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FINDINGS OF FACT AND DECISION
| Case Number: | 253219 |
|---|---|
| Student’s Name: | [REDACTED] (Student) |
| Date of Birth: | [REDACTED] |
| School District: | New York City Department of Education (DOE) |
| Hearing Requested by: | [REDACTED] (Parent) |
| Date Complaint Filed: | August 29, 2023 |
| Date of Hearing: | October 11, 2023 |
| Record Closed Date: | November 6, 2023 |
| Date of Decision: | November 6, 2023 |
| Impartial Hearing Officer: | Amy Randhawa, Esq. |
| Time Sensitive: | YES |
INTRODUCTION
This case concerns the Student whose eligibility for special education supports and services is not in dispute. The Parent, through counsel, filed a Due Process Complaint (DPC) alleging that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2023-2024 school year. IHO Ex. 1.[1] The DPC alleges that the DOE procedurally and substantively denied the Student a FAPE by: failing to provide a program uniquely tailored to meet the Student’s needs; failing to implement the Student’s IEP; failing to address the Student’s behavioral needs; and, denying the Parent the right to meaningfully participate in the development of the Student’s educational program. Id. at 3-4.[2]
By way of relief, the Parent requests that the DOE prospectively fund the cost of the Student’s tuition to a private program of the Parent’s choosing (the Private School) for the remainder of the 2023-2023 school year to remedy the denial of a FAPE. Id. at 4; Tr. 32-33.
I find that: (1) the DOE denied the Student a FAPE for the 2023-2024 school year; (2) the DOE did not carry its burden with respect to the relief; and, (3) the Parent’s requested relief is appropriate.
JURISDICTION
This due process hearing (DPH) was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing federal regulations, 34 C.F.R. § 300 et seq.; Section 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq.
PROCEDURAL HISTORY
The DPC was filed on August 29, 2023, and the parties appeared for a pre-hearing conference on October 2, 2023 and a DPH on October 11, 2023. At the hearing, the Parent was represented by the Parent Attorney and the DOE was represented by the DOE Representative. Tr. 18.
At the hearing, the DOE entered exhibits 1, 2, 3, 11 through 23 into the record without objection from the Parent.[3] Tr. 24-26. The DOE issued an opening and closing statement. Tr. 28-29, 52-53. The DOE did not present any witnesses and asserted that it was relying on the evidence to establish a FAPE for the Student. Tr. 20, 28.
Without objection from the DOE, the Parent entered exhibits A through M into the record, including testimony by affidavit from the Private School’s Executive Director (P Ex. C) and the Parent (P Ex. D).[4] The DOE Representative asked the Executive Director questions on cross-examination, but had no questions for the Parent. Tr. 36-43, 48. I cross-examined both Parent affiants. Tr. 43-44, 48-50. The Parent issued an opening and closing statement on the record. Tr. 30-33, 53-54.
FINDINGS OF FACT
I make the following findings of fact.
The Student is currently a [REDACTED]-year-old enrolled at a DOE school. D Ex. 2:1, 5; Tr. 48-50. The Student is classified by the DOE as a student with Autism, and is diagnosed with Autism Spectrum Disorder, Language Impairment, and Attention Deficit Hyperactivity Disorder (ADHD). D Ex. 2:1, 8.
The Student is described as friendly and social, has a positive demeanor, loves to play with peers, likes school and his teachers, and enjoys engaging in conversations about topics that interest him, including games and trains. Id. at 11-13; P Ex. D ¶9. Academically, the Student presents with significant weaknesses in his cognitive proficiency skills, which include his processing speed and working memory; has below grade level decoding skills; struggles with letter formation and sizing; cannot answer high order thinking questions; does not know the rules of sentence structure; is easily distracted and requires substantial redirection, prompting, and support including individual attention in the classroom. D Ex. 2:6-8.
