New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 226929

Student’s Name:

School District: N.Y.C. Dept. of Ed., District #

Impartial Hearing Officer: Olivia Sohmer, Esq.

Date of Filing: 06/05/2022

Amended DPC: 07/15/2022

Hearing Requested by: Parent

Date of Hearing: 09/07/2022

09/21/2022

09/22/2022

Record Close Date: 10/28/2022

Date of Decision: 10/28/2022

INTRODUCTION/BACKGROUND

Student attends a non-public elementary school, paid for by her Parent. Student has a classification of Learning Disability under the Individuals with Disabilities Education Act (IDEA).

On June 15, 2022, Student’s Parent, without counsel, filed a Due Process Complaint (IHO Exhibit I, “the Original DPC”).^[1] The essence of the pro se DPC was that the Department of Education (“DOE” or “the District”) failed to provide the equitable services mandated by the Individualized Education Services Program (“IESP”) developed for Student on March 28, 2022. Parent alleged that although Student was approved for Special Education Teacher Support Services (“SETSS”), Parent was unable to locate a DOE-approved provider and was therefore paying out-of-pocket for Student to receive Orton-Gillingham services. The DPC alleges that Student has already shown great improvement from these services and should be entitled to have the services funded at an enhanced rate. On July 13, 2022, the Parent submitted an amended DPC (Parent’s Ex. J, the “ADPC”) alleging specifically that Student should be entitled to five sessions per week of Orton-Gillingham services at the rate of $175/hour and seeking reimbursement for payments already made by the Parent for such services (Parent’s Ex. J-2).

As is discussed more fully below, I find that the DOE failed to implement the IESP, thereby denying the Student a free appropriate public education (“FAPE”) on an equitable basis for the 2021-2022 and 2022-2023 school years,^[2] and that the relief Parent seeks is appropriate compensatory relief.

As an alternative rationale, I also find that the three prongs of the Burlington/Carter test have been satisfied, and that Parent’s unilateral implementation of the services promised by the DOE was appropriate.

PROCEDURAL HISTORY

I was appointed Impartial Hearing Officer (“IHO”) to preside over the merits of this matter on July 5, 2022. On July 7 and 8, 2022, I sent the parties emails with contact information and procedural information about the case. Upon receipt of the Parent’s proposed ADPC, I sent email to the unrepresented Parent and to the only known DOE contact, the generic email for the District Representative for the particular Committee on Special Education responsible for Student’s case. (“CSE-DR”), inquiring whether the DOE was consenting to the amendment. Upon receiving no response, and with the Resolution Period scheduled to end on July 15, I sent email to the parties on July 14, 2022 notifying them that the ADPC was deemed accepted, and that a new Resolution Period would therefore commence.

A Pre-Hearing Conference (“PHC”) was held on August 26, 2022, and the hearing commenced on September 7. The District’s Impartial Hearing Representative (“DOE IHR”) introduced four documents in evidence and rested. The only witness at the hearing was the Parent, who testified and offered a number of documents as exhibits.^[3] The DOE IHR consented to the pro se Parent offering additional exhibits after the commencement of the hearing (Tr: 67-68, 76-78), and further consented to adjourning the proceedings to allow the Parent to obtain and present evidence of the amounts she had paid for privately obtained tutoring services (Tr: 86-89). Presented with additional exhibits on September 21, the DOE IHR requested only a very brief adjournment to review the new evidence and agreed to continue the hearing the following day (Tr: 94-95, 99-100). On September 22, still another exhibit was presented by the Parent and accepted by the District (Tr: 148-149).^[4]

On September 21, 2022, upon the request of both parties, an extension of the compliance date was granted to permit completion of the hearing that was not yet concluded. At the same time, since both the IDEA and the New York State Education Law contain provisions designed “to maintain the educational status quo while the parties’ dispute is being resolved” (T.M. ex rel. A.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 152 (2d Cir. 2014); see 20 USC § 1415(j); NYS Ed L. § 4404(4)(a)), I issued a Pendency Order for the services enumerated in the undisputed IESP at market rate (IHO Ex. II). The District did not object to the issuance of the Pendency Order, and in fact provided a DOE form to be used as a template for the Order (Tr: 104-110).

