Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 207622

New York City Department of Education, Impartial Hearing Decision

August 19, 2022·Dora M. Lassinger·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

NYSED # 551382 / NYC # 207622

FINDINGS OF FACT AND DECISION

Case Number: 207622

Student's Name: REDACTED

School District: REDACTED

Scho Hearing Requested By: Parent

Record Closed Date: August 16, 2022

Hearing Officer: Dora M. Lassinger

Procedural Background The student’s parent requested an impartial hearing on April 1, 2021, alleging a denial of FAPE for the 2018-2019, 2019-2020, and 2020-2021 school years, and requesting tuition reimbursement for the student’s unilateral placement at the REDACTED School (hereinafter “the private school”) for the 2019/2020 and 2020/2021 school years, as well as funding for compensatory academic remediation. (Case No. 207622). (Par. Ex. A).[1] I was designated to hear this matter on December 9, 2021.

The parents filed another impartial hearing request on September 10, 2021, (Case No. 216373) challenging the student’s program for the 2021/2022 school year, and seeking funding for tuition at the private School, as well as an independent vocational assessment. (Par. Ex. B). I was also designated to hear the second case on December 9, 2021. On December 14, 2021, I ordered that Cases 207622 and 216373 be consolidated. (IHO Ex. V ).

On March 11, 2022, the parents filed a third due process complaint (225230), again alleging a denial of FAPE for the 2021/2022 school year, and requesting tuition reimbursement for the private school as well as an independent vocational assessment; and adding a specific request for a compensatory award of 156 hours of 1:1 tutoring with a learning specialist. (IHO Ex. IV). By decision dated March 22, 2022, I ordered that Cases 225230 and 207622 be consolidated. (IHO Ex. VI).

A hearing on the merits was held on April 12, June 15, 2022, June 22, 2022, July 22, 2022. The compliance date was extended for trial preparation and due to extensive testimony/issues, with a final compliance date is August 21, 2022. (IHO Ex. VII).

Department of Education (“DOE”) Position

  • • The DOE presented documentary evidence only, and did not seek to defend its recommendations for the school years at issue. (Tr. p. 109). In its closing argument, the DOE argued against any award of compensatory education, noting that the student graduated high school, and will be attending college in the 2022-2023 school year. The DOE argued that any compensatory education award should take into account that the parent received tutoring, funded by the DOE, throughout the 2021/2022 school year, pursuant to the pendency order. (IHO Ex. VIII). The DOE also opposed any award of ancillary student activity and administrative fees, $250 each for both the 2019/2020 and 2020/2021 school years, arguing that they are not part of any enrollment contracts. (Tr. p. 266).

Parent’s Position

  • • The parent is seeking a finding that the student was denied a FAPE for the 2018/2019, 2019/2020, 2020/2021 and 2021/2022 School Years, and argues that the student is entitled to reimbursement and /or a compensatory education award in the form of tuition funding for the 2019/2020 and 2020/2021 school years.[2] The parent also seeks additional 1:1 academic remediation with a learning specialist (180 hours, 5 hours per week based upon a 36 hour week school year), arguing that the DOE committed a gross violation of the IDEA during the 2018-2019 school year. Finally, the parent requests an enhanced rate independent level II/III vocational assessment voucher, to be conducted by a trained vocational evaluator or rehabilitation counselor, as compensation for the DOE’s failure to conduct an updated vocational assessment, on a timely basis. (IHO Ex. IX).