The DOE’s Committee on Special Education (CSE) convened on August 14, 2023 and created an IEP for the Student effective September 1, 2023. D Ex. 2: 1, 51. The Parent participated in the meeting. Id. at 51. The CSE recommended an extended school year 12-month program at a New York State Education Department (NYSED) approved non-residential Non-Public School (NPS) in a special class within an 8:1+1 classroom for ELA (10 periods per week), Math (5 periods per week), Social Studies (3 periods per week), and Sciences (2 periods per week) along with related occupational, physical, speech and language therapy, counseling, behavior intervention supports including a 1:1 paraprofessional, assistive technology, and specialized transportation. Id. at 17, 40-42, 47, 49.
The IEP notes that a non-residential NPS was recommended and a special class in a community or specialized school were rejected because the Student reportedly made little progress while in a D75 8:1+1 and needs more intensive specialized instruction to address his educational needs. Id. at 50. Specifically, the Student requires a very small, highly structured, and self-contained classroom environment within a special education school that can accommodate his various needs while fostering his strengths, including an educational setting with a low student to teacher ratio and other students who are of at least average cognitive ability. Id. Further, the IEP notes that the Student’s program should be able to appropriately support his difficulties with attention, language, social pragmatics, and self-regulation. Id.
To date, the DOE has failed to find a NPS placement for the Student, as mandated on his IEP. IHO Ex. 1:3; Tr. 49-50. The Parent has been waiting months for a NPS placement following a prior IHO decision which ordered the DOE to locate a NPS for the Student. IHO Ex. 1:3, P Ex. D ¶12.
The Parent and Executive Director credibly testified that the Parent and Student met with the school, the school reviewed the Student’s files and determined that the school would be an appropriate fit for the Student, and that the school currently has a seat available for the Student for the remainder of the 2023-2024 school year. P Ex. C ¶¶18-21, P Ex. D ¶¶11, 13, Tr. 43-44.
The Private School is a [REDACTED] private special education school for students aged [REDACTED] on the Autism Spectrum, or with attention deficit or other learning and developmental challenges. P Ex. C ¶¶7-8. There are currently [REDACTED] students enrolled at the school and class sizes are [REDACTED]. Tr. 39. The school develops an individualized full-day educational program for each student using a multi-strategic teaching approach, data analysis as well as evidence-based and cutting-edge interventions and techniques focusing on developing a student’s social-emotional and communication skills. P Ex. C ¶9. The school uses a variety of teaching methodologies to meet students learning and/or social emotional needs, including [REDACTED] programs. Id. at 10-13. In addition, the school offers classes such as life skills, social skills, relationship building, and language enhancement; has a sensory gym with various sensory equipment, and provides related services including counseling, occupational therapy, and speech and language therapy by providers licensed in their respective fields. Id. at 14-16.
The Executive Director credibly testified that the school determined that the Student would be an appropriate fit at the school after reviewing the Student’s educational records, observing the Student in two classrooms to assess his sensory and academic needs and to observe his peer and staff interactions, and interviewing the Student. Id. at 18-19.
If enrolled at the Private School, the Student would be placed in a class with five other students, a certified special education teacher, and two educational instructors with a minimum of three years of experience in autism and training in crisis prevention intervention, de-escalation techniques, and organic ABA. Tr. 39-41. The Student’s daily curriculum would include math, ELA, social studies science, as well as a class focusing on social skills, interaction and communication, and self-regulation. Tr. 41-42. Further, the Student’s IEP mandates for related services including counseling, speech, and occupational therapy would be provided at the school. Tr. 42-43. The school does not provide physical therapy. Tr. 43. The Student’s tuition for the remainder of the 2023-2023 school year, prorated for a September 2023 start, would be [REDACTED]. P Ex. C ¶20.
CONCLUSIONS OF LAW AND ANALYSIS
Burden
In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.
Provision of a FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). 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. 34 C.F.R. § 300.13. 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 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, 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.” Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 389 (2017).
