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CASE NUMBER: 605106 - NYC: 252532
FINDINGS OF FACT AND DECISION
Case Number: 252532
Student’s Name[1]: (“Student”)
Date of Birth: REDACTED
School District: REDACTED (hereinafter “District”)
Hearing Requested by: REDACTED (hereinafter “Parent”)
Request Date/Date Complaint Filed: 08/11/2023
Date(s) of Hearing: 10/17/2023
Actual Record Closed Date: 10/19/2023
Date of Decision: 10/19/2023
Date of Distribution (if different than decision date):
Time Sensitive: No
Hearing Officer: Natacha Thompson, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10/17/2023
For the Student:
REDACTED (hereinafter “Parent’s Counsel”)
REDACTED (hereinafter “Parent”)
For the Department of Education:
REDACTED (hereinafter “DOE Counsel” or “District”)
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”) and the New York Education Law. The Parent[2] filed this case on August 11, 2023. For the reasons discussed more fully below, I find that: (i) the DOE failed to meet its burden that it offered Student a FAPE for the 2021-2022, and 2022-2023 school years, and (iii) Parent is entitled to requested relief.
PROCEDURAL HISTORY
Parent alleges in their due process complaint (“DPC”) that the District failed to provide Student with a FAPE for the 2021-2022, and 2022-2023 school years. Parent requests the District to fund a speech language evaluation and an occupational therapy evaluation, 481 hours of compensatory 1:1 tutoring, 152 sessions (76 hours) of compensatory speech, 38 sessions (19 hours) of compensatory counseling, 133 hours of compensatory occupational therapy, and transportation costs to and from all compensatory sessions. Parent also requests reimbursement for tutoring services for Student as a result of DOE’s FAPE denial. The District did not submit a response to the DPC. Following the filing of the DPC, I was appointed on August 15, 2023, as Impartial Hearing Officer (“IHO”) to preside over the merits of this matter.
A pre-hearing conference (“PHC”) took place on September 11, 2023. The compliance date is October 25, 2023.
I held a closed hearing on October 17, 2023. Parent was represented by Parent’s Counsel. DOE was represented by DOE Counsel. Parent entered into evidence exhibits A through Q. DOE did not present any exhibits.
Parent’s counsel presented a case that consisted of affidavit testimony by the Parent, and Provider Director. Parent’s counsel delivered a comprehensive closing statement that also served as their opening statement. DOE did not present any witnesses and did not cross-examine Parent’s witnesses.
DOE did not defend prong I and waived both an opening and closing statement.
FINDINGS OF FACT
Student is a REDACTED-year-old child whose disability classification is Speech or Language Impairment (P:B). At issue in this case is: 1) whether the DOE denied Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022, and 2022-2023 school years, 2) whether District should fund a speech language evaluation and occupation therapy evaluation, 3) whether District should fund as compensatory education a specific number of hours of speech language therapy, counseling, occupational therapy, tutoring, 4) whether District should fund transportation costs to and from all compensatory sessions, and 5) whether District should reimburse Parent for all monies paid for tutoring services.
CONCLUSIONS OF LAW AND ANALYSIS
The IDEA is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded a FAPE. See 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A FAPE is further defined as “educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and Parent of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B).
“Under the educational scheme of the IDEA … Parents of students with disabling conditions are guaranteed ‘both an opportunity for meaningful input into all decisions affecting their child's education and the right to seek review of any decisions they think inappropriate’”
Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008), quoting Honig v. Doe, 484 U.S. 305, 311-12, 108 S. Ct. 592, 598 (1988).
The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student with a disability received a FAPE. 20 U.S.C. § 1415[f][3][E][i]. A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982).
Burden
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. (NYS Educ. Law § 4404(1)(c)).
Compensatory Services
The Parent requested compensatory services for the District’s failure to provide the Student with a FAPE for the 2021-2022, and 2022-2023 school years. The District did not object to the Student receiving compensatory services.
A hearing officer may award compensatory education relief when there has been a denial of FAPE. 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. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. “[T]he ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place.” Reid v. District of Columbia, 401 F.3d 516, 524 (DC Cir. 2005).
Courts have frequently used a quantitative method to calculate the amount of services missed so that the services can be made up through compensatory education. M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996); Manchester Sch. Dist. V. Christopher B. 807 F. Supp. 860, 872 (D.N.H. 1992). Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE and award compensatory service with an eye towards making up that time. See M.C. v. Central Reg. Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996) (holding that “a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required by the school district to rectify the problem”).
The District did not object to, contradict, or offer rebuttal testimony regarding recommendations from the neuropsychological and Provider evaluations. Parent further testified that Student was not receiving SETSS and speech therapy sessions consistently, and for a period of time, Student was not receiving these services at all during the years in question. (P:Q004-Q005). Parent also testified that Student was not able to read, write, and perform math functions and that Student was well below grade level in these areas. (P:Q005). Provider Director testified that Student was administered several evaluations to determine Student’s skill levels to meet the expectations of the Common Core. (P:P002-003). Student’s results were poor, and so Tutoring Center recommended several hours of tutoring to address Student’s academic deficiencies. (P:P003-004).
