New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 573621 - NYC: 226775

FINDINGS OF FACT AND DECISION

Case Number: 226775

Student’s Name: STUDENT

School District: REDACTED

Impartial Hearing Officer: Michele Host

Date of Filing: June 3, 2022

Hearing Requested by: Parent

Date of Hearing: August 1, 2022

Record Close Date: August 15, 2022

Date of Decision: August 16, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON AUGUST 1, 2022

For the Student:

REDACTED Parent’s Counsel (“Parent’s Counsel”)

REDACTED The Parent (“Parent”)

REDACTED Director of Educational Services, the Tutoring Center (“Director”)

For the New York City Department of Education (the “DOE”)

REDACTED DOE Counsel (“DOE Counsel”)

BACKGROUND AND PROCEDURAL HISTORY

This matter concerns the Student, a REDACTED-year-old student classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services is not in dispute.

This matter comes before me on the Parent’s due process complaint, filed on or about June 3, 2022. In the Parent’s due process complaint, the Parent alleged that the DOE failed to provide the Student with a free and appropriate public education (“FAPE”) for the 2020-2021 and 2021-2022 school years by failing to properly evaluate the Student, failing to offer the Student an appropriate educational placement, and failing to draft IEPs with appropriate, meaningful, and measurable goals. The Parent also claimed that the DOE’s actions and/or inactions violated the Student’s rights under Section 504 of the Rehabilitation Act, the Americans with Disabilities Act, and Part 200.5 of the Regulations of the Commissioner of Education of the State of New York.

A pre-hearing conference was held in this matter on July 12, 2022. The Parent subsequently provided the DOE with proposed exhibits A through T in advance of the hearing, copying me. The DOE did not submit any exhibits. (Tr. 18)

On August 1, 2022, I held a due process hearing in this matter. The DOE offered no exhibits. I admitted the Parent’s proposed exhibits into evidence, without objection from the DOE.^[1] The DOE did not make an opening statement and conceded that the DOE failed to offer the Student a free and appropriate public education in either the 2020-2021 or the 2021-2022 school year. (Tr. 18-21) The Parent made an opening statement and presented two witnesses: the Director of Educational Services at the tutoring center that provided the Student with tutoring (“Director”), and the Parent. The DOE did not make a closing argument, whereas the Parent did present a closing argument.

The record in this case closed on August 15, 2022. A list of the documentary evidence in this proceeding is appended to this decision.

JURISDICTION

The due process hearing was held, and 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.; the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200; and Section 504 of the Rehabilitation Act.

FINDINGS OF FACT

After considering all the evidence, as well as the Parent’s closing argument, my findings of fact are as follows:

The Student is a REDACTED-year-old child classified by the DOE as a student with Autism. (P-B; E; K) On December 16, 2020, the public charter school the Student attended (the “Attending School”) issued a promotion in doubt letter because the Student did not pass five of the Student’s first trimester exams. (P-C) On February 12, 2020, the Committee on Special Education (“CSE”) convened to design an individualized education program (“IEP”) for the Student. (P-B) The meeting was attended by the Parent, a district representative, a special education manager, and a school psychologist. (P-B, p. 24) At the time of the IEP meeting, the Student was in sixth grade, but according to the description of the Student’s academic performance in the IEP, the Student was reading at a first-grade level and writing at a first or second grade level. (P-B, p. 2) The Student was supposedly performing at a first-grade level in math, a second-grade level in history, and at a second or third grade level in science. (P-B, p. 3) The February 12, 2020 IEP contains multiple references to the Student’s struggles with organization, focus, and basic reading comprehension. (P-B) Despite the significant educational deficits reported by the Student’s teachers in their description of the Student’s academic performance, the evaluation results presented by the IEP were all from 2018. (P-B, p. 1) In addition, under one of the Student’s annual goals for speech, the CSE reported that the therapist did not anticipate the Student reaching the goal during the grading period because the therapist “did not meet with the student.” (P-B, p. 15)

The IEP dated February 12, 2020, recommended that the Student be placed in a 12:1 special education classroom for English, math, social studies, and science, and receive the full-time support of a paraprofessional. (P-B, 18-19) The IEP also recommended that the Student receive individual counseling once a week for 40 minutes, and 3 times a week in a group for 40 minutes. (P-B, p. 18) In addition, the IEP mandated that the Student receive occupational therapy once a week for 40 minutes individually, and speech-language therapy twice a week for 40 minutes in a group of two students. These recommendations were all designed to be implemented at the Attending School.

