Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 248684

Student’s Name: STUDENT

School District: [REDACTED]

Impartial Hearing Officer: Michele Host

Date of Filing: June 2, 2023

Hearing Requested by: PARENT

Dates of Hearing: August 10, 2023

Record Close Date: August 18, 2023

Time Sensitive: YES

Date of Decision: August 21, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 10, 2023:

[REDACTED] (Parent’s Counsel) — Student

[REDACTED] (Parent) — Student

[REDACTED] (DOE Counsel) — DOE

INTRODUCTION

This matter concerns the Student, a student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

PROCEDURAL HISTORY AND BACKGROUND

This matter comes before me on the Parent’s due process complaint, filed on or about June 2, 2023. (P-A) The Parent alleges that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years. Specifically, the Parent alleges that the Committee on Special Education (“CSE”) that convened for the Student for the school years in question failed to provide the Student with a FAPE in multiple respects, including by failing to evaluate the Student in all suspected areas of disability, failing to provide the Student with services and instruction reasonably calculated to provide educational benefit, failing to design adequate Individualized Educational Programs (“IEPs”) for the Student, and failing to provide IEP-mandated related services consistently during the school years at issue. (P-A, p. 3)

As relief, the Parent sought an order directing the DOE to fund an independent neuropsychological evaluation of the Student; provide the Student with a new IEP incorporating the recommendations of the neuropsychological evaluation; fund 553 hours of 1:1 tutoring for the Student at a tutoring center (“Tutoring Center”); fund the costs of the Student’s diagnostic testing and registration at the Tutoring Center; provide transportation in the form of MetroCards; provide additional compensatory services; and pay the Parent’s attorneys’ fees and expenses. (PA, p. 5)

I was appointed to this matter on June 5, 2023, and I held a pre-hearing conference with representatives of both parties on July 13, 2023. During that conference, the parties informed me that most of the Parent’s claims in this matter were resolved through a partial resolution agreement dated June 26, 2023, and that the sole outstanding claim was the Parent’s claim for compensatory speech-language therapy (“SLT”) for the Student. Accordingly, we scheduled this matter for a due process hearing on August 10, 2023.

The parties provided me with a copy of the partial resolution agreement, which is in the record as IHO Exhibit I. 1 Under the partial resolution agreement, the DOE agreed to provide the Student with an independent neuropsychological evaluation at a cost not exceeding $6,000, and also agreed to schedule an IEP meeting for the Student within 15 school days of receipt of the final neuropsychological evaluation. (Id., pp. 1-2) The DOE also agreed to fund a bank of 553 hours of compensatory educational services for the Student at a cost of $110.00 per hour and pay for the diagnostic testing and registration fees incurred by the Parent when the Student was assessed by the Tutoring Center. (Id., p. 3) Therefore, the Parent’s sole remaining claim to be adjudicated in this matter was the Parent’s claim for additional compensatory relief in the form of compensatory SLT.

The due process hearing in this matter was held on August 10, 2023. The DOE entered exhibits^[1] through 6 into the record, without objection. (Tr. 15-16) The Parent offered proposed exhibits A through D, and the DOE objected to proposed exhibit B. (Tr. 16-17) I overruled that objection, but asked the Parent to withdraw proposed exhibit C, as it was duplicative of DOE’s exhibit 2. Parent’s Counsel agreed, and I entered Parent’s A, B, and D into evidence. (Tr. 16-17) The DOE waived its opening statement, and the Parent made an opening statement. (Tr. 18-21) The DOE then rested. (Tr. 21) The DOE then cross-examined the Parent, whose testimonial affidavit had been entered into evidence as Parent’s exhibit D. (Tr. 25-30) I asked several questions of the Parent, and the Parent rested. (Tr. 30-32) The cross-examination of the Parent and my questioning of the Parent were translated by a Spanish-language interpreter. (Tr. 14-15; 23) The DOE waived its closing argument, and the Parent made a closing argument.

(Tr. 32-33) The record in this case closed on August 18, 2023. A list of the documentary evidence in this proceeding is appended to this decision.

JURISDICTION

The due process hearing was held, and a decision in this matter is being 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 N.Y.C.R.R. Part 200, and Section 504 of the Rehabilitation Act.

The Parent did not identify any claims under Section 504 that are not subsumed under IDEA that would merit separate analysis and discussion. I find that the Parent’s 504 claims are subsumed within the framework of the IDEA, and I will not separately analyze the 504 claims raised in the complaint.

