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FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
Date of Birth: [REDACTED]
Home District: [REDACTED]
Hearing Requested by: Parent
Record Close Date: November 15, 2023
Decision Date: November 15, 2023
Hearing Officer: Eryn DeFontes, Esq.
Time Sensitive: YES
NAMES AND TITLES OF PERSONS WHO APPEARED AT HEARING
For the Student:
Parent’s Attorney/Representative
For the Parents:
Neuropsychologist/BCBA
Speech Language Pathologist
For the Department of Education:
(“District” or “DOE”)
DOE Representative
PROCEDURAL HISTORY
On July 3, 2023, a due process complaint (“DPC”) was filed against the New York City DOE by the Parent under Case No. 251790, 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 July 18, 2023. A pre-hearing conference was held on September 20, 2023. The undersigned presided over a limited hearing on the matter and thereby issued an Interim Order on October 16, 2023. A list of the documentary evidence in this proceeding is appended to this Order.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law, and its implementing regulations,[4] and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (Section 504). [5]
BACKGROUND AND POSITIONS OF THE PARTIES
The Student is a [REDACTED]-year-old child who is classified by the DOE’s Committee on Special Education (“CSE”) as a child with a disability.[6] The Parent alleges that the DOE denied the Student a free appropriate public education (“FAPE”) for the 2023-2024, school year (SY).[7] The Parent requests relief in the form of an “after-school special education services program consisting of five (5) forty five (45) minute sessions of PROMPT[8] therapy and five (5) forty five (45) minute sessions of Feeding therapy, provided by a bilingual speech pathologist of the parent’s choosing at a rate not to exceed $175 per session. [9]
The DOE proffered exhibits 1-3, rested its case upon such exhibits and called no witnesses.[10] The DOE representative maintained that the Student was provided with a FAPE for the SY at issue and “the standard rate” for services should be awarded.[11] The Parent presented a case consisting of exhibits A through N.[12] The DOE Representative cross-examined the witnesses.
LEGAL STANDARDS AND FRAMEWORK
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. 13 Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE.[14] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP.[15] 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. [16]
FINDINGS OF FACT AND DECISION
Pursuant to a June [13], 2023 IEP submitted by the DOE (June IEP), student is classified as “Autistic” with the following recommendations: placement in a NYS approved non-public school (NPS) 8:1+4 classroom setting with the following related services: parent counseling and training (PCAT) 4x per year for 60 minutes, individual Physical therapy (PT) 2x per week for 30 minutes, individual Speech-Language Therapy (SLT) 4 x per week/30 minutes, assistive technology (AT) devices and/or services, daily, as needed for home and school, transportation to and from school, and a 12-month special education program (ESY). 17 On May 8, 2023, a Neuropsychological evaluation was performed wherein the Student was diagnosed with autism spectrum disorder. 18 The neuropsychologist summarized the Student’s need for the requested relief:
Student continues to require speech-language therapy, provided individually (1:1), at least 4 times per week for 30 minutes to build her expressive and receptive language skills. Student’s school programming must include the provision of PROMPT speech-language therapy provided by a specialist in neurogenic speech-motor disorders and apraxia. This service is required in addition to the speech-language therapy provided on her IEP. [19]
I am in agreement with speech therapist, [REDACTED]’S recommendation of five, 45-minute minute sessions per week, individually (1:1), for a 12-month school year. [20]
Student’s oral-motor weaknesses place her at risk for problems with feeding safety and complications. She must continue to receive feeding therapy to improve her ability to safely eat as many foods and liquids as possible. [21]
The aforementioned evaluation is cited in the June IEP as the evaluative data available for review, in addition to the following progress reports: educational, speech language, OT, PT as well as a “private speech report provided by the parent”.[22] The Speech Language pathologist (SLP) credibly testified:
The purpose of the after-school speech-language and feeding/swallowing therapy program is to improve [Student’s] speech-motor planning, overall communication, and feeding/swallowing skills through provision of consistent and intensive high-quality services utilizing evidence-based skilled therapy techniques, including PROMPT)… [23]
Student’s current profile of speech-language deficits is in areas that are directly impacting her ability to learn academics, function independently, get her wants/needs met, and socialize in the classroom. She benefits from intensive, individualized PROMPT based speech language treatment five times a week, with sessions lasting 45 minutes in duration, during a 12- month academic year. It is critical for Student to receive comprehensive treatment, such as PROMPT, to improve her receptive and expressive
17 D-1-30-32. 18 P- H. language skills. [24]