Evidence at Hearing

  • • As of the time of hearing, the student had graduated from the private school, and was accepted to college, with a scholarship. (Tr. pp. 224-225).
  • • The student was adopted in 2011 from REDACTED when she was eight and one-half years old. She first attended her neighborhood public school. After two years, the parent placed her in a small private school for three years. She returned to the public schools for fifth grade. (Tr. pp. 181-183).
  • • The student was evaluated for special education services at the end of her REDACTED grade year (July 2015), and began to receive Special Education Teacher Support Services (“SETSS”) and group counseling. During her REDACTED grade year, she attended a school in Brooklyn; however she stopped attending school, due to anxiety about her relationships with peers. During this time period, she became more oppositional and aggressive. Her classification was changed from Learning Disability to Emotional Disturbance, and she was placed in a residential school. (DOE Ex. 19 at 3). According to DOE records, the residential placement was made at the parent’s request. (DOE Ex. 11).
  • • The parent felt that the student did not make academic progress in her residential placement, and advocated for a change of placement. (Tr. pp. 188-189). In May 2018, an IEP meeting was held, in order for the student’s case to be deferred for another school placement. In June 2018, the parent requested an IEP meeting to change the placement to a day program. (DOE Ex. 2 at 3).
  • • An IEP meeting was held on July 19, 2018. The student was classified with Emotional Disturbance and recommended for placement in a state approved nonpublic day school, with an interim placement in a D75 12:1+1 School with related services of Counseling (individually and group) and Speech/Language Therapy (“SLT”) (individual and group) It was reported that the student was reading and performing math on an eighth grade level. (DOE Ex. 2).
  • • According to the parent, the student could not be placed in a nonpublic day school, as all the seats were filled. The student was given a temporary placement at a public high school. The parent testified that the student sat home without a placement for September. She began attending the public school on September 25, 2018. (DOE Ex. 4, 7). (Tr. pp. 191-192). She parent felt that her daughter could not be placed, due to the fact that her IEP reflected a “very, very severe psychiatric diagnosis”. She therefore requested a psychiatric evaluation. (Tr. pp. 190-191.)
  • • Another IEP was developed on September 20, 2018 to review the most recent psychiatric evaluation and recommend an interim placement in a community school, as the parent had concerns about the previously D75 recommendation, as an interim placement. (DOE Ex. 5 at 3; DOE Ex. 11 at 2). The student was diagnosed by the psychiatrist with Oppositional Defiant Disorder, and her classification remained Emotional Disturbance. The IEP indicated that the student suffered with Anxiety, Attachment Disorder ad Posttraumatic Stress Disorder. The recommended placement remained Special Class, NYSED approved day school (12:+1), with 15:1 in a community school, as an interim placement, with related services of Counseling and SLT. (DOE Ex. 5). On September 24, 2018, a School Location Letter was sent with a seat for the student at a public high school. (DOE Ex. 7).
  • • An Educational Evaluation was conducted in October 2018, at the request of the parent. As background, it was reported that the student received an initial IEP in November 2015, and was recommended for SETSS and counseling services. In January 2017, the student was recommended for an Integrated Co-Teaching (”ICT”) program with SETSS, SLT and Counseling; however the parent requested a residential program in a letter. The parent’s request was granted and this student was placed in a residential program for the 2017-2018 school year. It was reported that the parent disagreed with the homework policy and instruction at the residential school, and requested a change of placement. In July 2018, the parent requested a placement for her daughter in nonpublic day school. As no private school placement was secured, an interim placement was made. The student scored in the average range for reading, with below average reading vocabulary. Her writing skills were below average. Her math computation skills were average; however her math fluency and concepts and applications were below average. (DOE Ex. 11).
  • • A Speech and Language Evaluation was performed on October 2, 2018, after the student began attending the public high school. The student’s reading comprehension score was in the average range. Her writing skills were below average. Oral language and auditory comprehension of spoken language were reported to be adequate. She demonstrated low syntactic skills. It was recommended that the student continue attending speech services, once per week individually, with goals specifically related to syntax and production of complex sentences. (DOE Ex. 8).
