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CASE NUMBER: 571767 - NYC: 225666
FINDINGS OF FACT AND DECISION
Case Number: 225666
Student’s Name: STUDENT
Service District: DISTRICT
Date of Filing: April 4, 2022
Hearing Requested by: PARENT
Date of Hearing: July 8, 2022, July 11, 2022 & July 22, 2022
Date of Decision: July 29, 2022
Impartial Hearing Officer: Catherine Ferrara, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 8, 2022
For the Student:
PARENT, pro se
For the Department of Education:
REPRESENTATIVE FOR DISTRICT
SCHOOL SOCIAL WORKER
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 11, 2022
For the Student:
PARENT, pro se
DEVELOPMENTAL PSYCHOLOGIST
FACT WITNESS
For the Department of Education:
REPRESENTATIVE FOR DISTRICT
NAMES AND TITLES OF PERSONS WHO APPEARED JULY 22, 2022
For the Student:
PARENT, pro se
For the Department of Education:
REPRESENTATIVE FOR DISTRICT
INTRODUCTION
This matter concerns an REDACTED classified as a student (“Student”) with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s classification is not in dispute.
PROCEDURAL HISTORY AND BACKGROUND
On or about April 4, 2022, a due process complaint (“DPC”) was filed against the New York City Department of Education (the “District” or “DOE”) by Student’s parent (“Mother” or “Parent”), proceeding pro se, under Case No. 225666, pursuant to the IDEA, 20 U.S.C. § 1415(f), and Section 4404(1) of the New York State Education Law.
In the DPC, Parent alleges that the District denied Student a free and appropriate public education (“FAPE”) for the 2021-2022 school year by (i) failing to provide appropriate reading services necessary to address Student’s dyslexia, which resulted in Parent having to seek, and pay out-of-pocket for, a certified outside tutoring program (the “Tutoring Program”), (ii) discontinuing Student’s one-to-one (“1:1”) paraprofessional as well as failing to provide comprehensive data to the Parent in support of this decision, and (iii) removing one of Student’s testing accommodations[1] (P-A).[2]
Parent requests (i) hard copies of all data on which the DOE based its decision to discontinue Student’s 1:1 paraprofessional (which the District confirmed it has since provided), (ii) that Student continue to receive the support of a 1:1 paraprofessional and that this be included in Student’s individualized education program (“IEP”), (iii) a ruling that the compensatory services obtained for Student were appropriate, warranting reimbursement of all incurred expenses, as well as future expenses, for outside tutoring services in reading, including transportation costs to and from the Tutoring Program location, and (iv) an evaluation “for promotional criteria through alternate assessments” as well as an “assistive technology evaluation” (P-A).
On May 4, 2022, the resolution period concluded without the parties reaching an agreement. However, on or about May 9, 2022, the parties entered into a partial resolution agreement (the “Agreement”) (P-D; D-5). The fully executed Agreement indicates that, “upon signed resolution,” the “DOE will offer an independent Functional Behavior Assessment (FBA) and[,] if warranted[,] a Behavior Intervention Plan (BIP)[;] DOE will offer an Assistive Technology Evaluation[;] [and] DOE will offer a Social History Update done by [a] School Psychologist” (P-D; D-5). The Agreement further indicates that the “DOE will convene an IEP meeting when all evaluations/reports have been completed and given to the [Committee on Special Education (“CSE”)] [w]ithin 60 calendar days of evaluations completed” (P-D; D-5).
On June 13, 2022, I was appointed the impartial hearing officer (“IHO”) to determine the claims in the DPC and to conduct an impartial hearing. The Parties first appeared before me on June 21, 2022 for a Pre-Hearing Conference (“PHC”). At that time, Parent clarified that the evaluations which remained to be conducted pursuant to the Agreement included the independent FBA, as well as a BIP if warranted by the FBA (see PHC Tr. 21-23). A hearing on the merits was held over the course of three days, on July 8, 2022, July 11, 2022 and July 22, 2022.
