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FINDINGS OF FACT AND DECISION
Case Number: 165851
Student’s Name:
Date of Birth:
District: I Hearing Requested By: Parent
Dates of Hearing: July 5, 2017
September 20, 2017
October 20, 2017
March 15, 2018
April 27, 2018
Actual Record Closed Date: May 10, 2018
Hearing Officer: Judith Schneider, Esq.
APPEARANCES July 5, 2017 September 20, 2017 October 20, 2017
For Esq., Attorney (via telephone) — Parents
For District Representative (via telephone) — District
For Esq., Attorney (via telephone) [1] — Parents
For District Representative — District
For Esq., Attorney (via telephone) Parent (via telephone) — Parents
Interpreter for Parent provided by parent counsel (via telephone)
For District
District Representative
March 15, 2018
For Parent
Esq., Attorney (via telephone)
Parent
For District
District Representative
Interpreter:
April 27, 2018
For Parent
Esq., Attorney (via telephone)
(via telephone)
For District
District Representative
On July 5, 2017, September 20, 2017, October 20, 2017, March 15, 2018, and April 27, 2018, I conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of XXX (“the student”).
Procedural History
The proceeding was initiated at the request of the parent by correspondence dated March 29, 2017. (Ex. I) I was appointed Impartial Hearing Officer on March 30, 2017. I was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on May 11, 2017, I was informed, among other things, that a neuropsychological evaluation had been scheduled and that a CSE would convene to develop a new IEP upon receiving the results; a hearing was scheduled for July 5, 2017. (Ex. I)
At the July 5, 2017 hearing, I was informed that although the evaluation had been conducted the report of the evaluator had not been completed. (T. 3) A hearing was scheduled for August 16, 2017. (T. 9) The August 16 hearing was adjourned because the CSE not yet developed a new IEP. (T. 16)
At the September 20, 2017 hearing I was informed, among other things, that the CSE’s placement recommendation had not been implemented and the parent intended to file an amended hearing request. (T.14, 18) A hearing was scheduled for October 20, 2017 and the parent was advised that that hearing would be canceled if amendment was granted. (T. 23)
At a hearing on October 20, 2018, I was informed that the parent had that morning submitted an amended hearing request requesting, among other things, a Nickerson letter but it had not yet been processed and transmitted to me and to the district. (T. 30) Parent’s counsel also stated that she had that morning been informed that the student may have been placed in the recommended smaller class but was not sure that that was the case. (T. 30-33) The parent stated that she intended to withdraw the above referenced amended hearing request and refile. (T. 36) A hearing was scheduled for December 7, 2017. (T. 39) The above referenced amended hearing request was thereafter withdrawn.
An amended hearing request was filed by correspondence dated November 30, 2017. (Ex. A) A prehearing conference was held on January 17, 2018 and a hearing was scheduled for March 15, 2018. (T. 47) Evidence and testimony were submitted on March 15, 2018 but due to a delayed hearing start as a consequence of a shortage of rooms the parent was unable to present the testimony of one of her witnesses. (T. 55) The evidentiary phase concluded on April 27, 2018, the next mutually available hearing date.
(T. 56)
The parties moved to extend the compliance date on various occasions in light of the need for a neurological evaluation and the reconvening of the CSE, anticipated testimony, the scheduling of witnesses and submission of evidence and closing arguments. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 9, 15, 23-24, 55-56, 103, 128, Ex. I)
The current compliance date is June 22, 2018. The record closed on May 10, 2018, upon my receipt of the final transcript.
Positions of the Parties
The parent alleged and the district conceded that it failed to provide a FAPE in the 2015-2016 and 2016-2017 school years. (T. 104, 125-126) The district does not dispute the provision of compensatory services of 1:1 academic tutoring but asserts that 360 hours (1 hour per day for each school day in two 10 month school years) is appropriate and objects to the award of an “enhanced rate” and claims that the services should be provided at the DOE authorized rate through RSAs. (T. 59-60, 104) The parent asserts that 720 hours (2 hours per day for each school day in the period FAPE was not provided)
is appropriate and requests that a rate of up to $125 per hour be ordered. (T. 61, Ex. J) 2 The parties have agreed that that is the sole remaining issue in dispute. (T. 103-104)
Cases Presented
The DOE presented no evidence, documentary or testimonial.