Over the past five years, Student has demonstrated steady and consistent progress towards her speech goals with consistent attendance and the use of the PROMPT approach designed to remediate severe expressive and receptive language delays related to her diagnosis of ASD and CAS. If services are interrupted, there is a large potential for Student to regress on the strides she has made up to now. [25]
Student presents with a severe food refusal, which impacts her daily functioning, her ability to develop in a healthy manner, and her ability to take in an appropriate amount of calories and necessary minerals and vitamins. She also struggles with chewing and processing food before swallowing. [26]
My rate is $175 per hour which is a standard hourly rate for a New York State
PROMPT-trained speech-language pathologist in the community. This rate is comparable with rates charged by other PROMPT trained speech pathologists in the New York City area with the same level of experience. [27]
The Parent testified in support of the requested relief, including her insurance carrier’s refusal to cover the subject therapies, Student’s reliance upon “baby food” and a long-standing history of speech language challenges.[28] Furthermore, in support of claims of denial of FAPE and any attendant remedies, Parent’s representative cites “the doctrine of clear consensus”.[29] To wit, although an IEP must provide for specialized instruction in a student’s area of need, generally, a CSE is not required to specify methodology on an IEP, and the precise teaching methodology to be used by a student's teacher is usually a matter to be left to the teacher. [30]
However, where the use of a specific methodology is required for a student to receive an educational benefit, the student's IEP should so indicate.[31] Accordingly, if, as in this case, the evaluative materials before the CSE recommend a particular methodology, and there are no other evaluative materials before the CSE that suggest otherwise, and the school district does not conduct any evaluations "to call into question the opinions and recommendations contained in the evaluative materials," then, according to the Second Circuit, there is a "clear consensus" that requires that the methodology be placed on the IEP notwithstanding the testimonial opinion of a school district's CSE member (i.e. school psychologist) to rely on a broader approach by leaving the methodological question to the discretion of the teacher implanting the IEP.[32] The fact that some reports or evaluative materials do not mention a specific teaching methodology does not negate the "clear consensus". [33]
The DOE presented no evidence to the contrary. Based upon the foregoing, the hearing record supports an Order granting Parent’s requested relief. The recommendations referenced from the hearing record will be considered in the succeeding relief section.
Requested Relief
The relief request by the Parent 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 2023-2024 SY.[34] The Parent in this matter requests inter alia, an “after-school special education services program consisting of nine (9) 45-minute sessions of PROMPT and Feeding SLT provided by a bilingual speech pathologist of the parent’s choosing at a rate not to exceed $175 per session. [35]
Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies”.[36] 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’”.[37] Furthermore, “if IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves”.[38] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place”. [39]
The burden of proof lies with the school district during an impartial hearing. In this case, the witnesses’ detailed remedial proposals are credible and based upon a comprehensive review of the Student’s assessments and evaluations.[40] The DOE representative did not refute or contest any witness recommendations, nor did the DOE offer insight or alternate proposals to remedy the denial of FAPE.[41] Lastly, the undersigned further finds that in the absence of any contradictory evidence from the DOE, the rates to be charged for the respective services are reasonable and commensurate with prevailing market rates. [42]
Attorney’s Fees
Parent included a notice of claim for attorneys’ fees in their due process complaint.[43] 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.[44] 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 2023-2024 SY. The credible evidence supports an award of funding for an after-school special education services program consisting of five (5) 45-minute sessions of PROMPT therapy and five (5) 45-minute sessions of Feeding therapy, provided by a bilingual speech pathologist of the parent’s choosing at a rate not to exceed $175 per session for each service.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that the DOE shall fund an after-school special education services program consisting of five (5) forty-five (45) minute sessions of PROMPT therapy per week, to be provided by a bilingual speech pathologist of the parent’s choosing at a rate not to exceed $175 per session for each service;
2. IT IS FURTHER ORDERED that the DOE shall fund an after-school special education services program consisting of five (5) forty-five (45) minute sessions of Feeding therapy per week, provided by a bilingual speech pathologist of the parent’s choosing at a rate not to exceed $175 per session for each service;
3. 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;
4. IT IS FURTHER ORDERED that the DOE’s implementation unit shall authorize all services hereby ordered within fifteen (15) days.