A district's assignment of a student to a particular public school site must be made in conformance with the CSE's educational placement recommendation, and the district is not permitted to deviate from the provisions set forth in the IEP (M.O. v. New York City Dep't of Educ., 793 F.3d 236, 244 [2d Cir. 2015]; R.E., 694 F.3d at 191-92; T.Y., 584 F.3d at 419-20; see C.F. v. New York City Dep't of Educ., 746 F.3d 68, 79 [2d Cir. 2014]). In reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial or "material" (A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. Mar. 23, 2010]; M.L. v. New York City Dep't of Educ., 2015 WL 1439698, at *11-*12 [E.D.N.Y. Mar. 27, 2015; see Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007] [holding that a material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled student and the services required by the student's IEP].
I find that the DOE failed to offer the Student a FAPE for the 2023-2024 school year. The DOE should be “able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Id. at 404.
Here, the DOE relied on the documents in the record to establish that it provided the Student a FAPE. However, the DOE pointed to no specific information in any document to support its position. To the contrary, the Parent established through credible evidence, which the DOE did not refute, that the Student is mandated a NPS placement pursuant to his IEP and is not currently placed at a NPS. The DOE is not permitted to deviate from the NPS placement recommendation set forth in the Student’s IEP, which is clearly a substantial and material failure.
As such, I find that the DOE failed to establish by a preponderance of the evidence that it offered the Student a FAPE for the 2023-2024 school year. The DOE did not present any credible evidence that it has implemented the Student’s IEP program recommendations.
Relief
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 454 (2d Cir. 2015).
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524.
There are generally two approaches to fashioning a compensatory education award, the “quantitative” approach and the “qualitative” approach. M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996]; See, e.g., Reid, 401 F.3d at 518, 524. The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon individual assessments and is reasonably calculated to provide the educational benefits that “likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the sound discretion of the court to fashion a relief that is appropriate in light of the purpose of the Act, without articulating a specific formula or approach. Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008]. When calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current needs,” but the ultimate award “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.” Doe. v. East Lyme, 790 F.3d at 457.
Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021]. The IHO may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation. M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017].
Here, I find that the DOE did not carry its burden to establish the appropriate relief needed to remediate the DOE’s failure to provide the Student a FAPE. The DOE did not call any of its own witnesses, propose any compensatory relief, or otherwise credibly develop the record to establish that the Parent’s request is inappropriate.
Although the DOE argued that the Parent’s requested relief is inappropriate because the Private School does not provide physical therapy which is mandated by the Student’s IEP (individual once a week for thirty minutes, and in group of three once a week for thirty minutes), I do not credit the DOE’s argument. Tr. 52-53, D Ex. 2:41. The Private School’s failure to provide physical therapy, alone, does not render the Parent’s requested relief as inappropriate. The Student’s August 2023 IEP notes that school-based physical therapy is recommended to continue in order to improve dynamic standing balance/coordination/motor planning skills, but also underscores the Student’s progress in this area, including his ability to participate in instructional exercises class such as dynamic balance/coordination training and various gross motor exercises; his speed of stair negotiation compared to the prior school year; and, his interest in riding a swing and tricycle. D Ex. 2:14. Further, as credibly testified by the Executive Director, the Student would have access to a sensory gym with various sensory equipment at the Private School, including tunnels, swings, scooters, balance beams, crash mats, and elite interactor sensory station. P Ex. C ¶16.
I find that the Parent met his obligation to offer evidence in the record of a specific remedy for the denial of FAPE for the 2023-2024 school year. Further, the Parent’s granted relief is reasonably calculated to provide the Student with the program that the Student would likely have accrued if the DOE had met its FAPE obligations, and is supported by credible information included in the record regarding the Student’s needs. The Private School is an appropriate fit for the Student. It serves students with similar diagnoses and educational needs and can address the Student’s sensory, language, and executive functioning deficits through small classrooms, individualized instruction, and a focus on language and social/emotional processing and sensory integration.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
- Upon receipt of invoice(s), the DOE shall directly fund the Private School’s pro-rated cost for the Student’s 12-month 2023-2024 tuition and any other related costs with attendance in an amount not to exceed [REDACTED].