FINDINGS OF FACT AND ANALYSIS

After a full review of the record developed herein, including the exhibits submitted by the parties and the testimony of the witnesses presented, I make the following findings of fact and conclusions of law:

Burden

At an impartial hearing in New York State, the school district has the burden of proving that a FAPE was provided. NYS Educ. Law § 4404(1)(c); see R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).

FAPE

The IDEA provides that children with disabilities are entitled to a free and appropriate public education (“FAPE”), 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (20 U.S.C. § 1401(9)). 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). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

Dual Enrollment

A board of education must offer a FAPE to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412(a)(l)(A); Educ. Law § 4402(2)(a), (b)(2)). The IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137(a)). When a student who resides in New York is eligible for special education services and attends a nonpublic school, however, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (“IESP”) under this State’s so-called “dual enrollment” statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA, namely a local Committee on Special Education (“CSE”) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). Disputes between parents and school districts related to IESPs are addressed pursuant to the provisions of Education Law § 4404, which effectuates the due process provisions called for by the IDEA (Educ. Law § 3602-c[2][b][1]).

Here, there is no dispute that Student is entitled to services. It is uncontested that the Student and Parent reside in New York City and the Student was placed, at Parent’s expense, at a nonpublic Parochial School at all times relevant to this complaint (DOE Ex. 2-1). Furthermore, it is uncontested that the Parochial School is located within the geographic boundaries of the DOE (DOE Exs. 2-5; 3-1, 4-1). Parent made timely requests for special education services (Ex. A). At the PHC, the DOE IHR stated that the District was not contesting that Student should receive the services listed in the IESP, and that the only issue was whether the DOE should pay an enhanced rate for those services (Tr: 14), which at that time the District intended to oppose with evidence that there were services available at the DOE recommended rate (Tr: 15-16).

Findings of Fact

Student attends a Parochial School. On January 24, 2022, while Student was in Kindergarten, Parent wrote to the CSE requesting that Student be evaluated for a potential learning disability (Ex. A; Tr: 58). Student’s Kindergarten Report Card reflects that student was struggling in key areas related to English Language Arts (ELA) and Mathematics (Parent Ex. F; see also Ex. G).^[5]

In February 2022, Parent arranged for an academic evaluation of Student.^[6] The evaluation was conducted by Tutoring Company I <REDACTED>,^[7] which was known to Parent from their work with her other child (Ex. B; Tr: 80). Tutoring Company I concluded that Student has “phonological language processing difficulties as well as language processing difficulties that are reflective of dyslexia” and recommended a “multisensory math approach” and an “Orton-Gillingham-based learning approach” (Ex. B12).

On March 28, 2022, the CSE convened to develop an IESP for Student. Parent attended the meeting, at which the DOE was represented by a Related Service Provider/Special Education Teacher and a School Psychologist who also served as District Representative (DOE Ex. 1-9). The CSE considered Student’s Social History, the March 25, 2022 Report of Psychoeducational Evaluation of Student conducted by the DOE on March 9, 2022 (DOE Ex. 4), and the report of a classroom observation conducted by the DOE on March 14, 2022 (DOE Ex. 3).^[8] The resulting IESP drew extensively from the conclusions and recommendations of Tutoring Company I’s report of academic evaluation, referring to an Orton-Gillingham-based learning approach, and even including the evaluator’s first person impressions without attributing them to that private evaluation (compare Ex. 1-2 with Ex. B12).

According to the IESP, Student “needs Special Education Teacher Support Services in order to access the general education environment” (DOE Ex. 1-3). The IESP recommended Special Education Teacher Support Services (“SETSS”) in a group setting, five “periods” per week at a “separate location” from Student’s classroom (DOE Ex. 1-6).

The “Projected date IESP is to be implemented” was April 11, 2022 (DOE Ex. 1-1). The statement in the IESP of the “Recommended Special Education Programs and Services” has a space for “Projected Beginning & Ending/Service Dates.” In that space is only a single date: the April 11, 2022 implementation date (DOE Ex. 1-6). Furthermore, the “Projected Date of Annual Review” of the IESP is March 28, 2023 (DOE Ex. 1-1), making clear that this service recommendation is not limited to the last months of the 2021-2022 school year, but is intended to carry into the 2022-2023 school year.