  • • A classroom observation was performed on October 12, 2018. It was reported that the student was in a class of 15:1, and was one of the better students in the class; and does not pose the same behavioral problems as her classmates. She remained focused on her work, despite the distractions in the class, and helped those working in her group to stay focused. The student showed an impressive ability to focus and encourage students to work. In her small group, she was a natural leader. She showed an ability to handle the academic work and get along with her peers. (DOE Ex. 9).
  • • On October 24, 2018, the parent secured a letter in support of her request for a change of placement, from a teacher who had recently submitted a letter of resignation to the school. He wrote that the student had been placed in a class that was “simply out of control” and neglected. (Par. Ex. C).
  • • On October 26, 2018, the parent wrote to the school counselor stating that her daughter was being bullied, and that her school placement was unacceptable. (DOE Ex. 10).
  • • On October 30, 2018, the student’s counselor submitted a progress report, indicating that services had commenced on September 27, 2018. She reported that the student actively participates in counseling three times per week, and has expressed a desire to do well academically and become involved in school activities. She joined the school’s Russian club and the Model United Nations (“UN”) club, and was voted into the leadership position of Secretary for the Model UN club. She was described as an independent and responsible high school student, who has the ability to advocate for herself and seek out adults, when faced with a frustrating/stress inducing situation. She recommended that counseling be reduced to once per week individually. The counselor recommended family counseling, and wrote that the parent agreed. (DOE Ex. 12).
  • • Another IEP meeting was held on November 2, 2018, to review the updated evaluations. It was reported that the student was taking an academic schedule in preparation for the Regents examinations. Her counselor felt she could make progress in an ICT program with SETSS; and that the student was frustrated by the slow pace of the 15:1 class she was in. Her Research/ Writing teacher reported that the student has adjusted well to class, and was reported to be a “treasure” in class. She finished her work promptly and was at top of the class. She used graphic organizers to help generate work. Her speech/language provider stated that she exhibits difficulty with verb tense and word order, and needs to work on producing more complex sentences. Her mother no longer felt that Emotional Disability is an appropriate classification, and that counseling services should be reduced to once per week. [3] The student’s classification was changed to Learning Disability, and her program recommendation was changed to ICT with SETSS five periods per week, Counseling once per week individually and SLT once per week individually. (DOE Ex. 18). The parent was notified that the new program would be provided at the same public school setting. (DOE Ex. 15).
  • • The parent testified that she requested the meeting to get her daughter out of a dangerous class; but also testified that she was “ambushed” at this meeting. (Tr. pp. 195, 197). She testified that her daughter’s classification was changed illegally, because the DOE was unable to secure a seat in a private day school. (Tr. p. 198). The parent’s request for a transfer was granted, and the student attended a different school for three days; however she refused to continue to attend there, and stated she would return to the public high school she previously attended. (Tr. p. 199).
  • • According to the parent, the student was then placed in ICT classes at the public high school, but did not receive the services which she needed, and which were mandated in her IEP. (Tr pp. 200-201). She testified that her daughter never received SETSS, Counseling or SLT. (Tr. p. 202). The documents in the record, however, indicate that the student received SLT, Daily SETSS and Counseling. (DOE Ex. 16, 17, 18).
  • • The student’s Resource Room/SETSS teacher reported that the student was receiving daily SETSS, and was achieving excellent grades: (98- Health; 87- Living Environment; 93 ELA, 92- Global- 92- Math- 94 in Phys. Ed. ) She reported that the student was highly motivated and performing at her potential. She reported that the student joined clubs at school, made friends quickly and works hard on her academics; but that she has anxiety regarding tests. (DOE Ex. 18). Her Living Environment teacher reported that the student received scaffolded notes/ guided notes daily; and that her academic performance was average to strong. (DOE Ex. 18 at 7). Her Algebra Teacher reported that the student is performing at her potential with an overall grade of 91; and receiving differentiated worksheets and small group instruction. (DOE Ex. 18).