The parent submitted documentary evidence for admission into evidence and presented the testimony of two witnesses, the student’s mother (“the parent”) and director of
• Findings of Fact and Conclusions of Law
A) Legal Authority
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.
In fashioning an appropriate compensatory education remedy, “the inquiry must be fact-specific, and … 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.” Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (emphasis added); see also Newington Bd. of Educ., 546 F.3d at 123; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) ("[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
With regard to compensatory education services when there is a denial of FAPE, the district has the burden of proof and persuasion. Appeal No. 11-091 n. 10. It is not sufficient for the district to simply criticize the remedy sought by the parent but rather it
22 The parent has withdrawn all objections to the 2017-2018 placement asserted in the amended hearing request as well as claims that some 2017-2018 mandated related services were not provided. (T. 49, 103, Ex. A)
must provide credible evidence to support its own view of what is warranted. Appeal No. 11-091. See also Appeal No. 14-014.
However, the parent is not therefore entitled to all claimed when a denial of FAPE is conceded. As discussed above, relief must be commensurate and equitable. Further, with regard to the inquiry that must be made, I note that it is well established that in developing an IEP a district need not provide the best possible program- i.e. maximize potential. Rowley, 458 U.S. at 197 n.21, 199; see Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. I conclude that similarly there is no entitlement to that with regard to relief when a district has failed to provide a FAPE. I therefore consider what is appropriate in view of the DOE’s failure here.
In this matter the district does not dispute the student’s entitlement to some compensatory academic tutoring but objects only to the number of hours and the requested rate.
B) Factual Findings
The student is currently in
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grade and years old. (T. 68) He received special education services from kindergarten and was thereafter placed in increasingly more restrictive environments and eventually in special classes with no more than 12 students where he remained through the 5th grade. (T. 70, Exs. B, F-2) The evidence shows that for 5th grade he was in a 12:1:1 class. (Ex. B)
At the CSE meeting to discuss the student’s 6th grade middle school program, a 12:1 program was recommended but in September 2015 the parent was requested to and did consent to change to an ICT program for math, ELA, science and social studies because a small class was not available in the school (T. 70-81, Exs. B, D) At that time the student was reported to have instructional levels of 2nd grade for reading and 3rd grade for math. (Ex. B) The parent did not observe progress in the 2015-2016 SY. (T. 83)
An IEP developed in May 2016 for the 2016-2017 SY (7th grade) recommended the same program. (Ex. E) The parent believed the student was not progressing in that program, sought additional assistance for the student from the school but was rejected and then sought legal assistance. (T. 87-88)
A neuropsychological evaluation was conducted in June 2017 at the end of 7th grade and after the filing of the impartial hearing request. (Ex. F) It reported that the student’s FSIQ was in the Low Average range with a relatively uneven cognitive profile and with delays in reading, math, and writing with scores ranging from below 1st grade to mid 4th grade). (Ex. F) He was diagnosed with: Language Disorder, Mixed Receptive Expressive Type; Specific Learning Disorder in the area of Reading “i.e. dyslexia.” (Ex.
F) The evaluator recommended a 12:1:1 class with SETSS or a specialized private school, counseling, speech language therapy and, among other things, 1:1 tutoring with reading remediation using Orton-Gillingham (“O-G”) or similar empirically supported instruction to be provided multiple times per week outside of regular school hours.
Thereafter, the CSE developed an IEP for the 8th grade (Exs. F, G) which continued to classify the student as a student with a learning disability and recommended a 12:1 special class in a community school with SETSS services 5 periods per week (3 in math, 2 in ELA), counseling (group) and speech language therapy (group of 4). (Ex. G )
The 3rd grade instructional and functional levels for reading and math the CSE specified in that 8th grade IEP are the same levels it stated for the May 2016 IEP 7th grade. (Exs. E, G)
The student is unable to navigate the subway system independently and would be available for all tutoring provided to him if it was delivered in his home. (T. 93-94) The parent is not available to take him to tutoring. (T. 93)
The foregoing has not been contested by the CSE
C) Conclusions
The sole issue at this time is the number of tutoring hours that must be provided by the DOE and the rate of compensation for those hours.
