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FINDINGS OF FACT AND DECISION
Case Number: 249028 Student’s Name: [REDACTED]
OSIS # [REDACTED]
School Location : N.Y.C. Dept. of Ed., District # [REDACTED] Impartial Hearing Officer: Melanie Goldberg Date of Filing: 06/15/2023 Hearing Requested by: [REDACTED] Date of Hearing: 08/14/2023 Record Close Date: 09/13/2023 Date of Decision: 09/13/2023 Time Sensitive: No Case No. 248970
NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 14, 2023:
[REDACTED] (hereinafter referred to as “Parent”) — Student
[REDACTED] (hereinafter referred to as “Parent’s Witness”) — Student
(“DOE”): — DOE
[REDACTED] (hereinafter referred to as “District’s representative”) — DOE
BACKGROUND AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old classified as a student with autism under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
Parent, through counsel, filed a Due Process Complaint (“DPC”) on 6/15/2023. I was appointed on 6/20/2023 to preside over the claims in the DPC and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
Parent alleged that DOE failed to offer Student a free and appropriate public education (“FAPE”). In the DPC, parent sought: 15 hours per week of bilingual Special Education Itinerant Teacher (“SEIT”); 3 hours per week of bilingual Speech-Language Therapy; 1 hour per week of Parent counseling and training (“PCAT”), and a 12-month program. Parent was also seeking compensatory education consisting of: 420 hours of SEIT at a reasonable market rate provided by an independent provider/agency selected by the parent; 84 hours of bilingual
Speech-Language Therapy at a reasonable market rate provided by an independent provider/agency selected by the parent; 28 hours of Occupational Therapy (“OT”) at a reasonable market rate provided by an independent provider/agency selected by the parent; 28 hours of Physical Therapy (“PT”) at a reasonable market rate provided by an independent provider/agency selected by the parent. At the hearing, parent modified the compensatory education request to 200 hours SEIT, 30 hours of SLT, 20 hours of PT, and 20 Hours of OT. [1]
These hours are for services student allegedly missed between February through June. 2 A prehearing conference was held virtually on 7/17/2023. A Prehearing Conference Summary was issued the same day.[3] A second Prehearing Conference was held on 8/1/2023, and a Prehearing Conference Summary and Order was on the same day. [4]
On 8/14/2023, both parties appeared virtually for a hearing. The DOE did not submit any evidence or call any witnesses. Parent submitted 13 exhibits into the record and called two witnesses, Parent’s Witness, the student’s teacher, and Parent. Parent’s counsel and District’s representative made an oral closing statement on the record on 8/14/2023 after the close of
Parent’s case.
As detailed below, I find that the DOE failed to offer the Student a FAPE for 2022-2023 and 2023-2024 school years. As a result, I am awarding the student 280 hours of compensatory SEIT services, 28 hours of 1:1 Speech-Language therapy and 14 hours of 2:1 Speech-Language therapy, 28 Hours of OT 1:1, 14 Hours of PT 2:1, 14 hours 1:1 PT, a 12-month program consisting of 15 hours per week of bilingual SEIT; Speech-Language Therapy individually two times a week for 30 minutes, Speech-language Therapy in a group of no more than two once a week for 30 minutes, Occupational Therapy on an individual basis one time a week for 30 minutes, Occupational Therapy in a group of up two once a week for 30 minutes, and Physical Therapy in a group of up two twice a week for 30 minutes for the 2023-2024 school year.
