NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 252706
Student’s Name: [REDACTED]
District of Private
School Location: [REDACTED]
Impartial Hearing Officer: Hannah Schwager, Esq.
Date of Filing: August 17, 2023
Hearing Requested by: Parent
Dates of Hearing: October 24, 2023 & October 30, 2023 Record Close Date: November 26, 2023
Date of Decision: November 26, 2023
Names and Titles of Persons Who Appeared October 24, 2023 & October 30, 2023
For the Student:
Representative for Parent
For the Parents:
Neuropsychologist
For the Department of Education:
Consultant Impartial Hearing Representative Department of Education
BACKGROUND
The Parent, through counsel, filed a Due Process Complaint (“DPC”) on August 17, 2023, pursuant to the Individuals with Disabilities Education Act (“IDEA”)[1] and Section 4404(1) of the New York State Education Law. Parent alleges that the New York City Department of Education (“DOE” or “District”) failed to offer the Student a free and appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years.[2] Specifically, Parent claims that the DOE failed to properly consider the Student eligible for special education services and that the DOE violated the Parent’s procedural rights.[3] Parent alleges that they “had no choice but to secure [special education] services on [Parent’s] own from a private agency,”[4] and is seeking the following relief: [5]
• An order finding that the DOE failed to provide the Student with a FAPE for the 2021-2022 and 2022-2023 school years.
• An order finding that the DOE should have provided the Student with seven (7) hours per week of Special Education Teacher Support Services (“SETSS”) for the 2021-2022 and 2022-2023 school years.
• An award of 196 hours per week of compensatory education SETSS services to make up for the DOE’s failure to provide the Student with such services for March 2022-June 2022 of the 2021-2022 school year, at market rate.
• An award of 280 hours per week of compensatory education SETSS services to make up for the DOE’s failure to provide the Student with such services for the entire 2022-2023 school year, at market rate.
• An order finding that the DOE should have provided the student three, 45-minute sessions per week of occupational therapy (“OT”) for the partial 2021-2022 school year and entire 2022-2023 school years, with such services not provided to be authorized as a bank of compensatory educational services, at market rates.
As more fully discussed below, I find that the DOE failed to provide the Student a FAPE for the partial 2021-2022 school year and the 2022-2023 school year. I find that some of the Parent’s request relief is appropriate.
PROCEDURAL HISTORY
I was appointed as the impartial hearing officer (“IHO”) on August 21, 2023. On September 20, 2023, both parties appeared virtually for a pre-hearing conference, after which a Pre-Hearing Conference Summary and Order was provided to the parties.
The due process hearing was held virtually on October 24, 2023 and continued on October 30, 2023. The DOE provided no exhibits and offered no witness testimony.[6] The Parent provided
One of the Parent’s exhibits was an affidavit from the Parent, who appeared for live testimony. The Parent also presented the Neuropsychologist to testify. Finally, the Representative for the Parent was allowed to testify about her efforts to work with DOE on her client’s behalf and to lay a foundation for proposed exhibit H. The DOE did not seek to introduce witness testimony but did cross-examine the Parent’s witnesses. Both parties delivered oral opening and closing statements.
A list of exhibits admitted into evidence is attached. Although only portions of the evidence are referenced in this decision, all the testimony and documents were reviewed in full.
FINDINGS OF FACT
At the hearing, the following was not in dispute: The Student is an [REDACTED]-yearold child who currently does not have a disability classification. The Student and Parent reside in New York City and the Student attended the Private School for the 2021-2022 and 2022-2023 10-month school years.[10] In December 2021, the Parent sent an email to the Committee on Special Education (“CSE”) chairperson, explaining that the Student was “struggling greatly to keep up with [the Student’s age level peers,” and that the Student was struggling in both reading and math.[11] The Parent requested that the Student be evaluated for special education services. [12]
In March 2022, the Student was evaluated by a psychologist.[13] This psychoeducational evaluation included the administration of the Wechsler Intelligence Scale for Children, Fifth Edition, the Woodcock Johnson Tests of Achievement, Fourth Edition, a Sentence Completion Test, and informal observation and student interview.[14] Per the Psychoeducational Report, the Student fell within the average or low-average range on all subtests, except for “Block Design” at which the Student scored Below Average.[15] The Psychoeducational Report concluded that the Student struggled to recreate picture designs using blocks, and that the Student had “low average” skills in solving math word problems and computing math calculations, as well as low skill in