On April 1, 2022, the CSE School Psychologist/District Representative sent the IESP to Parent by email (Ex. L-002). The DOE issued a Prior Written Notice (Notice of Recommendation) dated April 4, 2022, which appears to have been transmitted by regular mail (Ex. 2-1, 2-5). On April 8, 2022, Parent responded to the email, stating that she could not tell from the IESP whether it was a 10-month or 12-month program, and requesting, “I would like to try and find a provider to work with [Student] 5x a week over the summer so she can catch up and not fall further behind.” Parent added that she had not received the list of providers (Ex. L-002). On April 11, 2022 (the implementation date of the IESP), Parent received the following email response from the CSE School Psychologist/District Representative, quoted here in its entirety:

Good morning.

IESP is always a 10-month program since it's the equivalent of what [Student] would have if she was in a public school.

Enclosed is a list of SETSS providers I have. It's not the most recent but try to call. Some may be available.

Have a good day.

(Ex. L-001; Tr: 65-66, 84). Attached to that email was an undated list with sixteen names and telephone numbers (Ex. K). The list has no additional information, such as company names or credentials of the providers. The list is not a voucher, nor does it state the rate the DOE would pay to any of these providers for SETSS services, although Parent testified that the rate the DOE offers for SETSS is $45 per hour (Tr: 81).

Parent attempted to contact all 16 providers on the list she had received from the DOE, making calls and also sending 21 text messages on April 29 alone (Ex. K; Ex. I; Tr: 62, 68-70). Many did not respond, and those who did were not available (Ex. I; Tr: 58, 60), although two said they might have time in the fall (Ex. I-16, I-20; Tr: 60, 70-71). Parent put messages on social media to try to find leads on other providers (Tr: 58, 66). Parent reached out to an old classmate who now has a speech and tutoring center to see if that person could provide any leads (Tr: 70-71). Parent even considered working with a provider whose name she got from a relative, despite the fact that the provider was not trained in Orton-Gillingham and was only looking to take on a small case load for the summer when the DOE would not authorize services (Tr: 71; Ex. I-13).

Unable to obtain services from any of the providers on the DOE’s list, Parent turned to Tutoring Company I, the provider who had conducted the evaluation and made the recommendations adopted in the IESP, and who was already providing tutoring services to her other child. However, Tutoring Company I only had openings in its schedule to provide two hours per week. To obtain for Student the full five hours per week of services recommended in the IESP, Parent arranged starting May 9, 2022, for Student to receive additional tutoring from a second company (“Tutoring Company II”) at a rate of $150 per session (Ex. M; Tr: 80, 137). Parent chose these two companies because they could provide the Orton-Gillingham services specifically referenced in the IESP (Tr: 80, 128; Exs. B14; Ex O).

On June 7, 2022, Parent wrote to the DOE stating that she had been unable to obtain services from any provider at the DOE rate and would be filing for Due Process relief to obtain the enhanced rate for private SETSS services (Parent Ex. L-001).

Parent provided a receipt for $1,250 paid to Tutoring Company I <REDACTED> for 10 hours of SETSS services received from April 6, 2022 through May 5, 2022 (Ex. O; Tr: 137-139). Parent testified that Student received 10 more hours of SETSS from Tutoring Company I in June 2022, for which Parent expected to be billed at the same rate. June 30, 2022 was the last session of SETSS through Tutoring Company I because the tutor was not available during the month of July (Ex. Q). Parent provided her own list of the June dates of service from Tutoring Company I (Ex. P; Tr: 121). She testified that she was reluctant to ask Tutoring Company I for documentation because it would alert them that they need to send her another bill that she could not afford to pay (Tr: 98).^[9]

Parent testified and provided an email from Tutoring Company I explaining that they were willing to provide services to Parent at the reduced rate of $125 per hour, because they had an existing relationship through providing services to Parent’s other child since 2019 and allowed Parent a hardship discount rather than requiring her to keep step with their increased rates. However, Tutoring Company I’s rates have increased to $175. Tutoring Company I has provided contracted services to the DOE in other cases, albeit under a different corporate name. Any future SETSS services to Student awarded by this forum or contracted by the DOE would be contracted through that “agency of record with the DOE” and billed at Tutoring Company I’s current rate of $175 per hour (Tr: 134-135; Ex. N).

Parent provided a receipt from Tutoring Company II <REDACTED> showing that Parent paid $9450.00 to for a total of 63 hours of SETSS at $150/hour from May 9 through August 25, 2022 (Ex. M-1; Tr: 81, 142).

