New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 569313 - NYC: 224072

FINDINGS OF FACT AND DECISION

Case Number:

224072

NYS Identifier Number:

569313

Student’s Name:

STUDENT

Date of Birth:

REDACTED

District:

REDACTED

Hearing Requested By:

Parent

Date(s) of Hearing:

June 14, 2022

Actual Record Close Date:

July 19, 2022

Hearing Officer:

Amy Lynne Itzla, Esq.

FINDINGS OF FACT AND DECISION

INTRODUCTION

I conducted an impartial hearing pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f)(3), regarding STUDENT The hearing was convened at the written requests of the Parents by letter dated January 7, 2022. (Exhibit A) A hearing was held on June 14, 2022, by video/teleconference, with the presence of a court reporter to create a written transcript. A list of the individuals who appeared at the hearing and a list of the documents received into evidence are attached to this decision.

In scheduling the hearing date, and throughout this proceeding, this Impartial Hearing Officer granted multiple requests by the parties for extensions of the 45-day timeline for the due process hearing, pursuant to 34 C.F.R. §300.515(a). The requests were granted, in accordance with 34 C.F.R. §300.515(c), and after full consideration of the cumulative impact of the following factors: 1) the impact on the child’s educational interest or well-being which might be occasioned by the delay; 2) the need of a party for additional time to prepare or present the party’s position at the hearing in accordance with the requirements of due process; 3) any financial or other detrimental consequences likely to be suffered by a party in the event of delay; and, 4) whether there has already been a delay in the proceeding through the actions of one of the parties. [8 NYCCR §200.5(j)(5)(ii)]

BACKGROUND

STUDENT was REDACTED years old at the beginning of the 2019-2020 school year and 6 years old at the beginning of the 2020-2021 school year. He has been classified by the Department of Education (“DOE”), through its Committee on Special Education (“CSE”), as a student with a Speech or Language Impairment. (Exhibits B, C, F)

The Parent has alleged that, for the 2019-2020 and 2020-2021 school years, “As a direct result of the NYCDOE’s failure to properly evaluate STUDENT, mandate appropriate and necessary related services, and failure to develop appropriately ambitious IEPs targeting his unique needs with sufficient, appropriate, meaningful and measurable IEP goals, STUDENT failed to make meaningful educational progress and the NYCDOE denied him a FAPE.” (Exhibit A)

The Parent is seeking funding/reimbursement for at least 595 hours of compensatory tutoring services and at least 80 hours of compensatory speech and language therapy based on the DOE’s failure to offer a procedurally valid and substantively appropriate Individualized Education Program (“IEP”) and placement recommendation for STUDENT for the 2019-2020 and 2020-2021 school years, and the DOE’s failure to provide mandated services.1

POSITIONS OF THE PARTIES THE DOE’S CASE The DOE did not offer an opening statement, documents, or witness testimony. In addition, the DOE chose not to cross-examine the Parent’s witnesses, whose direct testimony was provided through sworn affidavits, although they were made available for cross-examination on the day of the hearing. The DOE also chose not to make a closing argument and stated, instead, that, “We will rest on the opening that we’ve already made.” However, there had been no opening statement made by the DOE. The DOE confirmed that it had no position with regard to the claims being asserted by the Parent. The only participation in the hearing process by the DOE was an appearance by its representative. (T. 11; 15-16)

THE PARENTS’ CASE The Parents presented the testimony of two witnesses: REDACTED, Director of Educational Services at REDACTED Learning Center (“REDACTED”); and, REDACTED, STUDENT’s mother.

REDACTED is STUDENT’s mother. She provided her direct testimony through a sworn affidavit. (Exhibit L) She was available at the hearing for cross-examination, but the DOE chose not to cross-examine her. (T. 15-16) REDACTED’s complete testimony, contained in her affidavit, is considered fully incorporated into the Findings of Fact and Decision, although not fully contained herein.

REDACTED’s testimony included a detailed account of all the deficiencies contained in the IEPs created for STUDENT for the 2019-2020 and 2020-2021 school years, as well as her first-hand observations of STUDENT’s struggles, academic needs, and failure to progress. She included references to the particular documents in evidence to support her assertions.

REDACTED testified that, “Given STUDENT’s complete failure to make academic progress during the 2019-2020 and 2020-2021 school years, and with no options from the NYCDOE for academic help, I had no choice but to obtain private tutoring at my own personal expense to prevent regression and to teach STUDENT the fundamental skills that he was missing but needed in order to access the curriculum and make appropriately ambitious progress.” She added that, “I told STUDENT’s teacher that I was going to enrolled STUDENT into the REDACTED Learning Center. In response, she told me that yes, REDACTED will help STUDENT because he needs a lot of help.”