7 See party arguments beginning at Transcript page 28
8 Tr. 29
9 Tr. 38, Testimony of Representative beginning Tr. 163.
On May 11, 2022, the CSE convened for the first time to create an Individualized Educational Services Plan (“IESP”) for the Student. 18 The record indicates that the CSE relied upon the following documentation at this meeting:
• The March 2022 Psychoeducational Report [19]
• Teacher Reports [20]
• Math and Writing Samples [21]
• January 2022 Social History Evaluation [22]
• Private SETSS Teacher Report [23]
Although no record of the outcome of this meeting is in the record, the CSE declined to find the Student eligible for special education services at this time. The Parent testified that she was concerned during this CSE meeting that all of the relevant materials were not properly reviewed or discussed.[24] Due to these concerns, the Parent reached out to the Parent Representative, who scheduled a classroom observation, which occurred on May [18], 2022. [25]
On June 3, 2022, Parent requested a neuropsychological evaluation of the Student be conducted.[26] In June 2022, the CSE scheduled a follow up IESP meeting for June 14, 2022, at which to discuss the classroom observation, as well as the Parent’s request for a neuropsychological evaluation.[27] However, it is unclear whether this meeting was ever conducted. [28]
In November 2022, the Student was evaluated by a Neuropsychologist.[29] The Neuropsychologist’s Report and testimony stated that the Student suffered from a learning disability in the areas of math and writing [30], and the Neuropsychologist found that the Student’s “heightened levels” of anxiety and executive dysfunction made it difficult for the Student to
P. Ex. C-5
P. Ex. C-5 Parent testified that the Neuropsychological Report was provided to the CSE following its completion, and on January 17, 2023, the Parent was contacted by the CSE wanting to convene an IESP meeting.[36] Parent testified that she had overlooked the scheduling email from the CSE, and that she was unaware that the IESP meeting was to occur on that date, and, feeling unprepared, the Parent did not attend the meeting.[37] At that meeting, the Student was once again found ineligible for special education services. [38]
Between January 2023 and April 2023, the IESP meeting was rescheduled and postponed approximately three times (see P. Ex. Y ¶15-19 for testimony relating to the rescheduling). In sum, the record shows that an IESP meeting was held in January 2023, March 2023, and April 2023, after each of which the CSE declined to recommend that the Student receive special education services.[39] The record contains three notices of ineligibility that the DOE sent to the Parent following the CSE meetings in January 2023, April 2023, and May 2023, all of which conclude that the Student is not in need of special education services. [40]
LEGAL FRAMEWORK AND ANALYSIS
Following a review of the record and relevant legal authority, I find that the DOE denied the Student a FAPE for the partial 2021-2022 school year and the 2022-2023 school year by improperly finding the Student ineligible for special education services. The Parent alleges a denial of FAPE for both the 2021-2022 and 2022-2023 school years, based in part on the CSE’s ineligibility determination, but also on alleged procedural deficiencies involving scheduling and notice of the IESP meetings; make-up of the parties present at the IESP meetings; and failure by the DOE to timely evaluate the Student following Parent referral. I do not find that these deficiencies amounted to a denial of FAPE, and I included a brief discussion after the lengthier eligibility analysis below.
P. Ex. Y ¶12, P. Ex. N-5
P. Ex. N-5
P. Ex. N-5
P. Ex. N-
P. Ex. Y ¶12, P. Ex. N-5
I. Eligibility Determination
The IDEA provides that the term "child with a disability" includes a child "with . . . specific learning disabilities.”[41] Federal regulations promulgated under IDEA define "specific learning disability" as "a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in the imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations."[42] A CSE may determine that a student has a specific learning disability if: (1) The child does not achieve adequately for the child's age or to meet State-approved grade-level standards . . . [and] (2)(i) The child does not make sufficient progress to meet age or State approved grade-level standards . . . or (ii) The child exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development.[43] New York regulations clarify further that a learning disability "manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations." The term also includes the condition of dyslexia.[44] New York regulations, however, contain the same materiality qualifier as federal regulations in that the existence of a learning disability turns upon whether the student achieve[s] adequately. [45]
2021-2022 School Year
An analysis of the documents that were provided to the CSE for the May 2022 CSE meeting indicate that the Student needed special education services and should have been classified following that meeting.