  • • In A Speech/Language Report, it was reported that student had progressed in her goals; and that further development of her language skills could be achieved within an instructional setting, rather than in SLT. (DOE Ex. 16). Her counselor reported, on June 6, 2019, that the student adjusted to the public high school extremely well, and was able to thrive academically/socially, independent of mandated school counseling. She discussed her strained family relationships. It was recommended that counseling continue. (DOE Ex. 17).
  • • A neuropsychological evaluation was performed in June 2019, at the end of the student’s REDACTED grade year, at the public high school setting. The neuropsychologist reviewed teacher reports completed at the end of the student’s ninth grade school year, indicating that the student displays many strengths and is a well-adjusted student.
  • • It was reported that she “engaged in classroom work well and independently completes assignments” Her “academic skills were described as average to strong, although it was noted that she has a comprehension delay and requires additional time to understand material.” Her “math teacher identified her weaknesses as attention to detail and making careless errors”. Moreover, her “resource teacher noted that she doubts herself while taking tests and reports experiencing test anxiety.”(DOE Ex. 19 at 3-4).
  • • It was reported that the student’s overall intellectual functioning was in the low average range, with solidly average nonverbal cognitive abilities, and verbal cognitive abilities in the very low range. The student displayed strength in visual perception and fine motor skills, and in attention and executive functioning. Her language skills varied, with nicely developed expressive language and receptive language skills; but poor performance on crystalized verbal intellectual tasks, consistent with a previous diagnosis of Language Disorder. Some of her vulnerabilities were attributed to her complex history, including being educated in REDACTED until the age of eight, frequent school changes, and a complex psychiatric history involving school refusal and placement in a therapeutic setting. Therefore she was diagnosed with Developmental Disorder of Scholastic Skills, Unspecified. The student was also diagnosed with Unspecified Anxiety Disorder.
  • • The student displayed some vulnerabilities in word reading, math calculation and math fluency skills, which were within the Low Average range. She demonstrated adequate reading comprehension and applied math problem-solving skills. Although her writing and spelling scores fell within the Average range, she was observed to produce sentence structure and grammatical errors on the written expression task.
  • • It was recommended that she continue in a structured, but supportive environment, such as an ICT class, with frequent 1:1 and small group instruction; but that she not be placed with students who have maladaptive, externalizing behavior problems. It was also recommended that she receive one-to-one tutoring, SLT and School Counseling. (DOE Ex. 19).
  • • It was stipulated that there was no IEP meeting between November 2018 and June 23, 2020. (Tr. p. 206). The parent testified that she did not receive a prior written notice or a school location letter for the 2019/2020 school year. (Tr p. 206). She later testified that the student was given a school placement; however the student’s records were never sent to the school, and the seat was given away, before she could meet with the school’s principal. (Tr. p. 210).
  • • The parent attended the June 23, 2020 IEP meeting. (Tr. p. 213). The CSE recommended that the student attend ICT classes with SETSS, (2 periods per week of ELA and 3 periods of Math) with related services of Counseling and SLT. (DOE Ex. 20). The parent testified that she did not receive a school location letter for the 2020/2021 school year. (Tr. p. 216).
  • • Another IEP meeting was held on June 25, 2021, and the placement recommendations were kept from the prior IEP. (DOE Ex. 21; Tr. p. 218). On July 2, 2021, the DOE notified the parent of the public school placement where the services recommended in the June 25, 2021 IEP would be provided. (DOE Ex. 23). The parent testified that she called the school several times, but that she never received a call back.(Tr. p. 220).
  • • The parent testified that the student has made progress at the private school, and benefited from small school and small classes, where she could express herself. She learned to accept her unique learning style, which helped alleviate her anxiety. Her teachers were also available to her via email and text, and would modify lessons to meet her needs. (Tr. p. 222). She also received help in study hall. (Tr. p. 223).