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The affidavit of Director of was submitted in lieu of direct testimony and appeared for cross examination. (T. 57-58, Ex. J)
tested the student on April 6, 2017 with standardized nationally normed instruments and concluded that the student was at low 3rd grade for decoding, at 3rd grade levels for both reading comprehension and written language skills, low second grade for spelling and low 4th grade for reading and math. (T. 114-115, 118, Ex. J) She reviewed the neuropsychological evaluation conducted subsequently and stated that the scores are consistent as was the information specified in the most recent CSE IEP. (T. 116-118, Exs. F, G, H)
recommends a total of 700 hours of 1:1 tutoring using multi-sensory techniques for which the charge would be $125 an hour for each hour of service delivered. (T. 119, Ex. J) The 700 hours recommendation is based upon the information obtained from the April 2017 testing and has no knowledge with regard to the student’s current levels or degree of progress, if any, other than information provided by parent’s counsel that the student is still “struggling significantly and is still well below grade level.” (T. 109, 110) She stated that the determination as to the hours required is based upon her experience working with similar students. (T. 109, 120-121) She
-- anticipates that the student could achieve close to grade level. (T. 121, 122) Certified special education teachers could be provided if required. (T. 121) recommended that the tutoring be provided over a period of two years. (T. 116) The services could be provided in the student’s home. (T. 122)
The DOE asserts that the student should receive one hour of 1:1 instruction for each of the two school years the student was denied a FAPE, a total of 360 hours. However, it provides no educational or other basis for that proposal. Although it asserts that the student is now in an appropriate program and has progressed, no evidence as to the degree of progress, if any, in that program has been presented. It is noteworthy that the parent testified that she had received contradictory information from the teacher. (T. 91-92) Further even if progress has been made there is no basis for a conclusion that that progress has been at the level required to prevent further falling behind, much less result a reduction in the gap.
The evidence in this matter shows that the student is significantly delayed and that he requires specialized reading instruction of a certain type and consistency to make reasonable progress. The neuropsychologist recommended, among other things, O-G or similar methodology from providers certified to deliver that. (Ex. F) The district has not disputed that evidence. Although the student is currently receiving ELA SETSS no evidence as to the methodology utilized has been presented.
I give little weight to undetailed reliance of her experience with “similar” students in determining the number of hours this student requires. However, given the student’s diagnosis of dyslexia and his low reading levels, particularly in decoding, which were ignored by the CSE at least for the years in question, I conclude that he is entitled to two hours for each day of the denial of FAPE, a total of 720 hours. I note with regard to this that the student is acknowledged by the CSE to be willing and hard working (Ex. G) and conclude that the provision of services in his home will facilitate delivery of the intensive tutoring that the neuropsychologist recommended to accompany the school program of small special education classes and SETSS now being provided. (Ex. F)
The DOE urges that the services should be provided by a SETSS provider at the authorized rate. I find no basis in the evidence presented for a conclusion that a provider with the requisite reading instruction training and a willingness to go to the student’s home in The Bronx routinely if required can be located if payment is limited to the authorized rate. Accordingly, payment of up to $125 an hour will be provided.
With regard to the equities in this matter I find no basis for any reduction in the hours provided on the record here. While the DOE notes that it offered 360 hours in settlement almost a year ago and the student could have been receiving services during this period, there is no evidence indicating that the student has fallen behind because of the delay in the delivery of compensatory services and, further, the parent’s rejection was based upon her conclusion as to the student’s need with which I concur.
ORDER
1) The DOE shall issue authorizations for 720 hours of 1:1 tutoring at a rate not to exceed $125 per hour.
2) The reading tutoring must be provided by a person certified on Orton- Gillingham, Wilson or Lindamood Bell methodology.
3) Other academic tutoring must be provided by a teacher certified in special education.
4) The CSE shall be provided with progress reports from the tutors every 4 months unless it waives this requirement in writing.
5) The services shall be delivered at the option of the parent but must be utilized by no more than 2 years from the date of this order.
6) The DOE may require evidence of appropriate provider credentials before payment is made. Dated: May 14, 2018
Judith Schneider, Esq. gc
JUDITH SCHNEIDER, 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 parties' 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 proceedings before a 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 available at http://www.sro.nysed.gov/part279home.html.
EXHIBITS
None
Footnotes
[1] parent, and unofficial interpreter for the parent provided by parent counsel were also present (via telephone) but not noted on the transcript. (T. 13-14