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Case No. 248431
FINDINGS OF FACT AND DECISION
Case No. 248431
Student’s Name: REDACTED
Date of Birth: REDACTED
Home District: REDACTED
Hearing Requested by: Parent
Record Close Date: September 19, 2023
Decision Date: September 19, 2023
Hearing Officer: Eryn DeFontes, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED AT HEARING
Parent’s Attorney/Representative — Student
Executive Director of Service Provider Agency (“Provider Director”) — Student
For the New York City Department of Education: (“District” or “DOE”) — Parents
DOE Representative — Parents
PROCEDURAL HISTORY
On May 19, 2023, a due process complaint (“DPC”) was filed against the New York City DOE by the Parent under Case No. 248431, 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.[1] The undersigned Impartial Hearing Officer (“IHO”) was appointed on May 23, 2023. A pre-hearing conference was held on June 26, 2023, where Parent requested interim relief in the form of independent educational evaluations (“IEEs”).[2] The parties appeared virtually for a due process hearing on August 7, 2023. The DOE did not present a case.[3] The Parent proffered exhibits P-A through P-BB, in addition to the testimony of the Neuropsychologist, board certified behavior analyst, (“BCBA”), occupational therapist, (“OT”), Director/service provider and the Parent. The DOE Representative cross-examined the Director/service provider.[4] A list of the documentary evidence is appended to this Order.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA and its implementing regulations, and the New York State Education Law and its implementing regulations. 5
POSITIONS OF THE PARTIES
The Parent alleges that the DOE denied the Student a free appropriate public education (“FAPE”) for each of the 2020-2021, 2021-2022, 2022-2023 and 2023-2024 school years (“SYs”) and requests various forms of relief. 6 The DOE failed to put forth a case, defend FAPE, or proffer exhibits, despite its burden to do so. 7
LEGAL STANDARDS AND FRAMEWORK
In IDEA impartial due process proceedings conducted in New York, the burden is on the 20 U.S.C. § 1400 et seq.; 34 C.F.R. § 300 et seq.; Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200. 6 P-A.
Tr. 18:5-15 (DOE waived “prong 1”); see, NYS Educ. Law § 4404(1)(c).
DOE to establish that it provided a student with a FAPE.[8] Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 9 A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 10
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.[11] 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. [12]
As this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
FINDINGS OF FACT
In this case, the DOE did not sustain its burden of proof.[13] Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying claims contained in the documentary evidence and testimony, to the extent those facts are credible and are not contradicted by the hearing record. Notwithstanding DOE’s failure to sustain its burden, the instant hearing record establishes that the DOE both procedurally and substantively denied the Student a FAPE for the SYs at issue through its failure to provide the Student with specialized education and related services designed to meet the Student’s unique needs, provided in conformity with comprehensive IEPs, in addition to the DOE’s failure to properly evaluate the student. 14 The DOE presented no evidence to the contrary.
20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
20 U.S.C. §§ 1401(9), (29).
The Student in this case is a REDACTED-year-old child classified by the DOE’s Committee on Special Education (“CSE”) as a child with a disability.[15] Pursuant to a neuropsychological evaluation performed over several days in 2023, the Student’s deficits and need for an appropriate program and placement are well-documented:
[Student] underwent an evaluation in 1st grade, and was classified as a student with a learning disability. She has been educated in a small inclusion class within the REDACTED program of the [DOE], which is a program designed to support students on the Autism Spectrum. She has been receiving Special Education Teacher Support Services (SETSS) with some inconsistency over the past several years, and no services were delivered during remote learning resulting from the COVID-19 pandemic.
[Student’s] test results illustrate her exceptional cognitive abilities alongside profound difficulties with reading and spelling. 16
[Student’s] profile is consistent with a specific learning disability in reading, namely dyslexia. [Student] needs immediate, intensive, individualized intervention focused on increasing her reading fluency. 17
[The Student] requires placement in a special education school setting that serves students with language-based learning disabilities. She should be placed in a small classroom within a small school, with ample structure, 1:1 teacher attention, and responsive feedback. She will need access to 1:1 and small group multi-sensory instruction that considers her attention and executive functioning vulnerabilities. 18
It will be important for [Student’s] teachers to monitor her progress and work completion closely to determine whether she is mastering instruction with confidence, and is applying her learning independently at the expected level. She may need scaffolding and repetition in the area of initiation, self-monitoring, and choosing the best way to solve a problem or do an assignment. 19
This will require placement in a NYS approved nonpublic school or a private school where [Student] will learn alongside similar learners to enable her to access her education. 20 The additional recommendations referenced from the hearing record will be considered in the succeeding relief section.