  • • She graduated and won the award for being the student who made the most progress. She benefited from taking a public speaking class, and developed her writing skills. The student will be attending a very small college, where she won a leadership scholarship (one of 10 available scholarships after competing with 350 students). She testified that the student will receive one-to-one help with academics and social needs at the college. (Tr. pp. 224-225).
  • • Pursuant to the Order on Pendency (IHO Ex. VIII), the student received tutoring three times each week, throughout the 2021/2022 school year, which was funded by the DOE. (Tr. pp. 235-236, 241-242).
  • • The private school’s director of college guidance, outreach coordinator and student activities coordinator, (hereinafter referred to as “the counselor”) testified that she has a bachelor’s degree in English and a Master’s Degree in Education (college counseling). (Tr. pp.120-121 ). The private school is a college preparatory high school, with an average enrollment of 75 students. The school provides individualized programs, with classes capped at 10 students, and an average class size of seven students. Approximately 45 percent of the students have IEP’s or neuropsychological evaluations. The school offers flexible scheduling and one-to-one programs. The flexible scheduling allows the student to leave school early to attend therapy outside of school. Learning differences are accommodated with tutoring sessions, remediation, homework help and technology. Teaching staff have master’s degrees in education or in their subject area. The private school has a director of learning support. (Tr. pp. 123-125, 139, 155). The private school collaborated with the student’s outside therapist and tutor. (Tr. p. 142).
  • • The counselor served as the the student’s guidance counselor since November 2019, and has counseled her throughout the three years that she has been in attendance at the school. During the 2020/2021 and 2021/2022 school years, the student was enrolled in an executive functioning study hall, where she received support from the director of learning support, in a small group, averaging three to four students. This included homework help. (Tr. pp. 126-128, 159).[4] The student entered the school during the 2019/2020 school year as a REDACTED grade student, and progressed to the next grade for each of the three years she was enrolled. (Tr. pp. 152-153).
  • • The counselor testified that one-to-one tutoring is also offered to all of the students at the private school. (Tr. pp. 124, 155). She testified that the student received one-to-one homework help, during study halls, for the three school years that she attended. (Tr. p. 159).
  • • The student struggles with math and language skills, and suffers from anxiety. Her program is designed to alleviate her anxiety as it relates to academics. (Tr. p. 128). She has an expressive language deficit. In math, she struggles to process a formula quickly. (Tr. p. 129). The private school placed her with teachers with whom she would feel comfortable. She was placed with the same English teacher throughout her three years at the school, and attended his study hall. This resulted in a reduction in anxiety related to her written work. She was also provided systems to develop more advanced writing skills. During the 2019/2020 school year, she took an extra period of English, so she could receive repetition of information.
  • • During the 2021/2022 school year, she took an Advanced Placement (“AP”) level English class, for which she will receive college credit. She was able to submit assignments digitally. In math, she was placed in small classes, where she could receive more attention, and was able to attend study hall with her math teacher. (Tr. pp. 131, 133-137).The student participated in extracurricular activities and a community service group, and became a student ambassador. (Tr. p. 145). She received homework help during study halls. (Tr. p. 159).
  • • During each school year, she was grouped with other students at her grade level. (Tr. p. 140). The school provided guidance counseling. During the 2019/2020 and 2021/2022 school year, this occurred quarterly, and consisted of reviewing her report card, and making sure her goals were being met socially and academically. During the 2021/2022 school year (her senior year), there were additional weekly meetings, to work on college applications, and to address her anxiety surrounding the college application process. (Tr. pp. 147-148, 164). There were also monthly sessions during the last three months of her junior year. (Tr. p. 163),
  • • The student began the 2019/2020 with grades which were not strong; but finished the year on grade level in English, math, and science. She also finished the 2020/2021 school year on grade level. By the end of her twelfth grade level, she performed above grade level. (Tr. p. 165).