Student Was Denied a FAPE The implementation of IESP services falls on the district of location insofar as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent” (Educ. Law § 3602-c[2][a]). The CSE must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district” (Educ. Law § 3602-c(2)(b)(1)). Furthermore, “Boards of education of all school districts of the state shall furnish services to students” (Educ. Law § 3602-c(2)(a) (emphasis added)). Additionally, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404.

In this case, the DOE argued on summation that there was “no allegation that a FAPE was not provided” (Tr: 153). I roundly reject this contention. Even the most perfect plan, if presented only on paper and never implemented, is not a FAPE. A district cannot be absolved of its statutory obligation to implement services for an eligible student simply by being inactive, nor can it delegate to parents of eligible students the responsibility for implementing the mandated services. The DOE had the obligation to furnish services to the Student in conformity with the IESP (Educ. Law § 3602-c(2)(a), (b)(l)). In failing to do so, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district. In this case, the DOE – which had the burden of proof –argued only that Parent made insufficient efforts to secure SETSS from one of the providers on the approved list. The DOE did not demonstrate that any of the approved providers was available or that continued efforts would have been any more productive than the extensive efforts Parent had already made.

As discussed, the Parent testified credibly that the DOE did no more than provide her with a list of names of individuals who in some unspecified year, had agreed to provide SETSS services at an unspecified rate offered by the DOE. While it may very well be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parent’s inability to locate a provider is shifted to the parent. The DOE does not explain why it did not simply schedule the special education services as mandated by the IESP and, in essence, inform the Parent where and when the services would be available, and at which time the Parent would have the responsibility to produce the student in order to receive the services.

The DOE’s arguments similarly fail on equitable grounds: there is no evidence that the Parent failed to cooperate with the DOE or interfered in any manner with the DEO’s obligation to provide the Student with a FAPE on an equitable basis. On the contrary, all the evidence indicates that the Parent cooperated fully with the DOE and tried valiantly to follow the DOE’s instructions, but to no avail.

The DOE at no point provided Parent with a current list of providers (Tr: 76). I find unreasonable the District’s expectation that, in the fall of 2022, Parent should have renewed her efforts to secure services from some provider on the DOE’s outdated list, on the off chance someone might have availability (Tr: 71, 73, 83). During cross-examination by the District, Parent summarized her position this way:

My daughter received IE[S]P on April 11th. I was not waiting until September to get my daughter, that she was pulled that much further behind. The DOE had an obligation to provide the services as of the date that her IESP was administered. And they've done nothing to assist me to make sure that my daughter gets the services that she's entitled to. I had to go find a provider on my own and paid a private rate. They failed my daughter. CSE failed my daughter. … I did my due diligence. I contacted every provider on the list provided to me by the CSE and not one provider was available to work with my daughter in April and in May when her IESP was provided. It is a failure in the part of the DOE and the CSE to say that I should have to wait until September. April, May, June, July, August, September, six months after her date of her IESP being issued to receive services.

(Tr: 72). I agree. It is not enough for an IESP to recommend appropriate services if the DOE fails to implement that plan. The District denied Student a FAPE. I find in favor of the Parent.

Compensatory Relief The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D. Conn. 2017). Under the IDEA, courts can “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)) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. 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).

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 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 district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place”, and any award “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

Compensatory education awards may include payment for out-of-pocket educational expenses incurred 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 remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).

The evidence presented at the hearing clearly establishes Student’s need for the services recommended in the IESP. During 2021-2022, although Student consistently met standards for eagerness and curiosity as a learner, participation, following classroom routines, and understanding concepts in the science and social studies curricula (Parochial School Report Card, Ex. F-1), as of third quarter that year, Student performed below standards in such key measures of academic ability in English Language Arts (“ELA”) as reading from left to right, recognizing and producing rhyming words, blending sounds in words, and reading common sight words, among others (Ex. F-3). In mathematics, although she met standards in writing numbers from 0-20, she performed below standards in understanding the concept of subtraction and composing and decomposing numbers from 11-19 using base ten, and only approached standards in demonstration of one-to-one correspondence in counting numbers and understanding the concept of addition (Ex. F-3).

