

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

NONE

PARENT EVIDENCE

A. Request for Impartial Hearing 4/20/2023 (5 pages)

B. Speech & Language Evaluation 7/20/2023 (22 pages)

C. Neuropsychological Evaluation 7/18/2023 and 7/25/2023 (20 pages)

D. Affidavit of [SLP], MS. SLP-CCC 9/1/2023 (2 pages)

E. Affidavit of [Neuropsychologist], Ph.D. 9/28/2023 (3 pages)

IHO EXHIBITS

I. Order of Extension 6/16/2023 (1 page)

II. Order of Extension 7/19/2023 (1 page)

III. Order of Extension 8/21/2023 (1 page)

IV. Order of Extension 9/8/2023 (1 page)

V. Order of Extension 10/20/2023 (1 page)

Footnotes

[1] Parent’s DPC also included requests for IEEs. Ex. A. However, at the PHC, the parties advised that the DOE had agreed, via a resolution agreement, to fund an IEE consisting of a speech evaluation, OT evaluation and neuropsychological evaluation. Tr. 5.