LEGAL FRAMEWORK
The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”). 5 A FAPE consists of specialized education and related services designed to 20 U.S.C. §1400(d)(1)(A).
meet a student’s unique needs, delivered in conformity with a comprehensive written IEP. [6]
When the local education district complies with the procedural requirements outlined in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been provided.[7] To meet its substantive obligations to provide a FAPE, 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.” [8]
The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” 9
Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [10]
In New York, in IDEA due process hearings, school districts have the burden of proof, including the burden of persuasion and burden of production, except that a parent or person in a parental relationship seeking tuition reimbursement for a unilateral parental placement (not applicable here) has the burden of persuasion and burden of production on the appropriateness of such placement. [11]
The student is a “Preschool child” meaning “a child with a disability as defined in section forty-four hundred one of this article who is first eligible for services as defined in paragraph f of this subdivision but who will not have become five years of age on or before December first of the school year.” 12 A child shall be deemed a preschool child through the month of August of 20 U.S.C. § 1415(b)(6)(A).
the school year in which the child first becomes eligible to attend school pursuant to section thirty-two hundred two of this chapter. 13
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" 14. The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools.[15] Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational “services” for their child with a disability by filing a request in the district where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made.[16] Then, the district of location's CSE must review the request and “develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP].” [17]
The implementation of IESP services falls on the district of location insofar as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent.” 18 The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school
13 Id.
14 Rowley, 458 U.S. at 203.
district.”[19] Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.
The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA 20. Under the IDEA, courts can “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.”[21] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. [22]
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 FAPE.[23] 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 district complied with its obligations under the IDEA. 24.
Compensatory education can serve as a “replacement of educational services the child should
20 See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017).
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[.]" [25]
Compensatory education awards may include payment for out-of-pocket educational expenses incurred 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 remedy.[26] Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. [27]
The purpose of a compensatory education award is to place the student in the position he/she would have been in had the district complied with its obligation under the IDEA.[28] An award of compensatory education can be crafted following either a quantitative approach or a qualitative approach. The “quantitative” approach is based on the amount of time that comprised the FAPE deprivation. 29 The “qualitative” approach is based on a student’s needs and on the specific educational deficits that resulted from the FAPE deprivation.[30] This approach requires a “fact-specific inquiry” 31 and “[t]he ultimate 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.” 32
The Second Circuit has not adopted a preferred approach and leaves the mechanics of structuring an award to the court’s discretion. 33 Irrespective of the approach taken in crafting the award, “the remedy must be ‘appropriate in light of the purpose of the Act.’” 34 In New York State, when a parent seeks compensatory relief, the burden is on the District to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.” 35
FINDINGS OF FACT AND DECISION
After a full review of the record, I make the following findings of fact and determinations.
It is uncontested that the Student and Parent reside in New York City and the Student attended School during the 2022-2023 school year and is re-enrolled there for the 2023-2024
school year.
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determined the following. In accepting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the veracity of their statements or the earnestness of their relevant opinions, and therefore find all the witnesses and
33 Doe v. East Lyme, 790 F.3d at 457 34 Doe. v. East Lyme, 790 F.3d at 457 citing to Burlington, 471 U.S. at 369. 35 Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis. It is hereby noted that although the District’s representative cross-examined Parent’s Witness, said cross-examination did not serve to rebut the relevant testimony in question.
1. DOE Concedes a FAPE was not provided
DOE did not defend that they offered the student a FAPE. DOE did not submit any evidence or call any witnesses. 36 Additionally, there was no dispute that the student had not received the services listed on the IEP for the months of February through June. The record shows the student had not received services on the IEP through August when the hearing took place.
2. SERVICES IN THE IEP
There is no dispute the CPSE met, created an IEP for the student, and that parent and both the director of the school the student attends and the student’s teacher attended the meeting. 37 There is no dispute that the student’s IEP provides the following services: 10 hours of SEIT services Speech-Language Therapy individually two times a week for 30 minutes, Speech-language
Therapy in a group of no more than two once a week for 30 minutes, Occupational Therapy on an individual basis one time a week for 30 minutes, Occupational Therapy in a group of up two once a week for 30 minutes, and Physical Therapy in a group of up two twice a week for 30 minutes. 38 The issue to be decided is whether the amount of services provided in the IEP are reasonably calculated to enable the student to receive educational benefits.