Following the February 12, 2020 IEP meeting, the Student only received two occupational therapy sessions during the remainder of the 2020-2021 school year. (P-N, P-T 60). The Student only received about 40 out of approximately 80 counseling sessions during the 2020-2021 school year, many of which were provided in the incorrect provider-to-student ratio, and the Student only received 34 speech sessions during the 2020-2021 school year. (P-N; P; T)

On January 26, 2021, the CSE convened another IEP meeting for the Student. (P-E, p. 28) The IEP document generated from that meeting, dated February 22, 2021, still refers to evaluations performed of the Student in 2018. (P-E, p. 1) The IEP’s description of the Student’s present levels of performance shows that the Student made little progress from the last IEP; the Student’s decoding and spelling skills were still at around those of a 6-year-old, and the Student’s arithmetic calculation skills fell within the lower extreme range. (P-E, pp. 2-4) The Student also failed to make progress in the areas targeted by the Student’s related services—in large part, because the services were seldomly provided, or were not provided in the ratio prescribed. In the January 2021 IEP’s discussion of the Student’s occupational therapy, the IEP states, “Since there have only been a few OT sessions, the OT progress noted here is from the 2/12/20 IEP.” (P-E, p. 8) The January 2021 CSE also copied the Student’s February 2020 counseling goals into the Student’s January 2021 IEP. (P-B, pp. 8-10; P-E, pp. 14-16)

Because of the Student’s ongoing failure to progress at the Attending School, the Parent felt that she had no choice but to seek outside support for the Student. (P-T, ¶ 75) In February 2021, the Parent had the Student evaluated for tutoring services at a tutoring center (“Tutoring Center”). (P-S, ¶¶ 20-22) The Tutoring Center evaluated the Student using the Slosson Visual Motor Performance Test, Wold Sentence Copying Test, Boehm Test of Basic Concepts, Reading Readiness Evaluation, Rosner’s Test of Auditory Perception, Chall Phonetic Analysis, Slosson Oral Reading Test, Informal Reading Inventory, Achievement Test, Writing Sample, and the Tutoring Center’s Math Placement Exam. (P-S, ¶ 22) The Student’s results on all of the Tutoring Center’s assessments were generally very poor or significantly below grade level. (P-S) The Student began receiving 1:1 tutoring services at the Tutoring Center on February 22, 2021, and continued to receive those services until March 2022. (P-S, ¶ 26; Q) After paying various fees, the hourly cost of the Student’s tutoring was $68.00 per hour, and the Parent paid the Tutoring Center $10,199.00 for the tutoring services the Student received. (P-Q)

When the Attending School issued the Student’s final report card for the 2020-2021 school year, the Student had a failing average overall in the Student’s classes. (P-F) The Student also received failing grades in each of the Student’s individual classes except for phonics, in which the Student received a “C.” (P-F)

In the Fall of the 2021-2022 school year, the Student failed all of the Student’s classes. (P-G) In the teacher’s comment on the Student’s 2021-2022 report card, the teacher noted that the Student “struggled to follow directions when [the Student] is emotionally unregulated.” (P-G) The teacher noted that when the Student’s independent reading level was measured in November 2021, the Student’s independent reading level was an assumed kindergarten grade level equivalent. (P-G) The Student was an eighth grader in 2021. (P-G)

On December 16, 2021, the Attending School issued the Student another promotion in doubt letter because the Student was not passing four courses. (P-H)

On December 21, 2021, the Attending School conducted a Functional Behavioral Assessment (“FBA”) of the Student and developed a Behavior Intervention Plan (“BIP”) that identified the Student’s problematic behaviors that were interfering with the Student’s ability to learn and presented intervention strategies. (P-F; J)

On January 24, 2022, the CSE convened and produced another IEP for the Student. (P-K) The IEP contained no new evaluation results for the Student. The IEP recommended the Student’s continued placement in 12:1 classes for English, math, social studies, and science, with English and math to occur 10 times per week and social studies and science to occur five times per week. (P-K, p. 28) All academic subjects were to be delivered in a special education classroom. The IEP also recommended that the Student receive related services: individual counseling once a week for 40 minutes; counseling in a group of 3 once a week for 40 minutes; occupational therapy once a week for 40 minutes; and speech-language therapy once a week individually for 40 minutes and three times a week for 40 minutes in a group of 3. The IEP also continued to mandate full-time support by a paraprofessional for the Student. (P-K, 29)