As outlined in the foregoing section, New York regulations required the CSE to consider not only that the Student had the imperfect ability to, in this case, write and do math, but also whether the Student’s deficiencies affected the Student’s ability to achieve and progress educationally.
First, the psychoeducational evaluation notes that the Student scored in the average or low average range in all metrics assessed via the Weschsler Intelligence Scale for Children and the Woodcock Johnson Test, except for one: block design.[46] The psychoeducational evaluation notes that this test is described as “the ability to recreate increasingly complex picture designs using blocks.”[47] There was no testimony about what a below average score on this assessment may indicate, nor any evidence or testimony about how the score may indicate eligibility for special
However, the Teacher Report and the Private SETSS Teacher Report clearly show a basis for classification of the Student. The Teacher Report from April 2022 indicated the following regarding the Student’s writing skills: “[The Student] is eager to improve her writing skills. She has lots of ideas of what she wants to write, however, its unintelligible to others.”[48] The Teacher Report explains that the Student has very poor spelling and struggles with formulating her ideas, with sentence structure, and with putting her thoughts into words.[49] The Teacher Report indicates that, despite being in the fourth grade at the time, the teacher considered the Student to possess written language, and spelling/organization skills that were more commensurate with the beginning of the second grade.[50] Similarly, the teacher noted that the Student was at an early second grade level when it came to math calculations and math problem-solving skills.[51] Finally, the Teacher Report notes that the Student has “very poor fine motor skills.” [52]
The Private SETSS provider also submitted a report to be reviewed by the CSE in the spring of 2022.[53] The provider specified the difficulties that the Student has with math. The provider stated that the Student was “learning at a third-grade level,” and notes that “in contrast to her classmates, [the Student] frequently takes a long time to finish assigned assignment. [The Student] learns best in a one-to-one setting, with constant positive feedback, and continuous prompting.”[54] Although the statement did not contain a specific recommendation, the statement from the Private SETSS provider indicates to me that the Student required, and was benefiting from, private, individualized math tutoring and instruction. This should have indicated to the CSE that the Student required formalized special education support services.
I find the record shows that the materials that were presented to the CSE at the May 2022 meeting indicate that the Student had imperfect abilities in both writing and in math, and crucially, that she was not progressing in line with her peers or as expected when compared to grade level skills. Therefore, I find the CSE failed to properly find the Student eligible for services and thus denied the Student a FAPE for the partial 2021-2022 school year. 2022-2023 School Year
Having found that the DOE failed to provide a FAPE to the Student beginning in May 2022, I believe that the DOE could not have provided a FAPE to the Student in the 2022-2023 school year without further evaluating and classifying the Student. Although a neuropsychological evaluation was conducted in late 2022, the CSE once again declined to classify the Student, despite meeting three additional times.
I find that the DOE’s determination in early 2023 that the Student was ineligible for special education was incorrect. Parent presented the neuropsychological evaluation report and the testimony of the neuropsychologist. The neuropsychologist recommended that the Student be classified with a Learning Disability.[55] The neuropsychologist testified credibly about the assessments that he conducted of the Student, and about why the results of these assessments supported his conclusions.
The DOE’s psychoeducational evaluation did not make a recommendation, but noted that the Student “had low average skills in solving word problems and computing math calculations,” and that the Student “had low skills in spelling and computing quick math facts.”[56] The DOE did not present any witness testimony or evidence to rebut the conclusions reached by the neuropsychologist, or to support the DOE’s contention that the Student should not have been eligible despite the neuropsychologist’s recommendation. Moreover, the January 2023 Ineligibility – Present Levels of Performance (P. Ex. P) notice issued by DOE contains information that points to consistently below-grade level performance by the Student in writing and math. For example, it is noted that a child the Student’s age should be able to copy 61-81 letters per minute and that the Student is able to copy 31 letters.[57] That PLOP also contains a verbatim writing sample from the Student, which is riddled with spelling, grammatical and case errors. [58]
The January 2023 PLOP notes that the Student does not “present with significant OT concerns.”[59] The neuropsychologist testified that he found the OT recommendations in that PLOP to be “absurd.” [60]
The DOE did not present any documentary evidence or witnesses to rebut the testimony of the neuropsychologist. On cross-examination, the DOE attempted to elicit testimony from the neuropsychologist characterizing the Student’s low aptitude in math simply as symptom of the Student’s dislike of the subject.[61] However, the neuropsychologist testified consistently and persuasively that the results of his evaluation indicated to him that the Student should be classified as having a learning disability and required learning supports, as well as related services. Conclusion
In conclusion, the record established that the Student requires significant supports beyond general education to help her perform at grade-level. Moreover, the record illustrates that the Student had clear weaknesses in writing and in math, as well as with her fine-motor skills. Based on the foregoing, I find that the Student is a Student with a Learning Disability who requires OT.