Relief
The relief request by the Parent in this case 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 multiple SYs at issue.[21] In this case, the Parent requests, inter alia, an independent auditory processing evaluation. [22]
An independent educational evaluation (“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.” 23 The unrefuted evidence, including the Parent’s IEE request and speech language evaluation support the Parent’s request. To wit, the evaluating speech hearing pathologist (“SLP”) notes:
Receptively, [Student’s] overall processing of spoken language falls within the average range for a child her age, towards the lower end of average. However, based on her performance on the 2023 Neuropsychological evaluation and her overall “exceptional cognitive abilities” per [Neuropsychologist], as well as her performance on the Auditory Processing Abilities Test (APAT) and the Understanding Spoken Paragraphs Subtest on the CELF-5, difficulties with language-processing may have impacted her overall performance and further assessment of auditory processing skills is warranted. 24
The DOE failed to present any evidence to the contrary, failed to defend its evaluations, failed to prove that Student should not have been assessed in the areas of suspected disability, and failed to propose an alternative compensation plan. 25 Based upon the foregoing, the Student is entitled to funding and/or reimbursement for an independent auditory processing evaluation, which shall be conducted by a qualified provider of the Parent’s choosing, at a reasonable market rate.
In addition, the Parent in this case seeks compensatory relief so as to remedy multiple
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). 24 P-I-12.
Tr. 18-4-15.
years of FAPE denial. 26 It is widely held that compensatory relief encompasses “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". 27 Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies”.[28] 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’”. [29]
Lastly, “if IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves”,[30] thus, compensatory education…is a “replacement of educational services the child should have received in the first place”. 31 Parent’s witnesses’ detailed and individualized remedial proposals for the Student are credible and based upon a comprehensive review of the Student’s assessments and evaluations, which address instances where the Student’s IEPs fell short, and thereby link the remedial services proposed to the deprivations experienced. 32
Notably, the burden of proof lies with the school district during an impartial hearing. 33 Here, the DOE did not specifically refute or contest any witness recommendation, nor did the DOE offer insight or alternate proposals to remedy the multiple denials of FAPE. 34
Accordingly the credible evidence establishes that the Student is entitled to both prospective and compensatory education and services in the amount, duration and frequency
26 P-A-13; P-S-3, 8, 20-28; P-T-3. 27 Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 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).
recommended by Parent’s witnesses, unless otherwise noted. Such relief is appropriate and designed to place the Student in a position they would have been but for the denial of FAPE. 35
Transportation
The Parent requests transportation to and from school. 36 The DOE is reminded of its obligation to provide disabled students with “suitable transportation to and from special classes or programs”. The DOE did not object to such request. Therefore, the Parent’s request is granted.
Attorney’s Fees
Parent included a claim for attorneys’ fees in the DPC. 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 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 the undersigned, such request is denied.
CONCLUSION
The DOE denied the Student a FAPE for the 2020-2021, 2021-2022, 2022-2023, and 2023-2024 school years. The undersigned further finds that in the absence of any contradictory evidence from the DOE, the rates duration and frequency of services detailed in the Compensatory Services Plan and affidavits are reasonable. 39
35 See, P-I-13; P-M-4; P-S-3, 8; 20, 26, 27; P-T-3. Parent’s request to “Order the district to assign an individual from its Impartial Hearing Order Implementation Unit (“IHOIU”) to serve as a contact person for the Parents regarding the implementation of the order” (P-A-14¶18(g)), is denied. The undersigned shall not intrude upon the DOE’s discretion, circumvent the implementation process, or attempt to remedy “systemic” violations. See SRO 23-155 at 7. 36 P-A-12. 37 Id. at 14. 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). P-C; S; T.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that the DOE shall defer the Student’s placement to the CBST for placement in an appropriate NPS;
2. IT IS FURTHER ORDERED that the CSE team shall convene within fifteen (15) days of receipt of all evaluations referenced in the hearing record, including the independent evaluations referenced in IHO iv, to review the results therein and create an appropriate IEP that includes at a minimum:
i. A 12-month school year, ii. Accurate PLAAFP, 40 iii. Specific and measurable goals, iv. Appropriate modifications, accommodations and related services as set forth in the evaluations and reports referenced in the hearing record,
v. Specialized transportation;
3. IT IS FURTHER ORDERED that the DOE shall provide and fund the following bank of compensatory hours to be provided outside of school hours, during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, to be provided at the prevailing market rate which the DOE Implementation Unit has paid for substantially similar services to the same provider(s) during the twelve months preceding the date of this decision, or if it has not paid the same provider(s) within the preceding twelve months, what it has paid for substantially similar services to a similar provider during the twelve months preceding the date of this decision:
i. 966 hours of Intensive and Individualized Academic Remediation (“IIAR”)
to be conducted by a NYS certified provider at reasonable market rate,
Present levels of academic achievement and functional performance. Endrew F., 137 S. Ct. at 988.