“MAP” screening and skills testing conducted by the Parochial School in early October 2021 reflected that although student scored 80% at letter identification, she scored only 40% at visually matching letters to sounds and 0% for phonological matching of sounds (Ex. G-1). In mathematics, although Student scored 80% in identifying numerals from 1-10, her score in one-to-one correspondence from 1-10 was 0% (Ex. G-2). Overall, Student’s reading achievement was in the 13th percentile, and her mathematics achievement was in the 5th percentile (Ex. G-3).

The Appropriate Compensatory Award

A compensatory remedy may be in the form of reimbursement for compensatory instruction and/or an award of the instruction itself. Reid ex rel. Reid v District of Columbia, 401 F3d 516, 522-523 (2005). After considering both parties’ positions and for the reasons stated above, I find that the Student should have received 5 hours per week of Orton-Gillingham SETSS under the IESP from Monday, April 11, 2022 (the implementation date of the IESP) to Monday June 27, 2022, the last day of school for the 2021-2022 school year, that is, for 11 weeks, or 55 hours. I further find that Student was entitled to receive 5 hours per week of SETSS starting on her first day of school on September 7, 2022 (Tr: 106) and for the duration of the IESP, that is, until superseded after annual review on or about March 28, 2023. To avoid a break in services or a similar situation next Spring as occurred this year, I order compensatory services based on the entirety of the ten-month 2022-2023 school year, in other words, for 39 weeks^[10] at five hours per week (a total of 195 hours).^[11] These hours are irrespective of and in addition to any services that may be recommended upon annual review of Student’s IESP but shall expire on September 2, 2023.^[12]

Additionally, although the IESP recommends that the SETSS be delivered in a group setting, I find, based on the record of the Parent’s search for a provider that such limitation is unreasonable and should not be an impediment to Student’s receiving services.

I therefore order the DOE to fund a grand total of 250 (two hundred fifty) hours of SETSS at market rate. To the extent Parent has already used some of these hours, the DOE must reimburse the parent for any amounts already paid, and the DOE shall make additional payment either to the parent or directly to the provider, at the parent’s discretion, for any services already obtained but not yet paid for. The DOE shall fund the remaining hours going forward.^[13]

The services described above may be obtained from a qualified provider of the Parent’s choosing, at market rate. If the provider is one who has received payment for services from the DOE during the past 12 months, the rate to be paid that provider (after the Parent has been reimbursed for expenses already paid or incurred for services received on or before such date as the DOE provides the necessary Services Authorization paperwork) shall be the highest rate the DOE’s Implementation Unit has paid to such provider for the same or similar services in the past 12 months.

To compensate for the initial delay in commencement of services as well as for Parent’s inability to schedule the full number of hours per week, and to compensate for any interruption of services, the services awarded herein may be used during July and August 2023 but shall expire if not used on or before September 2, 2023.

Alternate Rationale: Unilateral Placement^[14]

Certain decisions of the Office of State Review have viewed equitable services cases under this lens. (See, e.g., Application of a Student With a Disability, Appeal No. 21-119; Application of a Student with a Disability, Appeal No. 21-025).

A school district may be required to pay for private tuition expenses if (1) the services offered by the District were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). These three conditions constitute the three-prong Burlington/Carter test in a tuition reimbursement case. (See, e.g., M.W. ex rel. S.W. v. N.Y.C. Dep't. of Educ., 725 F.3d 131, 135 [2d Cir. 2013]).

Prong I – FAPE

As discussed above, Student was denied a FAPE. Prong I is satisfied.

Prong II – Appropriateness of the Private Program The Parent has the burden of proving that a unilateral placement was appropriate. To do this, the Parent must establish by a preponderance of the evidence that the private placement is reasonably calculated to enable the child to receive educational benefits. Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007); Frank G. v Bd. of Educ., 459 F.3d 356, 364-365 (2d Cir. 2006). There is no express requirement that the program must be individualized for each student; instead, the examination of a unilateral placement is focused on whether the placement reasonably serves the individual and unique needs of the Student to an extent that permits the Student to benefit from the instruction. A parent is not required to show that a student has in fact progressed significantly since enrolling, G.R. v. New York City Dep't of Educ., 2009 U.S. Dist. LEXIS 69348 at *7, 2009 WL 2432369, at *3 (S.D.N.Y. Aug. 7, 2009), and a finding of academic progress alone is not dispositive in determining whether a unilateral placement is appropriate (Scarsdale Union Free Sch. Dist. v. R.C., 60 IDELR 195, 2013 U.S. Dist. LEXIS 21194, *27 [SDNY Feb. 4, 2013]). However, evidence of such progress is nevertheless a relevant factor in the totality of circumstances that may be considered in making that determination (see Frank G., 459 F.3d at 364).