On July 8, 2022, I advised Parent that federal and state laws and regulations do not confer jurisdiction on impartial hearing officers to enforce resolution agreements[3] and noted that, while such agreements may be admissible as relevant to the facts underlying a parties’ dispute in a due process proceeding, I lack the authority to enforce the Agreement in this case (see July 8, 2022 Transcript (“7/8/2022 Tr.”) at 61). I explained that, should Parent wish to pursue further action based on the Agreement, she would need to do so via the judicial system (id.).[4] Thereafter, the DOE presented its case (see generally 7/8/2022 Tr.). One (1) witness (the “School Social Worker”) provided testimony and 14 exhibits were offered by the DOE, all of which were entered into evidence (id. 63-65).
On July 11, 2022, Parent presented testimony from three (3) witnesses, including herself, Student’s developmental psychologist (the “Developmental Psychologist”) and an individual who attended an IEP meeting with Parent held on March 18, 2022 (the “Fact Witness”), as well as 25 exhibits, all of which were admitted into evidence (see generally July 11, 2022 Transcript (“7/11/2022 Tr.”)). Closing arguments were heard on July 22, 2022 (see generally July 22, 2022 Transcript (“7/22/2022 Tr.”)) and the record closed on July 28, 2022.
JURISDICTION
A decision in this matter is being rendered, pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., as well as the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP. 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable … [that student] to make progress appropriate in light of the …[student’s] circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). However, the “IDEA does not itself articulate any specific level of educational benefit that must be provided through an IEP.” Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); Rowley, 458 U.S. at 189.
The IDEA ensures an “appropriate” education, “not one that provides everything that might be thought desirable by loving parents.” Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 (2d Cir. 1989). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and … affords the student an opportunity greater than mere ‘trivial advancement.’” Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130. The IEP must be “reasonably calculated to provide some ‘meaningful benefit.’” Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”); Rowley, 458 U.S. at 192.
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion. Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454.
Under the Education Law, school districts have the burden of proof in IDEA due process hearings, including the burden of persuasion and the burden of production, except where a parent seeks tuition reimbursement for a unilateral placement and has the burden of persuasion and the burden of production as to the appropriateness of that placement. Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014), R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).
FINDINGS OF FACT AND DECISION
Following a review of the record before me, I make the following findings of fact: Student is diagnosed with Attention Deficit Hyperactivity Disorder (combined type), Global Developmental Delay and Reading Disorder/Dyslexia (P-T; P-U; P-X). Student was first assessed by the DOE when he was in pre-kindergarten for the purposes of evaluating his needs for transition to kindergarten in a community school (7/8/2022 Tr. 68-69). He entered his current school (the “Attending School”) in 2018.
On October 27, 2020, Student was evaluated by the Developmental Psychologist who confirmed he met the criteria for a dyslexia diagnosis (P-T). At that time, he was a second-grade student at the Attending School in an integrated co-teaching (“ICT”) class for ELA, Math, Science and Social Studies, and was mandated to receive occupational therapy (“OT”), speech and language therapy (“SLT”) and weekly counseling (P-E; P-T; D-4). The Developmental Psychologist determined that “daily reading instruction” should be added to his IEP and should be “intensive,” as Student was assessed to “in effect [be] a ‘non-reader’” (P-T). The Developmental Psychologist further specified that Student “must have daily instruction with an evidence-based reading program (i.e., the Wilson Approach) to acquire basic, fundamental reading skills” (P-T). Parent shared this evaluation with the CSE when she received it in November 2020 and testified that, despite providing the District with this evaluation and “ask[ing] the school for help[,] … [t]hey did nothing to help” (7/11/2022 Tr. 120).
An IEP meeting was held on March 19, 2021 during which Parent expressed Student would benefit greatly from a 1:1 certified reading specialist and indicated she was taking him for an independent evaluation (P-E; D-4). No details regarding specific reading instruction for Student appeared in the resulting IEP, but Student was moved to a smaller class, a 12:1+1 setting, for ELA (P-E; D-4).