II. Alleged Procedural Violations of FAPE
Having found the DOE denied the Student a FAPE for the partial 2021-2022 and 2022-2023 school year based on the failure to find the Student eligible for services, I will only briefly discuss the Parent’s others alleged basis for FAPE denial. In particular, my analysis of whether the Student was denied a FAPE based on the CSE’s failure to evaluate has implications for the compensatory services I will award in this matter.
The IDEA provides that children with disabilities are entitled to a FAPE. 62 A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 63 The provision of FAPE first requires that a Student with disabilities be properly identified and evaluated by the CSE, a process known as “child find.” The purpose of the “child find” provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability, and thereby may be in need of special education and related services, but for whom no determination of eligibility has been made. 64
The IDEA places an affirmative duty on the DOE to identify, locate, and evaluate all children with disabilities residing in New York City "to ensure that they receive needed special education services."[65] The "child find" requirements apply to "children who are suspected of being
62 20 U.S.C. §1400 (d)(1)(A). 63 20 U.S.C. § 1401(9). 64 See Handberry v. Thompson, 446 F.3d 335, 347-48 (2d Cir. 2006); E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 (S.D.N.Y. Nov. 26, 2012); A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 (D. Conn. 2008), aff'd, 370 Fed. App'x 202 (2d Cir. Mar. 23, 2010); see also 20 U.S.C. § 1412(a)(3)(A); 34 CFR 300.111; 8 NYCRR 200.2(a)(1), (7). a child with a disability . . . and in need of special education, even though they are advancing from grade to grade." [66]
An integral part of child find is the referral process for evaluation. Upon written request by a parent, the DOE must initiate an individual evaluation of the Student.[67] Specifically, once a referral is received by the CSE chairperson, the chairperson must immediately provide the parents with prior written notice, including a description of the proposed evaluation or reevaluation and the uses to be made of the information.[68] In addition, the district must, within 10 days of receipt of the referral, request the parent's consent to initiate the evaluation of the student.[69] After parental consent has been obtained by a district, the "initial evaluation shall be completed within 60 days of receipt of consent." [70]
The record shows that these procedural steps were not taken by the CSE in this case. Parent initially reached out to the CSE on December 20, 2021 with concerns about the Student.[71] A Social History evaluation of the Student was conducted on January 10, 2022, 20 days after the Parent’s referral.[72] My review of this social history report found that there was evidence that the Parent did not consent to an evaluation until the date the social history interview was conducted, January 10, 2022.[73] However, the record is otherwise silent as to when this consent was originally sought. As the DOE bears the burden to show that the consent was timely requested, and as the DOE did not present any evidence addressing this issue, I find that the record supports a finding that consent was not sought until the social history report was conducted on January 10, 2022, well over 10 days after the initial referral. Since the Parent granted consent for evaluation on January 10th, the psychoeducational evaluation was timely, as it was conducted on March 1, 2022, within the 60-day mandate for initial evaluation following the receipt of consent.
Where a district fails to adhere to the requisite timelines for evaluating a student and creating an educational program post-referral, relief for such a procedural violation of the IDEA is warranted only if the violation affected the student's right to a FAPE.[74] I find that, although the record shows that the CSE did not seek consent from the Parent for evaluations until 20 days after the initial referral date, I find that this did not affect the Student’s right to a FAPE.
Similarly, I find that the record does not show that the CSE’s conduct regarding convening the meetings impeded the Student’s right to a FAPE, significantly impeded Parent’s opportunity to participate in the decision-making processes or caused a deprivation of educational benefits. Indeed, it appears that at the urging of the Parent representative, the CSE met at least four times between 2022 and 2023 to consider the Student’s eligibility. This included rescheduling and reconvening following meetings where the Parent was unable to attend, and where the Parent objected to the makeup of the CSE. In sum, the Parent was given opportunities to attend and take part in the IESP meetings, and there is no evidence that the Parent’s decision-making process was impeded. Although the CSE may have erred in its finding that the Student was ineligible for special education services, this does not appear to have been a result of the procedure being followed by the CSE throughout the relevant time-period.