The Student’s final report card for the 2021-2022 school year shows that the Student received a failing average in all of the Student’s classes. (P-M)

At the due process hearing in this matter, the Director and the Parent both testified. The Director earned a Bachelor of Science degree in Elementary and Special Education from REDACTED, and is New York State-certified in both elementary and special education. (P-S, 5-6) The Director is employed part-time as the Director of Educational Services at the Tutoring Center, where the Director is an approved SETSS provider. (P-S, 17) The Director also conducts student evaluations and regularly participates in IEP meetings.

The Director testified regarding the Tutoring Center’s evaluations of the Student and the tutoring services the Student received at the Tutoring Center. The Student was first evaluated at the Tutoring Center in February 2021, when the Student was in seventh grade, and began receiving tutoring services at the Tutoring Center on February 22, 2021. (P-S)

On February 21 and 23, 2022, the Tutoring Center conducted an updated evaluation of the Student. (P-P) The reevaluation showed at least some improvement in most subject areas, although the Student continued to operate significantly below grade level. For example, the Director testified:

[The Student] did not meet the expectations for the seventh grade in February 2021 or for the eighth grade in February 2022. However, during the February 2021 administration of [the Student’s] assessment, [the Student] was unable to correctly answer a single mathematics question. By February 2022, [the Student] was able to answer some Intermediate General Math Concepts questions and solve most Advanced Multiplication computation and word problems. Nevertheless, [the Student] continued to exhibit a significant lack of understanding and knowledge with all skills tested, most of which should have been acquired by the end of the eighth grade.

(P-S, ¶ 52)

Notably, the Student did not work on writing skills at HLC, so there was no improvement on the Student’s writing skills between February 2021 and March 2022. (P-S, ¶ 51)

The Parent testified credibly regarding her efforts to advocate for the Student with the DOE, her attendance at IEP meetings, the DOE’s failure to provide the Student with the services mandated by the Student’s IEPs, the Parent’s repeated requests to have the Student evaluated, and the Parent’s efforts to secure tutoring services for the Student. (P-T) The Parent testified about the Student’s February 12, 2020 IEP meeting and described the DOE’s failure to conduct any updated evaluations of the Student, as well as her confusion regarding the CSE’s failure to conduct any updated objective testing of the Student’s reading level. (P-T, ¶ 7) The Parent testified that, based on the Parent’s observations as well as the discussion at the CSE meeting, the Parent disagreed with the CSE’s claim that the Student was reading at a first-grade level. (P-T, ¶ 10) During the meeting, the CSE repeatedly discussed the Student’s organizational challenges, and the Parent testified that the Parent was “frustrated” that the CSE failed to develop any goals relating to the Student’s lack of organization or ability to turn in the Student’s homework assignments. (P-T, ¶ 18)

The Parent also testified about the Parent’s participation in the January 26, 2021, IEP meeting, noting that the Parent agreed with the CSE that the Student had not made progress in either reading or math since the last IEP meeting, and continued to dispute that the Student was even reading at the first grade level. (P-T, ¶¶ 43-48)

During the January 24, 2022 CSE meeting, the Parent testified that she reminded the CSE that the Parent had enrolled the Student at the Tutoring Center for tutoring. (P-20, 88) The Parent also testified that the Parent told the CSE that the Student continued to struggle to complete the Student’s homework. (Id.) The Parent testified that the February 2022 IEP goals were inappropriate because the CSE had simply recycled goals from one IEP into the next when the CSE still had not evaluated the Student since 2018. (P-T, ¶ 99)

The Parent testified that despite the requirements of the Student’s IEPs, between September 2021 and February 23, 2022, the DOE only provided the Student with 16 occupational therapy sessions, 22 counseling sessions, and 36 speech sessions. (P-T, ¶ 105)

Regarding the tutoring services provided by the Tutoring Center, the Parent testified that the Parent was happy with the progress the Student was making at the Tutoring Center, but the Parent could not afford any additional private tutoring after March 2022. (P-T, ¶ 129)

LEGAL FRAMEWORK

The IDEA establishes a “substantive right to a ‘free appropriate public education’” for children with disabilities. Endrew F. v. Douglas Co. School Dist, 137 S. Ct. 988, 993 (2017) (quoting Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty. v. Rowley, 458 U.S. 176 (1982)). The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

A FAPE is offered to a student when: (a) the DOE 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). “Not every procedural error will render an IEP legally inadequate.” M.H. v. New York City Dep’t of Educ., 685 F. 3d 217, 245 (2d Cir. 2012) (citation omitted). If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).