On May 19, 2021, the Tutoring Program evaluated Student. Student began the Wilson Reading System thereafter in May 2021 working with a Tutoring Program Certified Wilson Reading Specialist (P-A; P-X), consistent with the recommendation made by the Developmental Psychologist that he receive “instruction with an evidence-based reading program (i.e. – the Wilson Approach)” (P-T).
By letter to Parent dated October 29, 2021 (the “Letter”), the DOE indicated Student would receive the following Special Education Recovery Services[5] intended to address needs arising from learning disruption caused by the COVID pandemic: sixteen (16) hours of small group instruction, eight (8) hours of group OT, eight (8) hours of group SLT and eight (8) hours of group counseling (D-9). Although the Letter specifies that “Special Education Recovery Services are specialized instruction and related services targeted to your child’s individual needs and IEP goals[,]” there is nothing included in the Letter indicating Student was being offered, or would receive, any special reading instruction (D-9).
During Student’s third grade year, an IEP meeting was held on March 18, 2022 at which time ICT Math, ICT Social Studies, ICT Science and 12:1+1 ELA was recommended along with counseling, OT and SLT (D-2; P-F). However, Student’s “promotion criteria” were modified for the “current” year and “next” year and the following was noted: “[Student]’s disability severely impacts his rate of learning. His rate of progress is extremely slow. Due to [Student]’s difficulty with retaining/recalling information and material learned in class, he requires modified promotion criteria in ELA. He cannot be held to standard promotional criteria this year because his disability impacts hi[m.] [Student] is still performing over two grade levels below in ELA” (D-2) (emphasis added). The resulting IEP also notes that Student “see[s] a dyslexia coach during the week” and that the Mother “requested that S.P.I.R.E.[6] be implemented at least three times a week for [Student]” by the Attending School (D-2).
Initially, Student’s Tutoring Program sessions were for one (1.00) hour at a rate of $90 per hour for a total of nine (9) hours over the May 27, 2021 to September 25, 2021 time period (P-C). Thereafter, Student attended one and a-half (1.50) hour sessions at a rate of $135 per session for a total of eight (8) sessions – equaling 12 hours – over the October 9, 2021 to January 15, 2022 time period (P-C). Due to “Saturday School” which began mid-January 2022, Student returned to one (1.00) hour sessions at a rate of $90 per hour for a total of seven (7) hours over the January 22, 2022 to March 19, 2022 time period (P-C). When Saturday School ended in April, sessions increased back to one and a-half hours (1.50) at a rate of $135 per session for a total of seven and a-half (7.50) hours over the April 9, 2022 to May 13, 2022 time period (P-C).[7] Parent produced receipts from the Tutoring Program for May 2021 through May 2022 which total $3,200.00 (P-A; P-B). Parent also submitted information regarding travel expenses to and from the Tutoring Program, although she did not produce actual receipts (P-C).
Failure to Provide a FAPE
Parent alleges that by failing to provide Student with the reading instruction necessary to properly address his dyslexia, by discontinuing his 1:1 paraprofessional (the “Para”), and by removing[8] one of his testing accommodations, the DOE denied him a FAPE for the 2021-2022 school year (P-A). Each of these allegations is discussed below.
Student’s Reading Needs To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable … [that student] to make progress appropriate in light of the …[student’s] circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017) (emphasis added). Yet, the DOE offered no explanation as to how the CSE’s program and placement recommendations were specifically tailored to address Student’s reading deficiencies. In fact, when the District’s only witness was asked, “Do you have any information about the reading programs or curriculum that the school provides for [Student],” the School Social Worker testified, “No, not particularly” (7/11/2022 Tr. 101).
Instead, DOE argued that Student’s grades in the 80s and 90s and a “68” in ELA are enough to show he is progressing and to conclude that he must, therefore, have been provided with a FAPE (7/8/2022 Tr. 11, D-12, see generally 7/22/2022 Tr.). However, without more information regarding how the DOE specifically addressed Student’s reading deficits,[9] the record fails to support this conclusion. In fact, the majority of the minimal information in the record regarding use of any reading methodology was not produced by the District who bears the burden of proof, but by Parent (P-R; P-Q). The Mother researched the S.P.I.R.E. program she was told was being utilized by the Attending School and provided testimony, uncontested by any DOE witness, that based on what she had learned about S.P.I.R.E., it did not appear the DOE was properly implementing the program (7/11/2022 Tr. 121, 131, 207-209; P-P; P-Q; see also P-J).