The Tutoring Companies identified by Parent provide Orton-Gillingham services, an evidence-based approach. Tutoring Company I clearly disclosed in their academic evaluation of Student that they were proposing to provide the services they were recommending (Ex. B11).^[15] The recommendation for such services was quoted verbatim in the IESP, creating the impression, particularly for an unrepresented parent, that services of this nature were part of the mandate.

A neuropsychological evaluation of Student conducted in late July 2022 (and therefore, of course, not yet considered by the CSE) hypothesized that Student had already benefitted from receiving several months of Orton-Gillingham tutoring (Ex. E5) and recommended that she continue to receive tutoring using that or a comparable phonics-based multisensory approach (Ex. E6).^[16] Parent testified that the tutoring her daughter has received so far is “making a dramatic difference,” and that Student had for the first time been able to spell all the words for a spelling test held the week of the hearing. Student is still failing her math tests, but Parent’s understanding is that the Orton-Gillingham services will help Student read and process math information as well (Tr: 144).

The services of Tutoring Companies I and II are “reasonably calculated to enable the child to receive educational benefits” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). The Parent has satisfied Prong II of the Burlington/Carter analysis.

Prong III – Equities and Tuition Amount To receive an award of tuition reimbursement associated with a private school program or, in this case, a private tutoring program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief.” Frank G., 459 F.3d at 363-64; see also 20 U.S.C. § 1412[a][10][C][iii]. When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, the adjudicator “enjoys broad discretion in considering equitable factors relevant to fashioning relief.” Gagliardo, 489 F.3d at 112, citing Carter, 510 U.S. 7 at 16. “A major consideration... is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted); see Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (SDNY 2011) (equities met where parents cooperated in good faith at all times with the DOE, participated in the CSE meeting, visited proposed placements and notified district of unilateral placement).

Here, the equities are in Parent’s favor not only to allow full reimbursement of expenses already paid, but to allow future funding by direct payment to a provider of Parent’s choosing at an enhanced rate. From the very outset, the District has shifted onto the Parent the burden of providing a FAPE for Student: When Parent requested an evaluation, the CSE did not conduct an academic assessment, but used the one obtained privately by the Parent (DOE Ex. 1-2). Three days before the implementation date on the IESP, Parent sought permission to look for a provider who could work with Student during the summer so she would not fall further behind (Ex. L-002). Although the CSE clearly expected Parent to arrange for the services, they did not even send her a list of providers until April 11, the implementation date (L-001). Parent then made extraordinary efforts to obtain services at the DOE’s approved rate before finally resorting to providers who charged an enhanced rate. On June 7, 2022, she informed the DOE that she had “contacted every provider on the list” without success and “I am having to private pay to get services for her. I am going to fill out the Due Process form” (Ex. L-001).

The evidence is clear and convincing that the District failed abysmally to implement its own IESP recommendations, shifting the burden of implementation entirely to the Parent. In these circumstances, I find that it would be inequitable to place an express burden on this unrepresented Parent to provide ten days’ notice “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense” (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]).

Parent has satisfied all three prongs of the Burlington/Carter test.

Reimbursement and Direct Funding

Tuition funding paid directly to a private school – or, in this case, a private SETSS provider – is justified where parents have satisfied the Burlington/Carter test and have shown that they cannot afford to front the cost of the tuition or services. E.M. ex rel. N.M. v. New York City Dept. of Educ., 758 F. 3d 442, 452-454 (2d Cir. 2014); Mr. and Mrs. A., 769 F. Supp. 2d at 427. Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998).

Parent unquestionably acted at her own financial risk (Florence County Sch. Dist. Four v Carter by & Through Carter, 510 US 7, 15 [1993]). She expended considerable funds, even to the point of fearing to ask Provider I for an accounting lest it cause them to send her a bill and suspend provision of further services because she could not afford to pay. The equities favor full reimbursement of what she has paid.