III. Dual Enrollment
A FAPE must be offered to every student with a disability residing in the school district who requires special education services or programs, regardless of whether they are public or private school students.[75] The IDEA regulations do not, however, confer an individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (“NPS”).[76] Rather, it is under State law that parents of NPS student with disabilities may nonetheless 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.[77] 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]."[78] This is “known as the dual enrollment[,]” which “requires the provision of special education programs ‘on an equitable basis’ to students who attend nonpublic schools.” [79]
If a dispute arises between a parent and a school district over the provision of equitable services under an IESP, review may be obtained via an impartial due process hearing, as called for by the IDEA.[80] The remedies available for a school district’s failure to provide appropriate equitable services under dual enrollment is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA.[81] The only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[82] and that damage awards are not available under the IDEA.[83] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [84]
Here, there is no dispute that the Student was enrolled in a non-approved Private School for the relevant school years and thereby would be entitled to the provision of equitable services, were the Student to have been classified as a Student with a disability by the CSE.
Remedies
I. Compensatory Relief
Under the IDEA, impartial hearing officers 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.”[85] Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion.[86] Although an award of damages is not available under the IDEA, 87 “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [88]
When there has been a denial of FAPE, a hearing officer may award compensatory education relief through supplemental special education or related services.[89] An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period, and if such deprivation of instruction can be remedied through the provision of additional services. Compensatory education can serve as a “replacement of educational services the child should 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[.]" [90]
SETSS
In this case, the Parent seeks 196 hours of compensatory SETSS services to compensate for the DOE’s failure to provide the Student such services from March 2022-June 2022.[91] I find that compensatory services is appropriate in this matter, but I find that the hours should reflect the denial of FAPE going back to May 2022, when the CSE met and should have fully considered the Student’s materials, and not to March 2022, when the psychoeducational evaluation was conducted. As I discussed in the foregoing, I do not find the psychoeducational evaluation to
87 See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002).
Similarly, the Parent requests a compensatory award of 280 hours of SETSS services to compensate for the denial of FAPE for the entire 2022-2023 school year. This reflects 40 weeks of the school year, multiplied by seven, which equals 280 hours. I find this to be an appropriate compensatory SETSS services award for the 2022-2023 school year.
Occupational Therapy
The Neuropsychologist testified that the Student required two sessions of occupational therapy per week to address her fine motor, graphomotor, and organizational skills.[93] In the DPC, the Parent requests that the compensatory services calculation should include three sessions per week of OT,[94] but as the Neuropsychologist only recommended two sessions, I find no support for three sessions per week in the record. For the six relevant weeks of the 2021-2022 school year, in which the CSE denied the Student with a FAPE, this would amount to 12 compensatory sessions of OT (two sessions per week for six weeks). For the 2022-2023 school year, the Student is entitled to two sessions per week of OT for 40 weeks, totaling 80 sessions of OT as an appropriate compensatory award.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1) The New York City Department of Education failed to provide the Student with a FAPE for the partial 2021-2022 and 2022-2023 school years.
2) The New York City Department of Education shall fund, at a reasonable market rate, a bank of 322 hours of SETSS services, which are to be used at a rate of seven (7) periods per week and are to be provided by a provider of the Parent’s choosing. This bank of hours will expire on November 26, 2024.
3) The New York City Department of Education shall fund, at a reasonable market rate, a bank of [92], 45-minute OT sessions, which are to be used at a rate of two (2) sessions per
Hannah Schwager, 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.