Additionally, the Fact Witness testified that during the March 18, 2022 IEP meeting she attended, one of the teachers present indicated that Student receives only 10 to 15 minutes of S.P.I.R.E. three days a week during ELA, and the Mother testified similarly (7/11/2022 Tr. 175-176, 207-209). There is nothing in the record to contradict the Fact Witness’s or Mother’s testimony.[10] This is inconsistent with the Developmental Psychologist’s recommendation that Student be provided with daily reading instruction and that it be “integrated into his full curriculum via a multi-sensory approach” (P-T). Further, although Student’s 3/19/2021 IEP and 3/18/2022 IEP contain some reading-related goals, no testimony was proffered by the DOE about any of them (D-2; D-4; P-E; P-F). “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” (Endrew F., 137 S. Ct. at 1001) and, here, neither IEP appears to be reasonably calculated to enable student to progress in reading.
Accordingly, I find that the District has failed to meet its burden to prove it provided Student with a FAPE for the 2021-2022 school year.
Student’s 1:1 Paraprofessional
Parent alleges that the District’s removal of Student’s Para was not justified, and testified that the District failed to provide Parent with any comprehensive data supporting its decision to discontinue this service (7/8/2022 Tr. 79-108; 7/11/2022 Tr. 187; see also 7/11/2022 Tr. 170). More specifically, Parent indicated that instead of providing her with a complete, readily understandable explanation of the content and meaning of the data that the District relied on to conclude this was a justified change, she was provided only with handwritten tally marks (7/8/2022 Tr. 78-87; P-K). Looking at Parent’s Exhibit K which includes copies of the data provided to her by the Attending School, and to which the District had no objection, tally marks are present, as are some unexplained “X’s” and slash marks drawn on certain pages (P-K). Additionally, some of the handwritten “total” amounts for certain columns in the charts displayed do not correspond with the number of tally lines drawn above them within that same column when added together (P-K). For example, data provided for “11/1 to 11/5” under the “Problem Behavior” section for “Thur” (Thursday) shows one tally mark indicated in the “8:10 ELA” row and no additional tally marks in the column, but a total of “6” is listed for that day (P-K).
The School Social Worker explained, generally, that the Para was discontinued because Student’s “need for redirection ranged from usually one time to three times maximum during a period … and … would be covered by … standard classroom behavior strategies” (7/8/2022 Tr. 78). However, in addition to the discrepancies noted above, the frequency charts provided by the District to the Parent for dates spanning from “9/20” through “12/10” (presumably of 2021), do not specify any “target behavior” or indicate what behaviors were supposed to have actually been counted and included in the “Problem Behavior(s)” tallied in those charts (P-K).[11]
Moreover, the School Social Worker testified that the very determination as to whether the Student requires a 1:1 paraprofessional is based on whether he engages in these “very specific” behaviors which are based on the results of an FBA (7/8/2022 Tr. 78). As evidenced by the Agreement, the DOE agreed to a new FBA of the Student to be conducted by an independent provider, which may yield valuable behavioral information for Student going forward (P-D; D-5). Coupled with the fact that Student’s listed “Management Needs” are similar in his 3/19/2021 and 3/18/2022 IEPs (D-2; D-4), and that the Developmental Psychologist’s follow-up report dated July 1, 2022 recommends he “keep his 1:1 para for an additional year” (P-Y),[12] I find Student’s Para should be reinstated until such time that the agreed upon FBA is completed and the CSE reconvenes to assess the necessity of the Para going forward, consistent with the FBA results and recommendations.