The student’s classroom teacher was the parent’s witness. 39 The parent’s witness testified that the student needs more than 10 hours of SEIT to receive educational benefit. 40 The parent’s
36 T p. 38 37
P. Ex. B2. 38
P. Ex. B15 39
P. Ex. L
P. Ex L2 paragraph 7.
witness testified the student would benefit from the maximum amount of SEIT possible, which the witness believed would be 20 hours a week. 41 The parent’s witness testified the student “…presents with severe symptoms of autism.” 42 The parent’s witness testified the student rarely makes eye contact, does not respond to his name, does not play with other children, and does not participate in age appropriate activities. 43 This testimony is supported by the classroom evaluation completed by a NYS Certified Bilingual School Psychologist.44 The parent’s witness testified in the class she teaches, three are three to four hours a day of pre-academic readiness skills, and that the student “would need somebody to be there with him to help him.” 45
The parent’s witnesses testified the student needs constant repetition and is concerned the student would regress if the student did not receive 12 month services. 46 The witness testified the student would regress over school breaks. 47 Additionally, the Neurological Report, completed by a Clinical Professor of Child Neurology, states that the student needs at least 15 hours of SEIT instruction to help develop skills in language, social, and communication. 48
The DOE did not provide evidence that 10 hours of SEIT were individualized to the student, or that it was sufficient to permit the child to benefit educationally from the instruction.
The parent testified that the district’s CPSE representative told her the maximum amount of hours of SEIT the student could receive is 10 hours. 49 The DOE also did not present evidence or testimony that a 10-month program is sufficient to permit the child to benefit educationally from
41 Tr. 59. 42 Id 43 Tr 59 and 60. 44
P. Ex E. 45 Tr 59 and 60. 46 Tr. 63. 47 Tr. 63. 48
P. Ex. K2 Tr. 86 and P. Ex M3.
the instruction.
In the DPC, Parent sought to increase the frequency in services for speech-language services, OT, PT, and for PCAT. However, these issues were not addressed during the hearing, or in the evidence provided. The evaluative data in the record, and the witness testimony is focused on
SEIT. 50 As a result, I will not order an increase in services for speech-language therapy, OT, PT, or parent counseling.
3. Compensatory Education
DOE did not meet its burden to specify which comp calculation should be used or agree to a specific number of hours. DOE did not dispute that the student was not receiving the services listed in the student’s IEP for the months of February 2022 through June 2023.
In order to place the student in the position the student would have been in had the district provided the services in the IEP, a I used a quantitative approach to make a determination. Since the parties neither disagree about the services listed in the IEP, nor was there a disagreement about the timeframe of February through June, I order the student receive compensatory services for the months of February through June.
The IEP provides for ten hours of SEIT a week, times four weeks in a month, from February through June, for a total of 200 hours. The IEP provides for speech-language therapy, one- and one-half hours a week, times four weeks in a month, from February through June, which is a total of 30 hours. The IEP provides for PT one hour a week, times four weeks in a month, for a total of 20 hours. The IEP provides for OT one hour a week, times four weeks in a month, for the months of February through June, for a total of 20 hours.
P. Ex. D, E, F, G, H, I , J, and K.
Because of the student’s age, the school year for the student extends through July and August. 51 As a result, student should also receive services for the months of July and August.
The IEP provides for ten hours of SEIT a week, times four weeks in a month, for July and August, for a total of 80 hours. The IEP provides for speech-language therapy, one- and one-half hours a week, times four weeks in a month, for a total of 12 hours. The IEP provides for PT one hour a week, times four weeks in a month, for a total of 8 hours. The IEP provides for OT one hour a week, times four weeks in a month, for the months of July and August, for a total of 8
hours.
ORDER
NOW, THEREFORE, GIVEN THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED:
(1) Student was denied a FAPE for the 12-month school years 2022-2023 and 2023-
2024
(2) The DOE shall fund, as compensatory relief, the following services:
A. 280 hours of compensatory Special Education Itinerant Teacher (“SEIT”)
services,
B. 28 hours of 1:1 Speech-Language therapy and 14 hours of 2:1 Speech-Language therapy,
C. 28 hours of 2:1 OT, and
D. 14 Hours of PT 2:1 and 14 hours 1:1 PT.
NY Educ. Law § 4404(1)(i).