FINDINGS OF FACT

After considering all the evidence, as well as the closing argument of the Parent, my findings of fact are as follows: The Student was a fifth grader at a charter school during the 2022-2023 school year. (PD, ¶ 4) The Committee on Special Education (“CSE”) has classified the Student as a Student with a Speech or Language Impairment. (P-B; D, ¶ 4)

Three IEPs were entered into evidence in this matter. The IEPs are dated January 12, 2021; December 21, 2021; and February 28, 2023. 2 (D-2; D-5; P-C) All three IEPs discuss the Student’s speech and language deficits. (D-2; D-5; P-C) All three IEPs also recommend SLT for the Student. The January 12, 2021 IEP recommended SLT twice a week for 30 minutes in a group of 3 students; the December 21, 2021 IEP recommended SLT three times a week for 30 minutes in a group of^[2] students; and the February 28, 2023 IEP recommended SLT twice a week for 30 minutes in a group of 3 students. (D-2, p. 11; D-5, p. 13; P-C, p. 11)

In the Parent’s affidavit, she testified: Mandated Speech Language services have not been delivered during the school years at issue. For the 2022-2023 school year, [the Student] only began receiving Speech Language therapy in March 2023. Last school year, 2021-2022, the Speech Language therapy was only given for about 4 to 5 months because they didn’t have a therapist available. [The Student] should be awarded compensatory/make up Speech Language Therapy services as a result. (P-D, ¶ 7)

On cross-examination, the Parent explained that during the 2021-2022 school year, the Student’s school was intermittently shut down because of the COVID-19 pandemic, which resulted in the Student’s school not providing the Student with SLT. (Tr. 30-31)

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 school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities but 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 v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998)); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). 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 Rowley, 458 U.S. at 192.

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.

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). Compensatory Education

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. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster

v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

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). In this matter, the DOE entered six documents into the record but called no witnesses and did not make an opening or closing argument.

The Supreme Court has found a reviewing court may expect school district staff “to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas County School District, 137 S.Ct. 988, 1002 (2017). In this matter, by failing to call any witnesses or enter any evidence into the record that specifically addressed whether and when the Student received SLT during the 2021-2022 and 2022-2023 school years, the DOE failed to meet its burden. Therefore, I find that the DOE failed to offer the Student a FAPE for the 2021-2022 and 2022-2023 school years.

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, the courts 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 actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

As noted above, most of the Parent’s claims in this matter were resolved through a partial resolution agreement. The remaining 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 provide the Student with a FAPE for the 2021-2022 and 2022-2023 school years. Specifically, the Parent originally requested that I order the DOE to provide the Student with 120 30-minute sessions of 1:1 compensatory SLT at market rate, based on the fact that the Student only received approximately four or five months of SLT during the 2021-2022 school year, and 6 months of SLT during the 2022-2023 school year. (Tr. 30-31; 32-33)

DECISION

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the DOE complied with its obligations under the IDEA. Newington, 546 F. 3d at 123. A compensatory education award can be designed using either a “quantitative” or a “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation. Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Given that the deprivation still at issue in this matter focuses on the DOE’s failure to provide SLT for two discrete periods of time, this case lends itself more appropriately towards the quantitative approach.

Again, in this matter, most of the Parent’s claims have already been resolved through a partial resolution agreement. (IHO-I; Tr. 19) The only claim I am addressing in this decision is the DOE’s failure to provide the Student with the Student’s mandated SLT during the 2021-2022 and 2022-2023 school years. The Parent’s testimony on this issue is credible and uncontroverted by the DOE. Accordingly, I will grant the relief requested by the Parent.

OTHER RELIEF SOUGHT

In addition to the relief described above, the Parent sought attorneys’ fees and expenses in the Parent’s due process complaint. (P-A, p. 5) 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. 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). Only a court can determine if a party is entitled to attorneys’ fees, and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs. Therefore, to the extent that the Parent is seeking reimbursement and/or payment of attorneys’ fees and costs, the Parent’s request is denied.

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 Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above findings of fact, it is hereby:

1. ORDERED, that the DOE shall fund compensatory services for the Student in the form of 120 30-minute sessions of compensatory 1:1 speech-language therapy, at market rate; it is further

2. ORDERED, that the DOE’s Implementation Unit shall authorize all compensatory services hereby ordered within 14 days.

SO ORDERED.

DATED: August 21, 2023

Michele Host (signed electronically)

Impartial Hearing Officer

Michele Host

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.

DOE’S EVIDENCE

1. Due Process Complaint 6/2/2023 (8 pages; DOE)

2. Individualized Education Program 1/12/2021 (17 pages; DOE)

3. Prior Written Notice 1/14/2021 (9 pages; DOE)

4. Psychoeducational Evaluation Report 12/5/2019 (8 pages; DOE)

5. Individualized Education Program 12/21/2021 (20 pages; DOE)

6. Prior Written Notice 12/22/2021 (12 pages; DOE)

PARENT’S EVIDENCE

A. Impartial Hearing Request 3/31/2023 (5 pages)

B. Individualized Education Program 2/28/2023 (20 pages)

D. Parent Affidavit 8/2/2023 (2 pages)

IHO EVIDENCE

I. Partial Resolution Agreement 6/6/2023 (4 pages)

Footnotes

[1] IHO exhibits are cited as “IHO” followed by a roman numeral, the DOE’s exhibits are cited as “D” followed by a number, and the Parent’s exhibits are cited as “P” followed by a letter. The transcript of the due process hearing is cited as “Tr.” followed by a page number.

[2] I recognize that the February 28, 2023 IEP is largely directed towards the 2023-2024 school year. It is still relevant to this matter, however, because the Parent alleged a FAPE denial for the 2022-2023 school year in her due process complaint, and the implementation date of the IEP is March 14, 2023. (P-A; B) Moreover, the IEP contains relevant information about the Student’s present levels of performance and individual needs during the 2022-2023 school year.