A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” Rowley, 458 U.S. at 203. School districts are not required to “maximize” the potential of students with disabilities, but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998); see also Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003). 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 Rowley, 458 U.S. at 192.

Throughout the hearing process, a school district bears the burden to show that it (1) complied with the IDEA’s procedural requirements; and (2) designed an IEP reasonably calculated to confer educational benefit on the student. C.B. ex rel W.B. v. N.Y. City Dep’t of Educ., 2005 U.S. Dist. LEXIS 15215, *37 (E.D.N.Y. June 10, 2005); 20 U.S.C. 1415(i)(2)(C)(iii); see also Walczak, 142 F.3d 119.

Under the IDEA, a New York City IEP team must include: the student’s parent or parents; at least one regular education teacher of the child if the student may be participating in the regular education environment; at least one special education teacher of the child; a district representative; and an individual who can interpret the instructional implications of evaluation results. 8 N.Y.C.R.R.§ 200.3(c). If the IEP team is reviewing a new psychological evaluation or changing to a program option with a more intensive staff/student ratio, the team must include a school psychologist. 8 N.Y.C.R.R.§ 200.3(c)(2)(v).

A school district’s failure to implement a student’s IEP constitutes a denial of FAPE under the IDEA. D.C. ex rel. E.B., 950 F. Supp. 2d at 509; Van Duyn ex rel. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (holding that a failure to implement an IEP may deny a child a FAPE and give rise to a claim under the Act). However, a party challenging the implementation of an IEP “must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP.” D.D-S v. Southold Union Free Sch. Dist., 2011 U.S. Dist. LEXIS 100809, at *40 (E.D.N.Y. 2011), quoting Houston Ind. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000).

To show a denial of FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App’x 520 (3d Cir. Aug. 14, 2008); Couture v. Bd. Of Educ., 535 F. 3d 1243 (10th Cir. 2008).

Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “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 Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

ANALYSIS

In this case, the DOE offered no documentary evidence or witness testimony and conceded that it failed to provide the Student with a free and appropriate public education during the 2020-2021 and 2021-2022 school years. (Tr. 18) It is clear from the records provided by the Parent that the DOE failed to meet its burden both procedurally and substantively.

At the time of the Student’s February 12, 2020 IEP, the last substantive evaluation conducted of the Student by the District was performed in 2018 (P-B) The DOE also did not conduct evaluations in preparation for the Student’s January 26, 2021 IEP or January 24, 2022 IEP. (P-E; K) Under the IDEA, the DOE must reevaluate the Student every three years unless the Parent and the District agree that such an evaluation is unnecessary. See 20 U.S.C. § 1414(a)(2)(B)(ii); see also 34 C.F.R. § 300.303-300.311; 8 N.Y.C.R.R. § 200.4(b)(4) (in New York, any agreement to forego the triennial reevaluation must be documented in writing). Moreover, federal regulations also require “that a child with a disability must be evaluated before there is any significant change in the child’s placement.” Application of a Student with a Disability, Appeal No. 94-002 (Feb. 28, 1994) (citing 34 C.F.R. § 104.35(a)). By repeatedly failing to re-evaluate the Student, the DOE failed to provide the Student with a FAPE.

The DOE’s failure to properly evaluate the Student was not the DOE’s only procedural failure in this matter. The CSE team for the 2020-2021 IEP was improperly constituted, because it failed to include one of the Student’s special education teachers. See 8 N.Y.C.R.R. § 200.3(c). In addition, the DOE failed to comply with its own IEPs in both 2020-2021 and 2021-2022 by failing to provide the Student with all of the speech-language therapy, occupational therapy and counseling mandated by those IEPs. (P-N; T)

The Supreme Court has found that “a reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F., 137 S.Ct. at 1002. In this case, the DOE submitted no evidence or testimony and conceded that it failed to provide the Student with a FAPE. Moreover, the record shows that the DOE failed to evaluate the Student and failed to implement the Student’s IEPs. The DOE has therefore failed to meet its burden to show that it provided the Student with a FAPE for the 2020-2021 and 2021-2022 school years.^[2]

RELIEF REQUESTED

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16). 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, 790 F.3d at 454.