APPENDIX A
DISTRICT EVIDENCE
None
PARENT EVIDENCE
A. DUE PROCESS COMPLAINT 8/17/2023 7 pages
B. SOCIAL HISTORY REPORT 1/10/2022 4 pages
C. PSYCHOEDUCATIONAL EVALUATION 3/1/2022 5 pages
D. MATH PROBES N/A 2 pages
E. WRITING SAMPLES N/A 9 pages
F. CLASSROOM TEACHER REPORT 4/25/2022 6 pages
G. PRIVATE SETSS TEACHER REPORT N/A 1 page
H. EMAIL CORRESPONDENCE 4/12/2022BETWEEN PARENT’S LIASON AND DOE 5/16/2022 12 pages
I. INITIAL REFERRAL 12/20/2021 1 page
K. CLASSROOM OBSERVATION 5/18/2022 3 pages
L. IEP MEETING NOTICE 6/14/2022 3 pages
M. NEUROPSYCHOLOGICAL AA FORM 6/3/2022 7 pages
N. NEUROPSYCHOLOGICAL REPORT and 11/15/2022 11/17/2022 8 pages
O. IEP MEETING NOTICE 1/5/2023 3 pages
P. INELIGIBILITY - PRESENT LEVELS OF PERFORMANCE 1/20/2023 5 pages
Q. IEP MEETING NOTICE 3/28/2023 3 pages
R. INELIGIBILITY LETTER 4/25/2023 2 pages
S. MATH PROBES N/A 5 pages
T. WRITING SAMPLE 22-23 N/A 3 pages
U. PRIVATE SETSS REPORT 22- 23 N/A 1 page
V. TEACHER REPORT 3/26/2023 6 pages
W. INELIGIBILITY - PRESENT LEVELS OF PERFORMANCE 5/2/2023 5 pages
X. EMAIL TO DOE WITH STUDENT DOCUMENTS 03/29/2023 2 pages
Y. PARENT AFFIDAVIT 10/18/2023 5 pages
IHO EXHIBITS
I. Adjournment Email Chain 10/19/2023 4 pages IHO
Footnotes
[1] 20 U.S.C. §1415(f).
[2] Petitioner Exhibit (P. Ex.) A-1
[3] P. Ex. A, generally
[4] P. Ex. A-3
[5] P. Ex. A-4
[6] Transcript (Tr.) 26-27 24 exhibits. DOE objected to Parent’s proposed exhibit G and proposed exhibit H being admitted in the record. 7 Parent’s exhibit G was entered into the record over the objection from DOE. 8 In order to lay a foundation for Parent’s exhibit H, Parent representative was permitted to testify on the continued hearing date. 9 DOE objected to the Parent representative testifying as part of this proceeding. However, as the IHO I have broad discretion in how the hearing is conducted and how the hearing record is completed. I will consider the unique role as both witness and representative when assessing the credibility of the Parent representative’s testimony and exhibits.
[10] P. Ex. Y, generally
[11] P. Ex. I, P. Ex. Y ¶1
[12] P. Ex. I
[13] P. Ex. Y ¶2, P. Ex. C
[14] P. Ex. C-2
[15] P. Ex. C-2, C-5 spelling and computing quick math facts. 16 However, the Psychoeducational Report did not state any conclusions regarding the Student’s eligibility, stating only “[f]inal recommendations will be made at the forthcoming IEP meeting, where all pertinent information will be discussed.” 17
[18] P. Ex. Y ¶3
[19] P. Ex. C
[20] P. Ex. F
[21] P. Exs. D & E
[22] P. Ex. B
[23] P. Ex. G. At the time of this CSE meeting, the Student was receiving four hours per week of SETSS services for remediation in math, at no cost to the Parent.
[24] P. Ex. Y ¶7 & 8
[25] Id. P. Ex. K
[26] P. Ex. Y ¶10
[27] P. Ex. Y ¶ 11
[28] P. Ex. Y ¶11
[29] P. Ex. Y ¶12, P. Ex. N
[30] P. Ex. N-5 participate in classroom activities. 31 However, the Neuropsychologist noted that the Student did not meet the criteria for a diagnoses of anxiety or executive dysfunction. 32 The Neuropsychologist recommended seven periods of SETSS services per week “in order to manage specific goals related to basic writing skills,”33 as well as to help the Student perform independent tasks, as the Student “requires reinforcement and occasional re-teaching, as well as help organizing complex tasks and multi-step tasks.” 34 The Neuropsychologist also found that the Student suffered find motor delays and recommended the Student receive OT. 35
[36] P. Ex. Y¶12
[37] P. Ex. Y ¶14
[38] P. Ex. Y ¶15
[39] P. Ex. Y¶19
[40] P. Exs., P, R & W
[41] See 20 U.S.C. §1401(3)(A)(i).
[42] See 34 C.F.R. § 300.8(c)(10)(i).
[43] See 34 C.F.R. § 300.309(a).