Student’s Testing Accommodations
According to the DPC, the testing accommodation at issue involves Student testing in a separate location (P-A). Student’s 3/19/2021 IEP states, “Separate Location/Room” for “All assessments” and provides the following “implementation recommendation: “Pulled out to a separate location to minimize distractions” (P-E; D-4). Student’s 3/18/2022 IEP states, “Separate Location/Room” for “All assessments longer than 15 minutes” and provides the following implementation recommendation: “Small group (no more than 12 students) with limited distractions inside or outside the classroom” (P-F; D-2) (emphasis added). This “Separate Location/Room” testing accommodation was not removed, but it was changed. When asked whether Student should receive a testing accommodation that requires removal from his classroom setting for every exam he takes or for every exam that is longer than 15 minutes, the Developmental Psychologist opined that “15 minutes probably is [as] good of a guideline as there is” (7/11/2022 Tr. 159).[13] Accordingly, I find that the modification of this testing accommodation does not constitute a FAPE violation.
Compensatory Education
Based on the DOE’s failure to establish that it offered and provided Student with services necessary to address his reading deficits for the 2021-2022 school year, the remainder of this decision will be focused on what remedies are appropriate.
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008)). An award of compensatory services may be warranted if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
A compensatory education award is a flexible equitable remedy that is often crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and a compensatory education award is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). However, the Second Circuit has affirmed the flexible approach adopted by Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) and declined to specify any particular approach: “[T]he Second Circuit has not articulated a test for determining how such awards are calculated. See, e.g., P. v. Newington, 2008 WL 4509089 (affirming compensatory education as appropriate without discussion of how award was calculated); Student X v. New York City Dept. of Educ., 51 IDELR 122 (E.D.N.Y. 2008).
The Tutoring Program at issue in this case is an afterschool program that provides instruction to Student utilizing the Wilson Reading System, one of the specific interventions identified by the Developmental Psychologist and by Student’s medical doctor, a developmental-behavioral pediatrician (the “Developmental-Behavioral Pediatrician”), as necessary to help remedy Student’s reading deficiencies (P-T; P-U; P-Y). Parent seeks reimbursement for the services already provided by the Tutoring Program, as well as additional services to compensate for the denial of a FAPE for the 2021-2022 school year. The Developmental Psychologist testified that it would be “reasonable” for Student to receive one hour of reading instruction in school[14] every day, Monday through Friday, to help remediate his reading deficits (7/11/2022 Tr. 158) and advised that Student “must be instructed with an evidence-based reading program daily for a full period” (P-Y).
It is the DOE’s burden to prove that the compensatory education services provided by the Tutoring Program are improper and that the compensatory education plan proposed by Parent is inappropriate.[15] The District did not attempt to meet this burden by challenging, for example, the effectiveness of the Tutoring Program,[16] the methods employed by the Tutoring Program, or the qualifications of those providing these services on behalf of the Tutoring Program. Rather, the District attempted to meet this burden by focusing on testimony from Parent’s Developmental Psychologist which indicates that S.P.I.R.E., the reading methodology used in the Attending School, and Wilson, the reading methodology utilized by the Tutoring Program, should be consistent, so as not to confuse Student (7/11/2022 Tr. 141). However, merely highlighting this inconsistency is not enough to establish the compensatory education is unsuitable when the record is devoid of any evidence from the District detailing the specific reading instruction this Student actually receives in school including, for example, how it is delivered to him, how often it is delivered to him, through what means it is delivered to him or how progress is determined, as well as whether that determination relies on the principles outlined in the methodology itself and, if so, to what extent.[17] Furthermore, the DOE did not offer any alternative compensatory education proposal or any alternative provider for compensatory services. There are also no equitable considerations weighing against Parent.