In this case, the relief requested by the Parent is equitable in nature, as the Parent is asking me to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2021-2022 school year. Specifically, the Parent has requested that I order the following relief:

• • Evaluations of the Student, including an updated social history, classroom observation, speech language evaluation, auditory processing evaluation, occupational therapy evaluation, assistive technology evaluation, and a neuropsychological evaluation;
• • That the CSE convene with a duly constituted IEP team to develop an appropriate IEP for the Student and, if the CSE does not design an appropriate IEP, the CSE shall refer the Student to the Central Based Support Team (“CBST”);
• • Reimbursement to the Parent of $10,199.00 paid to the Tutoring Center through March 2022, as well as any subsequent payments made by the Parent;
• • 940 hours of compensatory tutoring services at the enhanced rate, based on the denial of appropriate services and FAPE during the 20220-2021 and 2021-2022 school years;
• • 53 hours of compensatory occupational therapy at the enhanced rate;
• • 106 hours of compensatory speech language therapy at the enhanced rate; and
• • 106 hours of compensatory counseling at the enhanced rate.

(P-A, ¶¶ 105-113)

DECISION

An award of compensatory services may be appropriate 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 DOE complied with its obligations under the IDEA. Newington, 546 F. 3d at 123. A compensatory education award can be designed using either a “quantitative” or a “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation. Under the qualitative approach, the focus is on a student’s needs and 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).

Given the duration of the deprivation and the evidence and testimony in the record, this case lends itself more appropriately towards the qualitative approach.

Turning to the relief requested by the Parent, the DOE has clearly violated the IDEA by repeatedly failing to evaluate the Student, and I will order the evaluations requested. I will also order the CSE team to convene with a duly constituted IEP team to design a new IEP team for the Student. I will not, however, order the CSE to refer the Student to the CBST if the CSE fails to design an IEP that provides the Student with a FAPE. If the Parent believes that the Student’s new IEP fails to provide the Student with a FAPE, the proper remedy is to file another due process complaint.

Regarding reimbursement of the funds the Parent spent to obtain tutoring services at the Tutoring Center, compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014). In this case, by failing to properly evaluate the Student and offer the Student educational services targeted at the Student’s needs, the DOE denied the Student a FAPE. The Director’s testimony shows that the Tutoring Center was an appropriate provider of tutoring services that designed a program appropriate for the Student’s needs. (P-S) Although the tutoring services provided by the Tutoring Center in 2021-2022 did not bring the Student up to grade level, it would be unreasonable to think that kind of leap would be possible, given the DOE’s failure to provide the Student with a free and appropriate public education for multiple years in a row. The tutoring provided by the Tutoring Center did permit the Student to make meaningful progress in light of the Student’s circumstances, as seen in the Student’s improvement between the Student’s two Tutoring Center academic evaluations. (P-O; P) Moreover, the Parent always remained in communication with the DOE and attended IEP meetings, meaning there would be no equitable bar to ordering reimbursement. (P-B; E; K) Accordingly, I will order the DOE to reimburse the Parent for the tutoring services she obtained for the Student from the Tutoring Center.

Likewise, I will order the DOE to fund 940 hours of compensatory tutoring services, at a rate not to exceed $97.00 per hour, at the Tutoring Center or another tutoring center of the Parent’s choice. (P-P, p. 1) The materials compiled by the Tutoring Center (verbal and math program guides, academic evaluation results, and a description of the tests administered to the Student during the evaluation process) show how the tutoring will help the Student gain the math and verbal skills that the DOE should have enabled the Student to develop by providing the Student with a free and appropriate public education. (P-O; P; R)

Finally, the Parent’s testimony, comments contained in the various IEPs provided by the Parent, and the Student’s related service records for 2020-2021 and 2021-2022 show that the Student was not provided the speech-language therapy, occupational therapy, and counseling in the amounts/ratios provided by the IEPs. (P-T; B; E; K; N) As a result, I will order the compensatory services requested by the Parent, although I will order that the rates for those services not exceed $250.00 per hour, rather than order that they be provided at the “enhanced rate.” (IHO-I)