Further, the equities favor prospective funding of services from a provider of the Parent’s choosing. Parent has cobbled together a schedule of services from two providers, and the equities favor allowing Parent to continue using the same services even if a provider could now be located at the District’s rate. As Parent testified, Student “has been working with them for several months” and is “getting used to them.” The providers “know where [her/Student’s] weaknesses are and where her strengths are, and I don’t intend to switch at this point” (Tr: 83). Therefore, Parent may continue to work with either or both of these providers at the enhanced rate of up to $175 per hour or the highest rate paid to that provider (by any name) for similar services in the last 12 months, whichever is lower.

ORDER

For the foregoing reasons, it is therefore ORDERED AND ADJUDGED that:

• • The DOE did not provide equitable services in support of a FAPE beginning 4/11/2022 and continuing into the school year 2022-2023;
• • The DOE shall provide and fund a bank of up to 250 (two hundred fifty) hours of individual (1:1) tutoring services by a licensed Special Education teacher of the Parent’s choosing at an enhanced rate, as follows:
• • For 73 (seventy-three) hours of services already paid by the Parent, reimbursement to the Parent in the amount of $10,700 (ten thousand seven hundred dollars);
• • For any additional hours of services already paid by the Parent prior to the issuance of this Order, reimbursement at the rate of up to $150/hour upon submission to the DOE of proof of payment made prior to the date of this Order;
• • For hours of services obtained and billed to the Parent but not paid by the Parent prior to the issuance of this Order, reimbursement to the Parent and/or direct payment to the provider upon submission to the DOE of proof of payment and/or invoices billed to the Parent at the rate of $125/hour to <REDACTED> Tutoring Company I and/or $150/hour to <REDACTED> Tutoring Company II;
• • For hours of services obtained after the issuance of this Order, direct payment to the provider at the rate of up to $175/hour or the highest rate paid by the DOE to a particular provider or any business entity related to that provider, including but not limited to <REDACTED> Tutoring Company I <d/b/a REDACTED> for similar services in the past 12 months, whichever is lower:
• • All services awarded herein shall expire if not used on or before September 2, 2023.
• • If the CSE has not already done so, the CSE is directed to consider the private July 2022 Neuropsychological Evaluation, in addition to any other updated information concerning this Student, at its next annual review, but in no event later than March 28, 2023.

SO ORDERED.

Dated: October 28, 2022 ____/s/ Olivia Sohmer______

OLIVIA SOHMER, 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.

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

1

IESP

03/28/2022

9

2

Prior Notice for Placement

04/04/2022

11

3

Classroom Observation

03/14/2022

2

4

Psychoeducational Evaluation Report

03/17/2022

5

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A.

Initial Request for Evaluation

1/24/2021

1

B.

Report from <REDACTED> Tutoring Company I

2/16/2022

14

C.

WITHDRAWN – DUPLICATIVE

D.

WITHDRAWN – DUPLICATIVE

E.

Neuropsychological Evaluation

7/22/2022 and 7/27/2022

10

F.

Kindergarten Report Card

Q1, Q2, and Q3 [2021-2022]

3

G.

MAP Testing, Winter 2021

10/5/2021

3

H.

MAP Testing, Spring 2022

6/1/2022

1

I Messages to Potential Providers from DOE SETSS Provider List Various 21

J Amended Request for Due Process Proceedings 7/13/2022 2

K SETSS Provider List Undated 1

L Email between Parent and DOE 4/1/22, 4/8/22, 4/11/22, 6/7/22 2 M <REDACTED> Tutoring Company II Payment Record 9/10/2022 1 N <REDACTED> Tutoring Company I email 9/20/22 & 9/21/22 1 O <REDACTED> Tutoring Company I Invoice 4/9/2022 1 P Dates of Unbilled <REDACTED> Tutoring Company I Services undated 1 Q Text message exchange with tutor, <REDACTED> Tutoring Company I 6/30/2022 4 IHO EVIDENCE Exhibit

Title

Date

Pages

I

Original Due Process Complaint

6/15/2022

4

II

Pendency Order

9/21/2022

2

Footnotes

[1] Parent is an attorney, practicing in the areas of Elder Law, Medicaid, Estate Planning, and Guardianships (see DPC, IHO Ex. I.003).

[2] The “Request For Due Process Proceedings” form published by the DOE and used by Parent for the DPC and ADPC contains a space for “Date of current IEP” but does not have a place for a parent to specify a school year or years to which the claim applies (IHO Ex. I.002; Parent Ex. J-2). For reasons explained further below, I find that this action pertains to the two school years indicated.