SO ORDERED.
Dated: November 15, 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
DOE EXHIBITS
PARENT’S EXHIBITS
NO. DATE NAME OF DOCUMENT # pp. ID/date EV/date
A. Due Process Complaint 06/30/23 6 pages
B. Ten Day Notice 06/20/23 2 pages
C. Findings of Fact and Decision (IHO Case #171516) 09/28/18 7 pages
D. Findings of Fact and Decision (IHO Case No.185996) 03/01/20 14 pages
E. Findings of Fact and Decision (IHO Case No.227538) 07/01/23 11 pages
F. Psychological Evaluation by Psychologist, M.D. 07/25/18 3 pages
G. Neuropsychological Evaluation by Neuropsychologist, Ph.D. 02/25/19 12 pages
H. Neuropsychological Evaluation by Neuropsychologist, BCBA 05/08/23 12 pages
I. Agreement with SLT Provider 06/30/22 1 page
J. Speech-Language Progress Report 10/09/23 8 pages
K. PROMPT Speech-Language and Feeding-Swallowing Evaluation 05/05/23 16 pages
L. Affidavit Of SLP 10/10/23 6 pages
M. Affidavit of PARENT 10/10/23 3 pages
N. Affidavit of Neuropsychologist, BCBA (Curriculum Vitae Attached)*AFFIRMED ON THE RECORD 10/12/23 6 pages
Footnotes
[1] P-A.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq., 8 NYCRR § Part 200.
[5] Regulations implementing Section 504 in the context of educational institutions appear at 34 C.F.R. Part 104. However, as relief in the matter is available pursuant to the IDEA, any claims set forth pursuant to Section 504 are hereby subsumed by the IDEA and will not be addressed separately.
[6] P-A Student’s classification is not in dispute.
[7] Id.; See P-A-4: Parent withdrew claims for tuition funding and/or reimbursement and funding for independent evaluations. Tr. 25:16-25; Tr. 26:1-9.
[8] Prompts for Restructuring Oral Muscular Phonetic Targets. Tr. 66:15-17.
[9] P-A-3.
[10] Tr. 39:15-20.
[11] Tr. 73:1-10 (the DOE representative maintained, “the enhanced rate has not been justified.”)
[12] Parent’s exhibits D and E were precluded as irrelevant Tr. 30:22-25; Tr. 32:14-19. Exhibit N was affirmed on the record by affiant Neuropsychologist/BCBA. Tr. 55.
[13] 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).
[14] 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2)
[15] 20 U.S.C. §§ 1401(9), (29).
[16] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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 district” (Educ. Law § 3602-c(2)(b)(1)).
[19] Id.
[20] Id.
[21] Id. at 4, 5.
[22] D-1-2.
[23] P-L-3; Tr. 60-72.
[24] Id.
[25] Id.
[26] Id. at 4, 5.
[27] Id. at 5.
[28] Tr. 49-50.
[29] Tr. 36:13-24.
[30] Rowley, 458 U.S. at 204; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2012 WL 2708394, at *15, *17 [S.D.N.Y. May 24, 2012]; A.S. v New York City Dep't of Educ., 10-cv-00009 [E.D.N.Y. May 26, 2011] [noting the "broad methodological latitude" conferred by the IDEA].
[31] See, e.g., R.E., v. New York City Dep’t of Educ., 694 F.3d 167, 194 (2d Cir. 2012) [finding an IEP substantively inadequate where there was "clear consensus" that a student required a particular methodology, but where the "plan proposed in [the student's] IEP" offered "no guarantee" of the use of this methodology].
[32] A.M. v. New York City Dep't of Educ., 845 F.3d 523, 544-45 [2d Cir. 2017].
[33] R.E., 694 F.3d at 194.
[34] P-A-3 (including any further relief deemed “just and proper”).
[35] Id.
[36] See, Doe v. East Lyme, 790 F.3d at 454.
[37] Reid, 401 F.3d at 516, 522, 525 (emphasis in original).
[38] Id. at 522.
[39] Id. at 518.
[40] P-G-K.
[41] 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]”; see also, SRO 11-091.
[42] P-L-5¶¶17, 18; P-I-1; P-N-10-12; Tr. 63.
[43] P-A-4.
[44] 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).