SO ORDERED.
DATED: November 6, 2023
s/ Amy Randhawa
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 – REDACTION IDENTIFICATION PAGE
| Term Used In FOFD | [REDACTED] Information |
|---|---|
| Student | [REDACTED] |
| Parent | [REDACTED] |
| Parent Attorney | [REDACTED] |
| DOE Representative | [REDACTED] |
| Private School | [REDACTED] |
| Executive Director, Private School | [REDACTED] |
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
DOE EXHIBITS:
| Number | Document | Date | Number of Pages |
|---|---|---|---|
| 1 | Speech-Language Referral | 9/19/23 | 1 |
| 2 | Individualized Education Program (IEP) | 8/14/23 | 51 |
| 3 | Social History Assessment Report | 8/3/23 | 3 |
| 4 | WITHDRAWN | ||
| 5 | WITHDRAWN | ||
| 6 | WITHDRAWN | ||
| 7 | WITHDRAWN | ||
| 8 | WITHDRAWN | ||
| 9 | WITHDRAWN | ||
| 10 | WITHDRAWN | ||
| 11 | Prior Written Notice | 11/14/22 | 8 |
| 12 | Occupational and Physical Therapy Clinical Guide | 11/7/22 | 1 |
| 13 | IEP Conference Summary | 11/7/22 | 3 |
| 14 | Clinical Guide | 11/7/22 | 2 |
| 15 | Classroom Observation Report | 11/4/22 | 1 |
| 16 | Social History Update | 11/4/22 | 2 |
| 17 | Teacher Report | 10/14/22 | 5 |
| 18 | Psychoeducational Evaluation Report | 10/6/22 | 12 |
| 19 | Request for Re-Evaluation | 9/19/22 | 1 |
| 20 | Speech-Language Referral | 9/19/22 | 1 |
| 21 | Prior Written Notice | 9/19/22 | 3 |
| 22 | Psychosocial Evaluation Report | 7/6/22 | 19 |
| 23 | [REDACTED] Evaluation | April 2022 | 7 |
PARENT EXHIBITS:
| Exhibit | Name | Date | Pages |
|---|---|---|---|
| A | Parent’s Impartial Hearing Request | 06/30/23 | 5 |
| B | Private School Program Information | UNDATED | 5 |
| C | Affidavit of Executive Director | UNDATED | 4 |
| D | Affidavit of Parent | UNDATED | 2 |
| E | Individualized Education Program | 12/07/21 | 23 |
| F | Individualized Education Program | 10/10/22 | 35 |
| G | Independent Neuropsychological Evaluation | 05/30/23 | 20 |
| H | Independent Physical Therapy Evaluation | 06/12/23 | 12 |
| I | Independent Occupational Therapy Evaluation | 06/13/23 | 20 |
| J | Independent ABA Skills Assessment | 05/01/23 | 17 |
| K | Independent FBA/BIP | 05/01/23 | 19 |
| L | Independent Speech Language Evaluation | 07/09/23 | 17 |
| M | Independent Assistive Technology Evaluation | 07/09/23 | 14 |
IHO EXHIBITS
| Exhibit | Date | Description | No. of Pages |
|---|---|---|---|
| I | August 29, 2023 | DPC | 5 |
| II | October 4-November 6, 2023 | Emails between IHO and Parties | 4 |
Footnotes
[1] Exhibits are referred to as follows: “D” for DOE exhibits, “P” for Parent exhibits, and “IHO” for Impartial Hearing Officer exhibits, followed by the exhibit number, and if applicable, page number(s) and paragraph(s).
[2] The Parent submitted a document identified as the DPC. See Parent Exhibit A. However, the Parent confirmed an error was made. IHO Ex. II. A copy of the DPC filed in this matter is submitted into the record as IHO Ex. 1.
[3] The DOE withdrew exhibits 4 through 10 because they are duplicative of Parent exhibits entered into the record.
[4] The Executive Director and Parent affirmed their affidavits at the hearing. Tr. 34-36, 47-48.