ADDITIONAL RELIEF SOUGHT

In the Parent’s due process complaint, the Parent also seeks “an award of all attorneys’ fees incurred by the Parent in this case.” (P-A, ¶ 112) The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction. 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also Application of a Student with a Disability, Appeal No. 08-008 (March 31, 2008); Application of a Child with a Disability, Appeal No. 06-109 (Oct. 27, 2006). Only a court can determine if a party is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs. Therefore, to the extent that the Parent is seeking reimbursement and/or payment of attorneys’ fees and costs, the Parent’s request is denied.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied.

ORDER

Based above the above Findings of Fact, it is hereby:

• • ORDERED, that the DOE shall complete an updated Social History for the Student and conduct a Classroom Observation of the Student within 30 days; it is further
• • ORDERED, that the DOE shall conduct a Speech-Language Evaluation, Auditory Processing Evaluation, Occupational Therapy Evaluation, and Assistive Technology Evaluation of the Student within 30 days; it is further
• • ORDERED, that the DOE shall conduct a neuropsychological evaluation of the Student within 30 days, and if the DOE does not have an appropriately trained and licensed psychologist on staff and available, the DOE shall pay for a neuropsychological evaluation of the Student by a provider of the Parent’s choosing, at a cost not to exceed $7,000, with payment to be made directly to the provider within 30 days of receipt of an invoice; it is further
• • ORDERED, that the CSE shall convene an IEP meeting within 45 (forty-five) days of this decision, and that the CSE team shall contain all the participants required by 8 N.Y.C.R.R. § 200.3(c) and shall review and consider all of the evaluations ordered in 1-3, above, as well as the Tutoring Center Evaluation February 2022 report; and it is further
• • ORDERED that the DOE shall reimburse the Parent for the cost of the Student’s tutoring services provided by the Tutoring Center in the amount of $10,199.00 within 30 days of receipt of invoices from the Parent; and it is further
• • ORDERED, that the DOE shall pay for 940 hours of tutoring services for the Student at the Tutoring Center or a provider of the Parent’s choice, at a rate not to exceed $97.00 per hour, with reimbursement to the Parent or direct payment to be made to the provider within 30 days of receipt of invoices; and it is further
• • ORDERED, that the DOE shall pay for 53 hours of occupational therapy services, by a provider of the Parent’s choice, at a rate not to exceed $250.00 per hour, with reimbursement to the Parent or direct payment to be made to the provider within 30 days of receipt of invoices; and it is further
• • ORDERED, that the DOE shall pay for at least 106 hours of speech language therapy, by a provider of the Parent’s choice, a rate not to exceed $250.00 per hour, with reimbursement to the Parent or direct payment to be made to the provider within 30 days of receipt of invoices; and it is further
• • ORDERED, that the DOE shall pay for 106 hours of 1:1 counseling services for the Student, by a provider of the Parent’s choice, at a rate not to exceed $250.00 per hour, with reimbursement to the Parent or direct payment to be made to the provider within 30 days of receipt of invoices; and it is further
• • ORDERED, that, within 5 days of this Order, the DOE’s Implementation Unit shall provide the Parent with the name, direct phone number, and email address of an individual who can assist the Parent or the Parent’s providers with implementation of this Order and completing any necessary forms or documents; it is further
• • ORDERED, that the DOE’s Implementation Unit shall send the Parent all necessary forms and documents for the Parent to be reimbursed as set forth above within 5 days of this Order.

SO ORDERED.

DATED: August 16, 2022

• • Michele Host (signed electronically)
• • Impartial Hearing Officer
• • Michele Host

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.

Footnotes

[1] The Parent’s exhibits will be cited as “P” followed by a letter. IHO exhibits will be cited as “IHO” followed by a roman numeral. The hearing transcript will be cited as “Tr.” followed by a page number.

[2] Under the circumstances presented here, the DOE’s failure to meet the FAPE requirements of the IDEA also constitutes a failure to meet the substantive FAPE requirements of Section 504 of the Rehabilitation Act. See 34 C.F.R. § 104.33(b)(2).