Based on the record, I find that Student is entitled to compensatory education. The Developmental Psychologist and Developmental-Behavioral Pediatrician provide a strong evidentiary basis for this conclusion and both professionals recommend daily reading intervention using an evidence-based reading program such as Wilson or Orton-Gillingham (see generally 7/11/2022 127-159; P-T; P-U; P-Y). As noted above, the Developmental Psychologist testified that, in school, Student should be receiving an hour a day of specialized reading instruction and recommended at least a full class period (7/11/2022 Tr. 120, 139). Since there were approximately 180 school days in the 2021-2022 school year in New York City,[18] Student should, therefore, have received approximately 180 hours of specialized reading instruction in school during the 2021-2022 school year. The receipts submitted by Parent show 35.50 hours of tutoring services were provided by the Tutoring Program from May 2021 through May 2022, totaling $3,200.00 (P-A; P-B). Subtracting the six (6) hours Student received prior to the start of the 2021-2022 school year requires that $270.00 for the “May & June 2021 sessions” and $270.00 for the “July & August 2021 sessions” be deducted from the $3,200.00 total amount. I find that Parent should, therefore, be reimbursed $2,660.00 in addition to amounts paid by Parent to the Tutoring Program for any services rendered in June 2022. Further, subtracting the remaining 29.50[19] hours from 180 hours equals 150.50 hours. Accordingly, Student is granted 150.50 hours of 1:1 tutoring as compensatory education to be provided by an appropriately qualified instructor, at a reasonable hourly rate commensurate with prevailing market rates, and shall be without an expiration date.
The record further supports a finding that Student be provided with a placement which utilizes an evidence-based reading program such as the Orton- Gillingham or Wilson methodology, daily for at least a full period, either 1:1 or in a small group, to address his dyslexia.
OTHER RELIEF SOUGHT
Transportation In addition to compensatory education, Parent sought additional relief in the form of transportation to and from the Tutoring Program (P-A). The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’... even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.” Donald B. by Christine B. v. Bd. of Sch. Commissioners of Mobile Cty., Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted). New York law defines special education as “specially designed instruction … and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2); 8 NYCRR § 200.1(ww).
While the DPC seeks funding for Student’s transportation to and from the Tutoring Program, the hearing record contains little evidence supporting the need for transportation services. However, as I am finding the Tutoring Program is appropriate for Student, if Parent accrued any costs transporting Student to or from the Program location during the 2021-2022 school year, the District shall be required to reimburse those costs to Parent upon receipt of proof of payment of same.
Other
I have reviewed Parent’s other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority to order relief. Accordingly, any relief not specifically discussed herein is denied.
ORDER
Based on the foregoing, IT IS HEREBY,
ORDERED, that the District shall reimburse Parent for the compensatory services provided by the Tutoring Program for September 2021 through May 2022, to be paid directly to Parent within 30 days, in the amount of $2,660.00; and it is further
ORDERED, that the District shall reimburse Parent for the compensatory services provided by the Tutoring Program for June 2022, to be paid directly to Parent within 30 days of receipt of an invoice by the District for that month; and it is further
ORDERED, that to the extent Parent accrued any costs transporting Student to and from the Tutoring Program during the 2021-2022 school year, the District shall reimburse those costs within 30 days of the District’s receipt of proof of payment in the form of receipts from Parent; and it is further
ORDERED, that the District shall fund the following compensatory education for Student, with payment to be made at the provider’s market rate within 30 days of the District’s receipt of the respective provider’s invoice: a bank of 150.50 hours of 1:1 tutoring, to be furnished by an appropriately qualified instructor of Parent’s choosing; and it is further
ORDERED, that the District shall provide appropriate transportation services and/or funding for Student and Parent to commute to and from any provider of the compensatory education ordered herein; and it is further
ORDERED, that the Committee on Special Education is directed to reconvene within 30 days of the date of this decision to develop an appropriate placement for Student which utilizes an evidence-based reading program daily for at least a full class period, either 1:1 or in a small group, such as the Orton- Gillingham or Wilson methodology, to address the Student’s dyslexia; and it is further
ORDERED, that the reading program provided by the District to Student must be consistent with that utilized by the provider of the compensatory education ordered herein; and it is further
ORDERED, that the District shall reinstate a 1:1 paraprofessional for Student until such time that the agreed upon FBA is completed and the CSE reconvenes within 60 days thereafter to reassess the necessity of a 1:1 paraprofessional for Student, consistent with the FBA results and recommendations.