REDACTED testified that, “It broke my heart that when I enrolled STUDENT at REDACTED he had to start with learning his letter sounds because he did not know all of them. Now, though, after tutoring at REDACTED, he does know all of his letter sounds and can put letters together to sound out words. I have seen STUDENT make a lot of improvement since he started at REDACTED. I recently watched STUDENT read a book one night at home and he was able to pronounce the letters accurately to say the words.” With regard to the costs incurred for tutoring services, REDACTED explained that:

• • STUDENT started tutoring at REDACTED on July 13, 2021.
• • On or about June 28, 2021, I used a credit card to pay the Ninety-Five Dollar ($95.00) evaluation fee. STUDENT started tutoring at REDACTED on July 13, 2021.
• • As of May 9, 2022, I paid REDACTED a total of Fifteen Thousand Sixty-Five Dollars ($15,065.00).
• • I intend to pay an additional One Thousand Two Hundred Eighty Dollars for additional 1:1 tutoring on or about June 3, 2022.
• • Including the June 2022 payment, I will have paid REDACTED a total of Sixteen Thousand Three Hundred Forty-Five Dollars ($16,345.00), which is the amount I am respectfully requesting in tuition reimbursement.
• • On or about July 8, 2021, I took out a loan in the amount of Eleven Thousand Two Hundred Ninety Dollars ($11,290.00) to enable STUDENT to begin 1:1 tutoring at REDACTED. Parent Exhibit I- 008. I have been paying this loan off on a monthly basis.
• • On or about March 2, 2022, I used a credit card to pay an additional One Thousand Two Hundred Eighty Dollars ($1,280.00), for additional 1:1 tutoring at REDACTED. Parent Exhibit I- 007.
• • On or about April 11, 2022, I used a credit card to pay an additional One Thousand Two Hundred Eighty Dollars ($1,280.00), for additional 1:1 tutoring at REDACTED. Parent Exhibit I- 006.
• • On or about May 9, 2022, I used a credit card to pay an additional One Thousand One Hundred Twenty Dollars ($1,120.00), for additional 1:1 tutoring at REDACTED. Parent Exhibit I- 006.
• • I anticipate that on or about June 3, 2022, I will use a credit card to pay an additional One Thousand Two Hundred Eighty Dollars ($1,280.00), for additional 1:1 tutoring at REDACTED. (Exhibit I, page 9)

(Exhibit L; Emphasis in original)

REDACTED described the speech and language therapy that was to be provided by the DOE, but was not. During a resolution meeting held on February 2, 2022, and as indicated in the Partial Resolution Agreement that resulted, signed by the Parent on March 8, 2022, the DOE agreed, in part, that, “The DOE will issue RSA for Speech and language for 74 missed sessions for School year 2020-2021.” (Exhibit J; Emphasis in original) REDACTED testified that, “After signing the agreement, I spent a considerable amount of time calling the speech therapists listed on the NYCDOE’s speech therapy provider list. I was unable to arrange to have anyone provide the agreed upon services.” REDACTED affirmed that, despite her attorney’s involvement and communication with the DOE regarding identifying a provider, “To date, I have not been able to find a provider to provide the agreed upon speech services.” (Exhibit J)

REDACTED is the Director of Educational Services at REDACTED. She provided her direct testimony through a sworn affidavit. (Exhibit K) She was available on the hearing date for cross-examination, but the DOE chose not to cross-examine her. (T. 15) Ms. REDACTED complete testimony, contained in her affidavit, is considered fully incorporated into the Findings of Fact and Decision, although not fully contained herein. Ms. REDACTED testified that all REDACTED teachers are “New York State certified for the population with whom they work.” She added that special education students are “guaranteed a New York State certified special education teacher.” Ms. REDACTED testified that STUDENT’s evaluation at REDACTED was conducted under her direction and control. (Exhibits G and I) She described the evaluation process, the testing methods, the scoring process, and STUDENT’s scores. She then explained the factors and tools used to “estimate the number of hours it will take the student to acquire the skills that he or she is missing at the time of the evaluation so that ultimately he or she can independently complete schoolwork and homework, access the curriculum and reach his or her individual academic goals.” Based on STUDENT’s evaluation, REDACTED recommended that he requires a total of 595 hours of tutoring to teach him the academic skills he is missing. This was broken down into 525 hours of a verbal program (60 hours Core Reading program, 270 hours Splinter Skills, 135 hours Vocabulary/Word Attack/Spelling, and 60 hours writing) plus 70 hours to address 14 deficient math skills. (Exhibit

G) Ms. REDACTED provided further specific details for each component of the tutoring program recommended.