(3) The DOE’s Implementation Unit is directed to pay the Parent’s private providers for the above services at reasonable market rates consistent with rates that have been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services within the six (6) month period prior to the date of this Order.
(4) The Committee on Special Education shall reconvene and develop an appropriate IEP recommending at a minimum: 12-month program consisting of 15 hours per week of bilingual SEIT; Speech-Language Therapy individually two times a week for 30 minutes,
Speech-language Therapy in a group of no more than two once a week for 30 minutes, Occupational Therapy on an individual basis one time a week for 30 minutes, Occupational Therapy in a group of up two once a week for 30 minutes, and Physical Therapy in a group of up two twice a week for 30 minutes for the 2023-2024 school year.
Dated: 9/13/2023
(Signed Electronically: MG)
Impartial Hearing Officer
Melanie Goldberg, Esq.
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.
PARENT’S EVIDENCE
NO. DATE NAME OF DOCUMENT # pp. ID/date EV/date A 06/14/23 Due Process Complaint 5 x B 03/06/23 Individualized Education Program 18 x C 03/06/23 Prior Written Notice 3 x D 01/25/23 Trilingual Psychological Evaluation 8 x E 01/25/23 Classroom Observation 3 x F 01/25/23 Trilingual Educational Evaluation 5 x G 01/25/23 Trilingual Social History 3 x H 01/29/23 Occupational Therapy Evaluation 5 x I 02/02/23 Trilingual Speech-Language Evaluation 5 x J 02/03/23 Preschool Evaluation Summary Report 3 x K 06/06/23 Neurological Report by [REDACTED]. 2 x L 08/07/23 Affidavit of [REDACTED] 2 x M 08/07/23 Affidavit of [REDACTED] 3 x
DOE‘S EVIDENCE
None
WITNESES
Parent
Name Relationship to student Estimated length of testimony
[REDACTED] Current preschool teacher affidavit
[REDACTED] parent affidavit
DOE
None
IHO EXHIBITS
EXHIBIT DATE NAME PAGES
I 7/17/2023 Prehearing Conference 3
Summary
II 8/1/2023 Prehearing Conference 3
Summary and Order
APPENDIX – REDACTION IDENTIFICATION PAGE
[REDACTED] Information Terms Used in FOFD
[REDACTED] Student
[REDACTED] Parent
[REDACTED] District’s representative
[REDACTED] School
[REDACTED] Parent’s Witness
Footnotes
[1] Transcript p. 81. Id.
[3] Ex. IHO-I
[4] Ex. IHO-II.
[6] See 34 C.F.R. §300.13.
[7] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 US 176, 206-207 (1982).
[8] Endrew F. v. Douglas County Sch. Dist. RE-1, 580 US 386 (2017).
[10] J.L. v. New York City Dept. of Educ., 324 F Supp 3d 455, 467 (SDNY 2018); see also Houston Indep. Sch. Dist. v. Bobby R., 200 F3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed App 12, 14 (2d Cir. 2011).
[11] NY Educ. Law § 4404(1)(c). NY Educ. Law § 4404(1)(i)
[15] see 34 CFR 300.137(a)
[16] Educ. Law § 3602-c(2)
[17] Educ. Law§ 3602-c(2)(b)(l) Educ. Law § 3602-c(2)(a)
[19] Educ. Law § 3602-c(2)(b)(1)
[21] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015)) (citation omitted).
[22] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[23] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008)
[25] 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").
[26] Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases).
[27] Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).
[28] See Newington, 546 F.ed at 123; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] 29M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation].
[30] See Reid, 401 F.3d 516 31 Id. at 524 32 Id.