I find that the Parent’s request for compensatory education is supported by the record and reasonably calculated to provide the educational benefits that would have accrued from special education services the District should have supplied in the first place. I find that a three-year period is an appropriate time to use the services ordered below. I also find that Parent’s request for the DOE to fund transportation costs to and from compensatory services is appropriate.
Speech Language and Occupational Therapy Evaluations
Parent testified that DOE failed to complete an updated speech language evaluation since January 2020. (P:Q001). The DOE further failed to complete an occupational therapy evaluation. The DOE did not rebut this evidence. To better determine Student’s speech and language skills and address whether Student requires occupational therapy, it is necessary for DOE to conduct a speech language evaluation and occupational therapy evaluation.
Reimbursement to Parent for Tutoring Services
Provider Director testified that Parent accrued $5297 in fees and charges for Student’s tutoring. (P:P008). Provider Director provided the services necessary to address Student’s needs. (P:P, Q). Parent’s evidence and Provider Director’s testimony support that $4895 was paid to Provider and there was a balance due of $402. (P:N,P). I found the testimony of Provider Director credible and convincing. (P:P). The District did not rebut Provider Director’s testimony. I therefore find that Parent is entitled to reimbursement for tutoring services in the amount of $5297.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. ORDERED, that the District fund a speech language evaluation and occupational therapy evaluation, within thirty (30) days of the date of this Order;
2. ORDERED, that the District reimburse Parent for tutoring services in the amount of $5297 within thirty (30) days of the date of this Order;
3. ORDERED, that the District shall fund 481 hours of compensatory 1:1 tutoring, at a rate not to exceed $120, by a qualified provider of Parent’s choosing, by issuing payment directly to such provider within 30 days of submission of a copy of the invoice; such compensatory relief shall expire in three years;
4. ORDERED, that the District shall fund 152 sessions (76 hours) of compensatory speech by an independent and qualified provider of Parent’s choosing, at Provider’s normal and customary rates, by issuing payment directly to such provider within 30 days of submission of a copy of the invoice; such compensatory relief shall expire in three years;
5. ORDERED, that the District shall fund 38 sessions (19 hours) of compensatory counseling outside of school hours, by an independent and qualified provider of Parent’s choosing, at Provider’s normal and customary rates, by issuing payment directly to such provider within 30 days of submission of a copy of the invoice; such compensatory relief shall expire in three years;
6. ORDERED, that the District shall fund 133 hours of compensatory occupational therapy by an independent and qualified provider of Parent’s choosing, at Provider’s normal and customary rates, by issuing payment directly to such provider within 30 days of submission of a copy of the invoice; such compensatory relief shall expire in three years;
7. ORDERED, that the District fund transportation costs to and from all compensatory services, or reimburse Parent for private transportation, as needed for Student to access compensatory educational services.
SO ORDERED.
Dated: October 19, 2023
/s/ Natacha Thompson
NATACHA THOMPSON, Esq.
Impartial Hearing Officer
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.
IHO EVIDENCE
Exhibit Title Date Pages
N/A
DISTRICT EVIDENCE
Exhibit Title Date Pages
N/A
Parent’s Disclosure Exhibits
Exhibit Date Title Pages
A 8.11.23 Due Process Complaint 18 pages
B 11.30.21 Individualized Education Program 16 pages
C 2.8.22 Promotion In Doubt Letter 1 page
D 3.25.22 Social History Update 2 pages
E 4.25.22 Psychoeducational Evaluation Report 6 pages
F 5.6.22 Classroom Observation 2 pages
G 5.9.22 Individualized Education Program 19 pages
H June 2022 2021-2022 Final Report Card 2 pages
I 7.15.23 2022-2023 Final Report Card 2 pages
J 5.4.23 Individualized Education Program 16 pages
K Various 2021-2022 & 2022-2023 Related Service Records 13 pages
L 7.15.23 Neuropsychological Evaluation 13 pages
M 9.12.22 REDACTED Evaluation Report 5 pages
N Various REDACTED Financial Report 3 pages
O 5.31.23 REDACTED Progress Report 5 pages
P 8.18.23 Affidavit of REDACTED 11 pages
Q 10.2.23 Affidavit of REDACTED 28 pages
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] The Hearing Officer Exhibits will be cited to as “IHO: followed by a roman numeral”; “Parent’s Exhibits will be cited to as “P: followed by a letter”; and DOE Exhibits will be cited to as “D: followed by a number”. References to the hearing transcript will be cited to as “Tr: followed by a page number”.