ii. 138 hours of counseling, to be conducted by a NYS certified provider at reasonable market rate, iii. 184 hours of SLT, to be conducted by a NYS certified provider at reasonable market rate, iv. A Central Auditory Processing Evaluation, to be conducted by a qualified provider of the Parent’s choosing, at reasonable market rate,
v. 138 hours of OT, to be conducted by a NYS certified provider at reasonable market rate; vi. 46 hours of AT instruction, to be conducted by a qualified provider at reasonable market rate, vii. 46 hours of AT instruction for the Parent, to be conducted by a qualified provider at reasonable market rate;
4. IT IS FURTHER ORDERED that the DOE shall authorize any Ordered services, instructions, or payments within thirty (30) days of invoice submission to the DOE;
5. IT IS FURTHER ORDERED that the bank of compensatory services set out in #3 of this Order shall not expire until the expiration of three (3) years from the date of this Order;
6. ORDERED that within thirty (30) days of this Order, the DOE shall fund an independent auditory processing evaluation, to be conducted by a qualified provider of the Parent’s choosing, at providers’ customary and regular rates. SO ORDERED. Dated: September 19, 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
None
P-E IEP 01/20/23 18
P-F IEP 01/05/22 15
P-G IEP 01/13/21 16
P-H IEP 01/29/20 18
EVALUATIONS AND REPORT CARDS
P-I Speech/Language Evaluation 07/19/23 26 P-J Occupational Therapy Evaluation 07/19/23 19 P-K Assistive Technology Evaluation 07/19/23 20 P-L Report Card 2, 2022-2023 03/27/23 2 P-M Neuropsychological Evaluation Multidates 14 P-N NYC DOE Psychoeducational Evaluation 01/16/23 6 P-O Final Report Card, 2021-2022 06/27/22 2 P-P Final Report Card, 2020-2021 06/24/21 2 P-Q Final Report Card, 2019-2020 06/30/20 2 P-R Final Report Card, 2018-2019 06/25/19 2
ADDITIONAL DOCUMENTS
P-S Compensatory Service Plan 07/31/23 30
P-T Affidavit of Executive Director 07/31/23 5
P-U Affidavit of REDACTED 07/21/23 8
P-V Affidavit of Dr. REDACTED 07/31/23 8
P-W Affidavit of Parent 07/31/23 10
P-X Resume of REDACTED Undated 2
P-Y Resume of Executive Director Undated 2
P-Z Resume of REDACTED Undated 3
P-AA Resume of READACTED Undated 4
P-BB Curriculum Vitae of Dr. REDACTED Undated 7
IHO Exhibits
IHO i DPC 5/19/23 18pp
IHO ii IEE Request 3/27/23 4pp
IHO iii DPR 5/30/23 3pp
IHO iv IEE Interim Order 6/26/23 6pp
Footnotes
[1] P-A. Parent withdrew claims for meeting notes and SESIS records (P-A-14(a)(b); Tr. 17:11-25.
[2] See Interim Order, IHO iv.
[3] Tr. 18:4-5; 20:21-25.
[4] Tr. 21:6-9.
[8] 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).
[11] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[12] NYS Educ. Law § 4404(1)(c).
[13] Tr. 18:4-5. P-A-N; S-V.
[15] P-A-12. Student’s classification is not in dispute. 16 P-M-1. 17 Id. 18 Id. 19 Id. P-M-4, 5.
[21] P-A-12-14.
[22] Tr. 36:15-18.
[28] See, Doe v. East Lyme, 790 F.3d at 454.
[29] Reid, 401 F.3d at 516, 522, 525 (emphasis in original).
[30] Id. at 522. 31 Id. at 518. 32 P-S-8, 20-28; P-T; P-W. 33 (Educ. Law § 4404[1][c]; see also, M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]) (holding that “it is not persuasive for the district to simply fault the parent's request for relief without also explaining its own view on what type of compensatory education relief would be the student's least restrictive environment]”; SRO 11-091 (citing M.P.G. v. New York City Dep't of Educ.) Tr. 18.