The counselor testified that during the three school years, the student has progressed in her self-confidence, in terms of academics. During her senior year, she took on a difficult schedule including AP literature, and an advanced economics class. In addition, she took precalculus, when she did not have to take a math class. She benefited from the small group environment, where she felt supported. She testified that the placement was appropriate for her for all three school years. (Tr. pp. 149-151). She received a final grade of 91% in AP English and a final grade of 75% in pre-calculus. (Par. Ex. CC, DD).

A neuropsychological evaluation was performed in November 2021. (Par. Ex. V). Testing revealed that the student improved in her overall cognitive performance; and her full Scale IQ was average, with a low average score on the Verbal Comprehension Index. It was reported that the student has made progress; although she continues to exhibit language-based learning weaknesses that affect her reading rate, fluency and comprehension. She was diagnosed with a Language Disorder (by history), Post Traumatic Stress Disorder (by history, largely in Remission), a Specific Learning Disorder with impairment in reading (mild) and a Specific Learning Disorder in mathematics (moderate), and an Unspecified Anxiety Disorder. It was recommended that for high school, she should be placed in a small, nurturing, supportive, calm and safe school placement with individualized attention and differentiated instruction.

It was recommended that she enroll in a small and supportive postsecondary educational environment, that provides specialized support and structure for students with learning disabilities.

Independent of the placement recommendations, the neuropsychologist recommended that she receive one-to-one learning support, approximately three times per week, for approximately 150 to 180 hours for support and remediation in reading, verbal knowledge, math and memory strategies, and for organization. (Par. Ex. V).[5]

  • • On September 9, 2019, the parent signed a contract with the private school enrolling the student for the 2019-2020 school year, with an annual tuition rate of $10,500 plus an additional $250. for the student activity fee and $250 for the administrative fee, for a total of $11,000. (Par. Ex. Z ). Proof of payment of that amount was not submitted at the hearing.
  • • On September 14, 2020, the parent signed a contract with the private school enrolling the student for the 2020-2021 school year, with an annual tuition rate of $10,500 plus an additional $250. for the student activity fee and $250 for the administrative fee, for a total of $11,000. The parent made payment in full. (Par. Ex. AA; Par. Ex. F) As a result of the pendency order, the DOE reimbursed the parent $2,700. of the 2020-2021 tuition, leaving a balance of $8,300, for which the parent is requesting reimbursement. (Tr. pp. 261-262).
  • • On May 11, 2021, the parent signed a contract with the private school enrolling the student for the 2021-2022 school year, with an annual tuition rate of $11,250 plus an additional $250. for the student activity fee and $250 for the administrative fee and $500 for the senior fee, for a total of $12,250. As of the time of hearing, tuition for the 2021-2022 school year and school fees were paid in full and were fully reimbursed, pursuant to the pendency order. (Par. Ex. S; Par. Ex. EE, Tr. pp. 260, 263).

Findings of Fact, Conclusions of Law and Order The school district bears the burden of proving the appropriateness of the recommended program. Education Law 4404(1). The school district must comply with the procedural requirements of the Individual with Disabilities Education Act. (IDEA), and the IEP developed through its CSE must be reasonably calculated to enable the student to receive meaningful educational benefits. (Board of Educ. v. Rowley, 458 U.S. 176, 192 [1982]. The instruction offered must be specially designed to meet the child’s unique needs through an individualized education program. Endrew F. v. Douglas County School District, 137 S. Ct. 988 (2017). The IEP must be reasonably calculated to enable the child to make progress appropriate in light of his circumstances. Id. at 1002.

A Board of Education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by be Board of Education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Forest Grove School District v. T.A., 557 U.S. 230 (2009); School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U. S. 359 (1985). The fact that the facility selected by the parents to provide special education services to the child is not approved as a school for children with disabilities does not preclude an award of reimbursement. Florence School District Four et al. v. Carter, 510 U.S. 7(1993).

The DOE presented documentary evidence only, for all of the school years in question; and did not otherwise seek to defend its actions for any of the school years. I find that it failed to meet its burden of proving that it provided the student with a FAPE for any of those school years at issue.

As to the 2019/2020 and 2021/2022 School Years, the remedy sought is tuition reimbursement. Tuition has already been funded for the 2021/2022 school year, pursuant to the pendency order.

Appropriateness of Parental Placement To qualify for funding under the IDEA, the parents must demonstrate that the parental placement provides “educational instruction specially designed to meet the unique needs of a handicapped child supported by such services as are necessary to permit the child to benefit from instruction.” See Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F. 3d 356, 365 (2d Cir. 2006) (citing Rowley). cert. denied, Board of Educ. Of Hyde Par, v. Frank G. 128 S. Ct. 436 (2007).

I find that that the parent demonstrated that the student’s program at the private school was specially designed to meet the student’s unique needs, for the 2019/2020, 2020/2021 and 2021/2022 school years. The school provided the student with very small classes, counseling, access to a learning specialist, and study halls, where she received additional support, including one-to-one homework help. The school accommodated her academic and emotional needs by allowing her to submit assignments digitally, and providing flexible scheduling.

The student began the 2019/2020 with grades which were not strong; but finished the year on grade level in English, math, and science. She also finished the 2020/2021 school year on grade level. By the end the 2021/2022 school year, she performed above grade level, taking advanced classes, and was accepted to college with a scholarship.

