New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 166415

Student’s Name:

Date of Birth:

District:

Hearing Requested By: Parent

Dates of Hearing: August 9, 2017

October 19, 2017

November 28, 2017

April 30, 2018

Actual Record Closed Date: May 11, 2018

Hearing Officer: Judith Schneider, Esq.

APPEARANCES August 9, 2017 October 19, 2017 November 28, 2017 April 30, 2018

For Esq., Attorney (via telephone) — Parents

For District Representative (via telephone) — District

For Esq., Attorney (via telephone) — Parents

For District Representative (via telephone) — District

For Esq., Attorney (via telephone) — Parents

For District Representative (via telephone) — District

For Esq., Attorney — Parents

Ed.D, Founder and Director of (via telephone) — Parents

For District Representative (via telephone) — District

Interpreter:

On August 9, 2017, October 19, 2017, November 28, 2017 and April 30, 2018, I conducted an Impartial Hearing at the New York City Department of Education (“DOE”) 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 June 8, 2017. (Ex. B) I was appointed Impartial Hearing Officer on June 8, 2017 and was available to conduct a hearing within 14 days of appointment. At a telephone conference with the parties conducted on July 17, 2017, I was informed that evaluations and a CSE reconvene were anticipated and the parties were hopeful that at least some of the issues would be resolved; the initial hearing was scheduled for August 9, 2017, the first mutually available date for the parties and the hearing officer. (T. 3, Ex. I ) That hearing was held and additional non evidentiary hearings were conducted thereafter on October19, 2017 and November 28, 2017. A hearing scheduled for January 28, 2018, to enable another reconvene of the CSE, was canceled after the filing of an amended hearing request on January 19, 2018. (T. 23, 25, Ex. A) At a telephone conference on March 6, 2018 after the conclusion of the resolution period following the amended complaint an April 30, 2018 hearing was scheduled. (Ex. I)

On April 12, 2018, the parent filed another hearing request relating to a March 26, 2018 IEP (Case No. 173108) and in an order dated May 1, 2018, I denied consolidation with the instant matter. (Ex. III)

The parties moved to extend the compliance date on various occasions in light of settlement negotiations, further evaluations, 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. 2, 10, 15, 18-19, 22, 26, 67, Ex. I)

The current compliance date is June 8, 2018. The record closed on May 11, 2018, upon my receipt of the final transcript.

Positions of the Parties

The parent asserts that the district failed to provide a FAPE for the 2015-2016 and 2016-2017 school years and the 2017-2018 period through March 26, 2018. (Exs. A, B IV-1) The district concedes that it failed to provide a FAPE for the period at issue and does not dispute the student’s entitlement to compensatory academic services. (T. 62) Various parent claims for relief have been resolved and the parties agree that the sole remaining issues are the number of compensatory tutoring hours the student should receive and the rate of pay for those services, i.e. whether it should be the DOE “authorized rate.” (T. 34, 63)

The district asserts that the student should receive 450 hours based upon a calculation of one hour for each school day (10 month program) during the “2 ½ year” period that a FAPE was denied. (T. 63-64) Further, the DOE seeks an opportunity to identify a provider who will deliver the services at the DOE authorized rate but concedes that an enhanced rate would be warranted if it was unsuccessful. (T. 63)

The parent seeks 500 hours based upon the opinion of that the student be permitted at least 3 years to utilize the hours provided. (T. 65) The parent asserts the student’s need for continuation of specialized methodology and scheduling flexibility and the absence of any evidence that the DOE could identify a provider warrant tutoring services at an enhanced rate. (T. 66)

Cases Presented

The DOE presented no evidence, testimonial or documentary.

The parent presented documents which were admitted into evidence and the testimony of one witness, director of Case No. 166415

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 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 now in the grade. (Ex. M) She has been diagnosed with Reading Disorder and Disorder of Written Expression. Her FSIQ is 98 (Average range) and although she has demonstrated strengths in non-verbal perceptual reasoning, working memory and processing speed, has difficulty with language processing and due to dyslexia struggles to acquire necessary skills in reading and writing. (Ex. L) Her academic skills range from Extremely Low to Average with basic foundation reading skills significantly lower than reading comprehension and fluency as well as math. (Ex.

M) During middle school, and after a prior denial of a FAPE, for a period of at least 2 years the student received afterschool and summer tutoring using Orton-Gillingham (“OG”) methodology and made significant gains (T. 16. Ex. L) Additional tutoring with tutors who have similar experience and training as the student’s previous tutors was recommended in a recent intensive psychological evaluation. (Ex. M) On April 19, 2018, for the purpose of determining need for remedial tutoring, director of

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assessed the student with certain standardized nationally normed instruments. (T. 44-45, Ex. Q) The student tested at an upper 3rd grade level for both spelling and decoding, a 6th grade level for reading comprehension, a 4th grade level for written language and an upper 4th grade level for mathematics. (T. 45, Ex. Q) Upon review of various evaluative material concluded that the student required specific multi-sensory instruction using the O-G approach for reading and spelling. (T. 45-46, 48-50, Ex. Q) stated that approximately 6-7 hours per week over a two-three year period, or approximately 500 hours, of 1:1 instruction would enable significant gains based upon her experience with similar students. (T. 53, Ex. Q) The DOE is currently funding approximately 55 students at the rate of $125 per hour. (T. 58)

C) Conclusions

With regard to the number of hours to be provided I conclude the student is entitled to one hour of 1:1 compensatory tutoring for each school day (10 month program) in the period of denial of a FAPE (2015-2016 SY, 2016-2017 SY and 20172018 SY for the period ending March 26, 2018. I note that this is consistent with the DOE’s method of calculation with regard to its offer of 450 hours.

With regard to the rate to be provided, the evidence shows that the student requires O-G instruction from persons appropriately trained in that methodology. (Exs. L, M) Further in view of this student’s deficits consistent after school and summer services are required including the ability top deliver the services in the home is necessary. No evidence has been presented that supports a conclusion that the DOE can identify providers at the authorized rate who will be able to meet these requirements. Accordingly, the DOE will be ordered to provide authorizations for 1:1 tutoring at the rate of up to $125 per hour.

In view of the testimony of and the evaluative material submitted, I conclude that the provision of up to 2 ½ year for the utilization of the services is appropriate. That will enable the intensity of services required and allow for unanticipated events which may interfere with their delivery. The parent, however, is urged to consider the need for intensive continuous services.

In view of the DOE concessions concerning denial of FAPE and entitlement to substantial compensatory services, I need not address the equities in this matter.

ORDER

1) The DOE shall issue authorizations for one hour of 1:1 compensatory tutoring at the rate of up to $125 per hour for each school day (10 month program) in the 2015-2016 SY, 2016-2017 SY and the 2017-2018 SY for the period ending March 26, 2018.

2) The tutoring must be provided by a certified special education teacher and/or a reading specialist however, the instructor must be certified in O-G

methodology.

3) The CSE shall be provided with a Progress Report after every 5 months of instruction unless the CSE waives the receipt of such reports in writing.

4) The services shall be delivered at the option of the parent but must be utilized by no more than 2 ½ years from the date of this order.

5) The DOE may require evidence of appropriate provider credentials consistent with this order 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

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