[44] See 8 N.Y. Comp. Codes R. & Regs. § 200.1(zz)(6).
[45] Id. at § 200.4(j)(3). See S.B. v. Goshen Cent. Sch. Dist., 20-CV-09167 (PMH) (S.D.N.Y. Sep. 12, 2022)
[46] P. Ex. C-2
[47] P. Ex. C-2 education services. Similarly, the January 2022 Social History Evaluation does little to show the educational needs of the Student.
[48] P. Ex. F-2
[49] Id.
[50] P. Ex. F-1
[51] Id.
[52] P. Ex. F-5
[53] P. Ex. F (referenced in P. Ex. Y¶4)
[54] P. Ex. G
[55] P. Ex. N-5, Tr.148
[56] P Ex. C.
[57] P. Ex. P-1
[58] Id.
[59] P. Ex. P-3
[60] Tr. 160-161
[61] Tr. 150-151 The record shows that the CSE reviewed and considered the neuropsychologist’s evaluation and recommendation, which was copied into the 2023 PLOP. However, the record is frustratingly silent as to why the CSE did not adopt the neuropsychologist’s recommendations. The record does not give me any cause to refute or question the neuropsychologist’s evaluation, and I find the neuropsychologist’s testimony to be credible. The testimony and the report support the Parent’s claim that the CSE continued to deny the Student a FAPE well into the 2022-2023 school year.
[65] 20 U.S.C. § 1412(a)(3); 34 CFR 300.111(a)(1)(i)
[66] 34 CFR 300.111(c)(1); see 8 NYCRR 200.2(a)(1)
[67] See Educ. Law § 4401-a(1), (3); 8 NYCRR 200.4(a)(1)(i); (a)(2)(ii)-(iv); (b); see also 20 U.S.C. § 1414(a)(1)(B); 34 CFR 300.301(b)).
[68] 8 NYCRR 200.4(a)(6); 200.5(a)(5)
[69] see 8 NYCRR 200.4(a)(2)(iv)(a); see also 34 CFR 300.300(a
[70] 8 NYCRR 200.4(b); see also 8 NYCRR 200.4(b)(7)
[71] P. Ex Y ¶1, P. Ex. I
[72] P. Ex. B-3 Due Process/Consent Section
[73] P. Ex. B
[74] J.D. v. Pawlet Sch. Dist.,224 F.3d 60, 69 (2d Cir. 2000); see A.H. v. New York City Dep't of Educ., 394 Fed. App'x 718, 720 (2d Cir. Aug. 16, 2010).
[75] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[76] See 34 CFR 300.137(a).
[77] Educ. Law § 3602-c(2).
[78] Matter of Bd of Educ. of Bay Shore Union Free School Dist. v. Thomas K., 14 N.Y.3d 289 (2010) (citing Educ. Law § 3602-c(2)(b)(l)).
[79] See, e.g., Application of a Student with a Disability, Appeal No. 22-024.
[80] 20 U.S.C. §§ 1221e-3, 1415(e)-(f); see also Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[81] 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).
[82] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[83] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[84] See East Lyme Bd. of Educ., 790 F.3d at 454.
[85] Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[86] Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).
[88] Doe v. East Lyme, 790 F.3d at 454.
[89] See Newington Bd. of Educ., 546 F.3d 123
[90] Newington, 546 F.3d 123; 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")
[91] P. Ex. A-4 support a finding, on its own, that the Student required special education services. Nor do I find that a failure to timely evaluate/gather consent for the Parent, rose to the level of FAPE denial. Therefore, the Student is entitled to SETSS services from May 11, 2022 through June 27, 2022. 92 By my calculations, this time-period totals approximately six weeks and three days. The Neuropsychologist recommended seven periods of SETSS services per week. Seven periods, multiplied by six weeks equals 42 hours of compensatory SETSS services. I find this to be an appropriate compensatory SETSS services award for the 2021-2022 school year.
[92] I take judicial notice that June 27, 2022 was the last day of the 2021-2022 school year per the NYC Department of Education School Year Calendar, available to the public at: schools.nyc.gov/docs/default-source/default-document- library/doe-calendar-sy-21-22.
[93] P. Ex. N-5
[94] P. Ex. A-4 week and are to be provided by a provider of the Parent’s choosing. This bank of hours shall expire on November 26, 2024. Dated: November 26, 2023