Equitable Considerations In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. of Educ., 49 IDELR 39 [S.D.N.Y. Nov. 20, 2007]. The Courts must consider all relevant factors, including whether the parent participated in the IEP meeting, visited the proposed placement and provided timely notice of her intent to place the student in a private school. See M.H. and E.K. v. New York City Dept of Education, 685 F 3d 217 (2d Cir. 2012

  • • The record indicates that the parent cooperated with the DOE by participating in CSE reviews and attempting to communicate with proposed placements. Contrary to the DOE’s argument, the student activity fee and administrative fees were part of the enrollment contract, for both school years, and should be reimbursed.
  • • Payment for tuition and fees for the 2021/2022 school year has already been made pursuant to the Pendency Order. As to the 2020/2021 school year, proof of payment has been provided. As to the 2019/2020 school year, no proof of payment was provided.

For the reasons set forth above, I find that the parent is entitled to reimbursed for the student’s tuition and fees at the private school, for the 2019-2020 school year (up to the amount of $11,000), upon presentation of proof of payment thereof. As to the 2020/2021 school year, I will order the DOE to pay the parent $8,300, which is the difference between the amount she paid for tuition and fees, and the amount already reimbursed.

Compensatory Education (2018/2019 School Year)

The Second Circuit has held that compensatory education may be awarded to students who are no longer eligible for services under the IDEA by reason of age or graduation only if the district committed a gross violation of the IDEA, which resulted in the denial of or exclusion from, educational services for a substantial period of time. In re: student with a Disability, Appeal No 19-090, 119 LRP 45679 (affirmed at Kirk v. New York City Dept of Educ. 78 IDELR 25 (NY Supreme Court, NY County 2020); citing Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 n.15 [2d Cir. 2015].

The parent argues that a gross violation of IDEA was committed because the DOE changed the student’s placement recommendation from a non-public school to an ICT/SETSS program, without evaluations or assessments; and that the November 2018 IEP was not implemented. The record does not support this argument. In fact, the CSE conducted a classroom observation, a speech/language evaluation and an educational evaluation before recommending the change of placement, and received a report from the student’s counselor. The student’s counselor felt that the student could make progress in an ICT program with SETSS; and that the student was frustrated by the slow pace of the 15:1 class she was in. The neuropsychologist who evaluated the student at the end of the 2018/2019 school year also recommended an ICT placement.

Furthermore, although the parent complained that her daughter was bullied at the school and demanded a transfer, the record indicates that her daughter thrived there both academically and in extracurricular activities; and that when given the opportunity to go to a different school, she chose to return. Finally, contrary to the parent’s testimony that her student received no services at the public high school, the record indicates she received SLT, Counseling and daily SETSS.

As there was no gross violation of the IDEA, during the 2018/2019 school year, I do not find that the student is entitled to compensatory education, in the form of tutoring services, or an independent Level II/III Vocational Assessment. I do not find that the DOE was required to perform the type of assessment the parent is requesting, and there is no indication that the parent ever requested this type of assessment until the filing of the due process complaint. See In re: Student with a Disability, Appeal No 19-090.

While I find that the student is not entitled to compensatory education, I do find that she is entitled to “make-up” those services which were part of pendency order, but which were not implemented, (due to the fact that the order was not issued until June 24, 2021, and the order was to be effective from April 2, 2021). See In re: Student with a Disability, Appeal No 19-090 citing Doe v. E. Lyme Bd. of Educ., supra. The pendency order included 1:1 tutoring, but did not specify the frequency of that tutoring. For the duration of the 2021/2022 school year, the DOE funded three hours per week of tutoring. Therefore, I find that the student should receive an additional 36 hours (12 weeks x 3 hours per week) of tutoring services, to make up for the three month period when she was entitled to, but did not receive the additional tutoring service.