Ms. REDACTED provided a comprehensive description of the work STUDENT has done at REDACTED, the skills addressed, and the progress he has demonstrated. (Exhibit H) She stated that the cost of the one-on-one tutoring services for STUDENT is $97 per hour. She also confirmed the payments made by the Parent. (Exhibits I, L) Ms. REDACTED explained that, between July 13, 2021, and May 31, 2022, STUDENT received 186 of the recommended 595 tutoring hours. (Exhibits G, H) It is her recommendation that “STUDENT requires the remaining 409 hours of the 595 hours recommended to acquire the fundamental skills he was missing at the time of his June 2021 academic evaluation.”

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The central purpose of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C.

§§ 1400-1482) is to ensure that students with disabilities have available to them a Free Appropriate Public Education (20 U.S.C. § 1400[d][1][A]; see Schaffer v. Weast, 126 S. Ct. 528, 531 [2005]; Bd. of Educ. v. Rowley, 458 U.S. 176, 179-81, 200-01 [1982]; Frank G. v. Bd. of Educ., 459 F.3d 356, 371 [2d Cir. 2006]). A FAPE includes special education and related services designed to meet the student's unique needs, provided in conformity with a written IEP (20 U.S.C. § 1401[9][D]; 34 C.F.R. § 300.17[d]; see 20 U.S.C. § 1414[d]; 34 C.F.R. § 300.320). A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir.

2005]).

A board of education may be required to reimburse parents for their expenditures for private educational services, obtained for a student by his or her parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim (Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359 [1985]; Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). In Burlington, the Court found that Congress intended retroactive reimbursement to parents, by school officials, as an available remedy in a proper case under the IDEA (id.). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along, and would have borne in the first instance had it developed a proper IEP" (Burlington, at 370-71; see Application of the Bd. of Educ., Appeal No. 05-073).

The DOE appeared for the hearing, but did not participate in any way. The DOE took no position with regard to the Parent’s claims. The DOE’s failure to present or defend its actions in regard to STUDENT for the 2019-2020 and 2020-2021 school years, clearly supports the Parent’s assertion that the DOE failed to offer a FAPE to STUDENT for the 2019-2020 and 2020-2021 school years. In addition, the Parent’s thorough and unrebutted testimony further supported this finding. (Exhibit L) Therefore, the first prong of the analysis, under the Burlington and Carter decisions, supports the Parents’ case.

The Parent has the burden of establishing the appropriateness of the program they have provided to STUDENT (Application of a Child with a Disability, Appeal No. 95-57; Application of a Child with a Disability, Appeal No. 02-093) In order to meet that burden, they must demonstrate that the services provided offer an educational program which meets the student’s special education needs. (Burlington, 471 U.S. at 370; Application of a Child with a Disability, Appeal No. 94-29; Frank G. v. Board of Education of Hyde Park, 459 F. 3d at 363; Gagliardo v. Arlington Cent. Sch. Dist., 489 F. 3d 105 [2d Cir. 2007]) The standard used to measure the appropriateness of the parent’s placement is “not perfection.” (M.S. ex rel S.S. v. Bd. of Ed., 231 F.3d 96 [2d Cir. 2000]) “The issue turns on whether a placement - public or private- is reasonably calculated to enable the child to receive educational benefits.” (Gagliardo, 489 F. 3d at 112) A parent’s failure to select a program approved by the state in favor of an unapproved option is not itself a bar to reimbursement. (Carter, 510 U.S. 7 [1993])

I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions. Those who are familiar with STUDENT, Ms. REDACTED and REDACTED, strongly agree that the program STUDENT was provided by REDACTED was necessary and appropriate. The witnesses provided persuasive and unrebutted testimony, and supporting documentary evidence to this effect. The testimony provided by the witnesses strongly affirms the appropriateness of the program and demonstrates that it addressed STUDENT’s individual needs and was reasonably calculated to allow him to make meaningful progress. In fact, he made meaningful progress through his participation in the program.

It must be emphasized that the DOE did not raise any challenge to the appropriateness of STUDENT’s program at REDACTED or to the Parent’s request for compensatory tutoring hours. There has been no aspect of the Parent’s hearing request, the witness testimony, the documentary evidence, or the relief sought, with which the DOE disagreed. The entirety of the Parent’s case for the 2019-2020 and 2020-2021 school years is undisputed. I find that the Parent has prevailed with respect to the second criterion for reimbursement under the Burlington and Carter decisions.

The final criterion for an award of funding or reimbursement is whether the Parent’s claim is supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; M. C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required"]). Such considerations "include the parties' compliance or noncompliance with state and federal regulations pending review, the reasonableness of the parties' positions, and like matters" (Wolfe v. Taconic Hills Cent. Sch.

Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001], citing Town of Burlington v. Dep't of Educ., 736 F.2d at 773, 801-02 [1st Cir. 1984], aff'd, 471 U.S. 359 [1985]). With respect to equitable considerations, a parent may be denied reimbursement upon a finding of a failure to cooperate with the CSE in the development of an IEP or if the parent's conduct precluded the CSE's ability to develop an appropriate IEP (Warren G. v. Cumberland Co. Sch. Dist., 190 F.3d 80, 86 [3rd Cir. 1999]; see Application of the Bd. of Educ., Appeal No. 04-102; Application of the Bd. of Educ., Appeal No. 04-026). In the absence of evidence demonstrating that a parent failed to cooperate in the development of the IEP, or otherwise engaged in conduct that precluded the development of an appropriate IEP, or failed to give proper notice, equitable considerations generally support a claim of reimbursement (Application of a Child with a Disability, Appeal No. 04-049).

There were no assertions made by the DOE with regard to any equitable consideration that would preclude an order in favor of the Parent. The record clearly established the Parent’s continuous cooperation with the DOE. There is absolutely no basis on which to reduce or modify the remedy for the Parent.

ORDER

• • The DOE failed to offer a FAPE to STUDENT for the 2019-2020 and 2020-2021 school years;
• • The Parent’s unilateral program of tutoring services for STUDENT at REDACTED was appropriate and, based the DOE’s failure to provide a FAPE in the 2019-2020 and 2020-2021 school years, should continue as compensatory services;
• • There are no equitable considerations which would reduce or bar an award in favor of the Parent; and, therefore,
• • The DOE shall fund the 595 hours of one-one-one tutoring services recommended by REDACTED;
• • The DOE shall reimburse the Parent for the cost of tutoring services paid to REDACTED Learning Center in the amount of $16,345 for the period from June 28, 2021, through June 3, 2022. Payment shall be made immediately, since the Parent has already submitted proof of payment to the DOE. (Exhibit I);
• • The DOE shall reimburse the Parent for any additional payments made to REDACTED subsequent to June 3, 2022. Payment shall be made immediately upon receipt of proof of the provision of services and proof of payment;
• • The DOE shall fund the remaining hours of the 595 hours of tutoring services recommended by REDACTED, which have not yet been provided and/or have not yet been paid for, by direct payment to REDACTED. Payment shall be made immediately upon receipt of proof of the provision of services and an invoice; and,
• • The DOE shall directly fund 74 sessions of speech and language therapy for STUDENT, representing missed sessions in the 2020-2021 school year, as reflected in the parties’ Partial Resolution Agreement. (Exhibit J) The DOE shall pay for these services directly to a provider of the Parent’s choice, not limited to those providers on the DOE’s list of providers, and at an enhanced rate. Payment shall be made immediately upon receipt of proof of the provision of services and an invoice from the provider.

Dated: August 2, 2022 Amy Lynne Itzla, Esq.

Amy Lynne Itzla, Esq.

Arbitrator

PLEASE TAKE NOTICE

Within 30 days of the receipt of this decision, the parent and/or Board of Education has a right to appeal the decision to the State Review Officer of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. Failure to file the notice of intention to seek review is a waiver of the right to appeal this decision.

Directions and forms for filing an appeal are included with this decision. Directions and forms can also be found on the Office of State Review website: www.sro.nysed.gov/ appeals.htm.

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 14, 2022

redacted

DOCUMENTATION ENTERED INTO THE RECORD

Parent’s Exhibits

A. Due Process Complaint, 1/17/22, 13 pages B. IEP, 1/27/20, 18 pages

C. IEP, 1/26/21, 16 pages

1 The Parent had also requested in its Due Process Complaint that the DOE “conduct a full battery of evaluations, including but not limited to a Social History Update, Classroom Observation, Functional Behavioral Assessment, Occupational Therapy Evaluation, Speech Language Evaluation, and Neuropsychological Evaluation and an Assistive Technology Evaluation to determine the current functioning level of the Student and his current needs.” (Exhibit A) That portion of the remedy requested was addressed in the document referred to as the parties’ “Partial Resolution Agreement” and was not raised during the hearing. (Exhibit J)

• • Teacher Report, 2/12/21, 5 pages
• • Comprehension Data-Driven Assessment, 3/2/21, 5 pages
• • IEP, 3/4/21, 20 pages
• • REDACTED Learning Center Evaluation Report, 2/28/22, 5 pages
• • REDACTED Learning Center Progress Report, 6/3/22, 4 pages
• • Financial Documentation regarding REDACTED Learning Center, various dates, 9 pages
• • Partial Resolution Agreement and Related Correspondence with redacted, various dates, 14 pages
• • Affidavit of REDACTED, 6/3/22, 14 pages
• • Affidavit of REDACTED, 6/1/22, 22 pages