[3] A list of all exhibits is annexed as an appendix hereto. The District’s exhibits are numbered, and the Parent’s exhibits are identified by letter, with the page number indicated (for example “DOE Ex. 1-3,” “Parent Ex. A3” or just “Ex. A3”).

[4] The DOE IHR displayed commendable flexibility during the hearing itself.

[5] Student’s Kindergarten report card (Ex. F-1) and references in a March 9, 2022 Psychoeducational Report (DOE Ex. 4-1) and March 14, 2022 classroom observation (DOE Ex. 3-1) establish that Student attended Kindergarten during SY 2021-2022. Although the discrepancy was not expressly addressed on the record, I find it most likely that the “January 24, 2021” on Parent’s letter (Ex. A) is a typographical error of a sort not infrequently made in January. In any event, there is no evidence in the record that Student repeated Kindergarten or that the DOE delayed more than a full year in convening a CSE.

[6] The IESP notes that “The academic assessment has been conducted privately” (DOE Ex. 1-2). This is also mentioned in the DOE’s Psychoeducational Evaluation Report (DOE Ex. 4-1, 4-5). Parent stated at the PHC that the DOE was backlogged and could not have Student assessed. Parent was told that if she had an assessment done, the DOE would use that assessment (Tr: 26-27). Parent has not requested reimbursement for the cost of this assessment.

[7] The names of the tutoring companies are included in <brackets> in this decision for ease of comprehension by the reader and implementation of this Order. They will be redacted before transmission to the Due Process Unit of the State Education Department.

[8] See DOE Ex. 2-2 for list of evaluations and assessments considered. No separate report of the Social History was offered in evidence by the DOE. Student’s Social Development is discussed in the IESP at DOE Ex. 1-3.

[9] Parent did not provide clear evidence of how many hours of services were obtained from Tutoring Company I in May 2022, nor whether any such services have yet been paid for.

[10] Wednesday, September 7, 2022 through Tuesday, June 26, 2023 is 42 weeks, from which I have subtracted three weeks of recess.

[11] Parent claimed at the hearing to have been told and to have read in the Special Education Standard Operating Procedures Manual that if Student were attending public school, she would have been in an ICT class, which is equivalent to 10 hours of SETSS (Tr: 73-75). This manual was not offered in evidence, and I do not find evidence in the record to support an award of double the services recommended in the IESP.

[12] The July 2022 neuropsychological evaluation indicates that student is experiencing difficulty understanding math concepts. It is not clear from that evaluation whether this is a separate problem from Student’s reading difficulties or something that may be addressed through the tutoring she is receiving (Ex. E4-6). The academic evaluation and recommendations by Tutoring Company I suggest that they will (Ex. B12).

[13] Parent has already paid for 73 hours of services (Ex. M; Ex O). She had incurred financial obligation for an additional 10 hours of services as of the date of the hearing (Ex. P), and apparently additional prior to the issuance of this decision (IHO Ex. III).

[14] I present this alternative basis for my decision in light of the State Review Officer’s (“SRO”) decisions discussing whether matters such as these should proceed under a Burlington/Carter or compensatory education analysis. See e.g. Application of a Student with a Disability, Appeal No. 21- 025. As the SRO has noted, however, “the administrative due process system was not designed to set rate-making policies for what has grown into a completely unregulated cottage industry of independent special education teachers that parents within the New York City Department of Education are increasingly reliant upon, an industry that is not authorized by the State in the first place.” Application of a Student with a Disability, Appeal No. 21-119 at 11. For the reasons stated above, I believe the compensatory education framework is more appropriate to this case. Under either analysis, however, the outcome is the same.

[15] The evaluation did not disclose that the company does business with the DOE under another name (see Ex. N). As indicated above, although Parent is entitled to full reimbursement of what she has already paid, direct payment by the DOE will be capped based on prior payment of an enhanced rate for similar services.

[16] The neuropsychological evaluation also recommended a 1:1 paraprofessional in the classroom, occupational therapy to address weaknesses in fine motor coordination and attention difficulties, counseling to address emotional and behavioral concerns, and Parent counseling and/or training to support generalization of skills into the home (Ex. E6). Parent does not seek award from this forum of any of those services.