ORDER

For all of the foregoing reasons, it is hereby ordered that

(1) The DOE shall reimburse the parent $8,300, on account of the student’s tuition and fees at the private school for the 2020-2021 school year, by September 16, 2022;

(2) The DOE shall reimburse the parent $11,000, on account of the student’s tuition and fees at the private school for the 2019/2020 school year, upon presentation of proof of payment thereof;

(2) The DOE shall fund 36 hours of one-to-one tutoring, with a qualified learning specialist, at a reasonable market rate, to be used within two years of this order.

  • • Dated: August 19, 2022 Dora M. Lassinger

DORA M. LASSINGER, 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 Office (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.

DOCUMENTATION ENTERED INTO THE RECORD

  • • Impartial Hearing Officer Exhibits I. DOE’s Motion to dismiss, 2-2-22, 116 pp.

II Parent’s Brief in Opposition, undated, 6 pp.

III. Order on Motion to Dismiss, 2-21-22, 2 pp.

IV. Hearing Request, 3-11-22, 13 pp.

V. Order of Consolidation, 12/14, 21, 1 p.

VI. Order of Consolidation, 3-22-22, 2 pp.

VII. Extensions, various dates, 5pp.

VIII. Order on Pendency, 207622, 6-24-21, 6 pp.

IX. Parent’s Closing Submission, 8-15-22, 16 pp.

Department of Education Exhibits

EXHIBIT NO.

DATE

DESCRIPTION

NO. OF PAGES

12/20/15

Signed Consent to Evaluate

3

7/19/18

July 19, 2018 IEP

25

7/19/18

July 19, 2018 IEP Attendance

1

8/28/18

August 28, 2018 Prior Written Notice and School Location Letter

6

9/20/18

September 20, 2018 IEP

25

9/20/18

September 20, 2018 IEP Attendance

1

9/24/18

September 24, 2018 Prior Written Notice and School Location Letter

6

10/2/18

October 2, 2018 Speech and Language Progress Report

5

10/12/18

October 12, 2018 Classroom Observation

2

10/26/18

October 26, 2018 Parent Email to School Counselor

3

10/29/18

October 29, 2018 CSE Educational Evaluation Report

9

10/30/18

October 30, 2018 Counseling Progress Report

2

11/2/18

November 2, 2018 IEP

27

11/2/18

November 2, 2018 IEP Attendance

1

11/5/18

November 5, 2018 Prior Written Notice and School Location Letter

6

May 2019

May 2019 Speech and Language Progress Report

4

6/6/19

Counseling Progress Report

2

6/19/19

June 19, 2019 Teacher Reports

9

6/20/19

June 20, 2019 Neuropsychological Evaluation

19

6/23/20

June 23, 2020 IEP

25

6/25/21

June 25, 2021 IEP

25

6/25/21

June 25, 2021 IEP Attendance

1

7/2/21

July 2, 2021 Prior Written Notice and School Location Letter

6

Parents’ Exhibits

LETTER

DATE

DOCUMENT

No. Of Pages

REDACTED

Footnotes

[1] By decision dated February 21, 2022, I denied the Department of Education’s (“DOE’s”) Motion to Dismiss all claims regarding the 2018-2019 school year, as being time barred. (IHO Ex. III). On June 24, 2021, another IHO made an Order on Pendency, directing the DOE to fund the student’s tuition at the private school (as the “operative placement”) effective April 2, 2021 and during the pendency of due process; and to provide the student one-to-one tutoring, speech/language therapy and counseling. The pendency order did not specify the frequency of the tutoring service. (IHO Ex. VIII).

[2] Tuition and fees at the private school for the 2021/2022 school year were reimbursed in full by the DOE, pursuant to the Pendency Order, as of the conclusion of the hearing. (Tr. pp. 260, 262-263).

[3] The parent claimed, in a letter dated May 2, 2020, that the student’s classification was changed to deny her daughter the support she was legally entitled to. (Par. Ex. D).

[4] She was also offered this support during the 2019/2020 school year but did not take it, because she felt it was stigmatizing. (Tr. pp. 127, 156).

[5] There is no indication in the neuropsychological evaluation that the evaluator was aware that the student was receiving private tutoring, three times per week, during the 2021/2022 school year.