SO ORDERED.
DATED: July 29, 2022
/s/ Catherine Ferrara
Catherine Ferrara, 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 party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – ADMITTED EXHIBITS
DISTRICT’S EVIDENCE
Exhibit
Title
Date
Pages
1
DPC
4/4/2022
5
2
IEP 3/18/2022 40 3 IEP attendance page 3/18/2022
1
4
IEP
3/19/2021
45
5
Resolution Agreement
4/4/2022
2
6
BIP
1/18/2022
2
7
BIP
11/19/2021
2
8
AT attendance page
5/16/2022
1
9
DOE special education recovery services
10/29/2021
4
10
Attendance for special education recovery services
6/29/2022
3
11
Attendance for special education recovery services
6/27/2022
2
12
Report Card
2021-2022 school year
1
13
Spring progress report
Spring 2022
1
14
Winter progress report
Winter 2021
1
PARENTS’ EVIDENCE
Exhibit
Title
Date
Pages
A Impartial Hearing Request 4/1/2022 001-050
B Payments to REDACTED for March, April & May of 2022 5/26/2022 001-002
C Breakdown of payments for reimbursement 7/1/2022 001-003
D Due Process Partial Resolution Agreement 5/5/2022 001-002
E Current IEP used for 2021-2022 school year-3rd grade 4/5/2021 001-022
F Proposed IEP for 2022-2023 school year – 4th grade 3/28/2022 001-029
G 3rd Grade Report Card 6/27/2022 001
H Fall & Winter ELA Progress Report 2/1/2022 001-002
I Email correspondence with Principal and Superintendent 3/18/2022 001
J Email correspondence to Superintendent about Special Ed Teacher 2/4/2022 001-002
K Email about BIP Data & data 6/23/2022 001-042
L Email about concerns 3/3/2022 001-003
M Email about 1:1 Paraprofessional to Principal 1/27/2022 001-002
N PWN request for social history, AT & FBA 6/22/2022 001-006
O BIP Reports 9/20/21-1/14/22 email 4/29/2022 001-002
P Mayor & Chancellor Press Release 5/12/2022 001-007
Q SPIRE Professional Development for implementation and student materials list for explicit instruction 6/29/2022 001-023
R Email with Teacher about SPIRE implementation 6/26/2022 001-002
S Email about FBA information 6/30/2022 001-002
T Dyslexia Diagnosis letter – REDACTED 10/27/2020 001-002
U REDACTED’s Report – Developmental Behavioral Pediatrics 4/11/2021 001-002
V Letter for proof of neurology care 6/27/2022 001
W Report from Neurologist 2/20/2020 001
X Report from REDACTED 7/1/2022 001-002
Y Report from REDACTED 7/1/2022 001-003 APPENDIX B – PERSONALLY IDENTIFIABLE INFORMATION Redacted Information
Term Used in FOFD
REDACTED
Student
REDACTED
Mother or Parent
REDACTED
District or DOE
REDACTED
DOE Attorney/Representative
REDACTED
School Social Worker
REDACTED
Attending School
REDACTED
Tutoring Program
REDACTED
Developmental Psychologist
REDACTED
Fact Witness
REDACTED
Developmental-Behavioral Pediatrician
Footnotes
[1] This accommodation involves testing in a separate location in order to minimize distractions.
[2] Parent’s exhibits are referred to herein as “P-[letter]” and the District’s exhibits are referred to herein as “D-[number].”
[3] To the extent that Parent seeks enforcement of, or argues that the District breached, the Agreement, Federal and State law and regulations do not confer jurisdiction to review or enforce settlement agreements on IHOs, whose jurisdiction is limited to matters relating to the identification, evaluation, or placement of students with disabilities, or the provision of a FAPE to such students (20 U.S.C. § 1415[b][6][A]; Educ. Law § 4404[1][a]; 34 CFR 300.503[a], 300.507[a][1]; 8 NYCRR 200.5[i][1]; see Application of the Bd. of Educ., Appeal No. 07-043).
[4] See 34 CFR 300.152[c][3]; SJB v. New York City Dept. of Educ., 2004 WL 1586500, at *4-*5 (S.D.N.Y. July 14, 2004).
[5] Note, Parent testified that any missed sessions (see D-10; D-11) were the result of Student either being exposed to and/or contracting COVID (7/11/2022 Tr. 192-193, 199-205).
[6] The Developmental Psychologist testified that S.P.I.R.E. is based on the Orton-Gillingham reading methodology (7/11/2022 Tr. 131).
[7] As noted in the exhibit itself, at the time Parent created Exhibit C, Parent had not yet received an invoice for June 2022 (P-C).
[8] Parent refers to this as a “removal” of a testing accommodation but, as evidenced throughout the record, is referencing an alteration made by the DOE to one of Student’s testing accommodations.
[9] The DOE acknowledges that Student’s reading deficits are a primary concern for Student, as further evidenced by Student’s placement in a 12:1+1 class for ELA (D-2; D-4).
[10] Parent also brought into question the accuracy of some of the information contained in the “Reading” category of the “Present Levels of Performance and Individual Needs” section of Student’s 3/18/2022 IEP which contains a statement regarding a child other than Student (P-F; D-2). When asked about this during the hearing, the School Social Worker testified: “[M]y guess would be that it’s a student who was also having the IEP meeting around the same time with the same class and the same service” (7/8/2022 Tr. 76).
[11] In comparison, charts dated “1/3/22” to “6/13” indicate the following: “Target Behavior: Off Task Behaviors (e.g., out of seat, fidgeting/playing with nearby objects, self-directed behaviors like singing)” (P-K).
[12] The Developmental Psychologist indicated that this recommendation is based on the fact that “[Student]’s ADHD symptoms are exacerbated by his reading deficiencies. As seen in []his testing, when [Student] is confronted with grade-level reading tasks, he will become emotional (sad) and eventually shut-down” (P-Y). Referencing his follow-up visit with Student as recent as July 1, 2022 (the resulting report of which was entered into the record with no objection from the DOE), the Developmental Psychologist also testified: “[I]f I didn’t prompt him and redirect him, I would lose him to … getting distracted by extraneous stimuli in the office …. So, to keep him on task, he required a lot of prompts from me. So, certainly, I can see how the one on one [Para] would be helpful to him” (7/11/2022 Tr. 122, 130; see P-Y).
[13] Note, he did caution that it may be difficult to determine what tests may take Student 15 minutes to complete (7/11/2022 Tr. 159).
[14] As well as one hour of reading instruction outside of school (7/11/2022 Tr. 158).
[15] The DOE argued that Parent failed to produce a contract showing Parent incurred a financial obligation to pay for the Tutoring Program services and contested whether Parent is unable to make payments based on income (7/11/2022 Tr. 195; see generally 7/22/2022 Tr.), however, this is not a tuition reimbursement case, and the sole burden remains on the District.
[16] Note, the Developmental Psychologist testified that although the testing he conducted on July 1, 2022 assessing Student in five (5) areas of reading revealed Student scoring the same or lower than he had when previously evaluated in four areas[,] … in the area of decoding, he showed progress (from the 4th percentile to the 90th percentile)” (7/11/2022 Tr. 134-135).
[17] As discussed above, there is little evidence in the record regarding the methodology the DOE actually provides to this Student. There is mention in Student’s 3/18/2022 IEP that S.P.I.R.E. is “used in the classroom” along with a brief explanation of S.P.I.R.E. as “a small group reading intervention program” which is “based on the Orton-Gillingham reading intervention approach and is a comprehensive, intensive, and multi-sensory reading program that integrates phonological awareness, phonics, spelling, fluency, vocabulary, comprehension and handwriting” (P-F; D-2).
[18] See https://www.uft.org/sites/default/files/attachments/fy21-22-school-year-calendar.pdf.
[19] .50 hours equals the number of hours of tutoring received by Student from September 2021 through May 2022 which is being reimbursed to Parent as indicated above.