NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
NYSED # 574372 / NYC # 227243
FINDINGS OF FACT AND DECISION
Case Number: [Redacted]
Student’s Name: [Redacted]
School District: N.Y.C. Dept. of Ed., District # [Redacted]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: [Redacted]
Hearing Requested by: Parent
Dates of Hearing: 08/16/2022 and 08/25/2022
Record Close Date: 09/02/2022
Date of Decision: 09/10/2022
Names and Titles of Persons Who Appeared August 16, 2022
For the Student
[Redacted], Authorized Representative
[Redacted], Esq.
[Redacted], Principal, [Redacted]
[Redacted], PhD., Director, [Redacted]
[Redacted], PhD., Neuropsychologist
[Redacted], Parent
For the New York City Department of Education
[Redacted], Esq.
[Redacted], Esq.
Names and Titles of Persons Who Appeared August 25, 2022
For the Student
[Redacted], Authorized Representative
[Redacted], Esq.
For the New York City Department of Education
[Redacted], Esq.
Background
On June 14, 2022, the Parent, by and through the Parent’s Representative, filed a due process complaint (DPC) against the New York City Department of Education (DOE or Department), on behalf of the Student, under Case No. 227243, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”).[1] The DPC asserts that after the Committee on Special Education (CSE) held an individualized education program (IEP) meeting for the Student,[2] the Student was denied a free and appropriate public education (FAPE) both procedurally and substantively for “at least the 2020-[20]21 and 2021-[20]22 school years[.]”[3] As a result, the Parent seeks the cost of tuition at the Private School for the 2021-2022 school year, 180 hours of compensatory education in the form of tutoring, and the cost of transportation to and from the tutoring.[4] The DPC also requests that meals and transportation costs to and from the Private School be covered for the 2021-2022 school year[5]; at the hearing, however, those claims were withdrawn,[6] and therefore will not be addressed.
Procedural History
I was appointed the impartial hearing officer (IHO) over this matter on July 5, 2022. On July 22, 2022, a pre-hearing conference was held, and on August 1, 2022, I issued a Pre-Hearing Conference Summary and Order.[7] I issued an Order of Extension on August 25, 2022,[8] and on that day I also issued a post-hearing scheduling order.[9] The merits hearing was held before me on August 16, 2022 and on August 25, 2022. At the hearing, all the parties’ exhibits were admitted without objection.[10] The Department did not produce witnesses, while the Parent produced the Principal of the Private School, one of the Private School Teachers, the Director of the Tutoring Facility, the Neuropsychologist, and the Parent herself.[11]
Findings of Fact
The following was not in dispute. The Student is REDACTED years old and, for the 2021-2022 school year, was parentally placed in 7th grade at the Private School.[12] The Student is classified by the CSE as a student with “Other Health Impairment[,]”[13] and has been diagnosed with Autism Spectrum Disorder (ASD), Attention-Deficit/Hyperactivity Disorder (ADHD), Specific Learning Disorder with impairment in reading and written expression, and a Language Disorder.[14]
Beginning with an IEP developed for the Student during REDACTED grade (the 2017-2018 school year), the Department recommended a program with a classroom size of 12 students to one teacher and one assistant teacher (12:1:1).[15] At the time, the Student was reading at a first grade level.[16] The same program was recommended by the CSE for the 2018-2019 school year, and the 2019-2020 school year, while the Student continued to read at a first grade level.[17] He was also “below standards” in math and his writing was described as “unreadable” while his program recommendation remained unchanged during these school years.[18] At an IEP meeting held on January 11, 2021, the team modified the Student’s related services but kept the 12:1:1 classroom environment in place.[19] Two more IEPs were developed that year, on June 23, 2021, and on August 11, 2021; both IEPs continued the 12:1:1 classroom recommendation, with the latter modifying the program so that the Student would attend school for the entire 12-month year.[20] In the August 11, 2021 IEP, after the Student completed the 6th grade, the team noted that the Student “is making improvement in the area of reading” in that it was no longer a first grade level but an “End second/beginning third” grade level.[21] The IEP also mentions the Parent’s concerns that the Student continued to have “academic delays” and that “the supports he received in elementary school were not sufficient.”[22] The Parent also explained to the team that the Student “received a neuropsychological evaluation in which a private school was recommended” but the IEP further states that “the IEP team did not have the report to review to determine appropriate placement.”[23] Notwithstanding this, the team continued to recommend the 12:1:1 program, stating that it also considered but rejected an approved non-public school, “as it would be too restrictive at this time.”[24]
On August 13, 2021, the Department sent a prior written notice (PWN) with the above recommended program.[25] On August 27, 2021, the Parent notified the Department of her intent to place the Student at the Private School, through a Ten-Day Notice (TDN).[26]
The Department’s Case In support of its case in chief, the Department offered 29 exhibits at the hearing. The Department’s Attorney asserted that these documents demonstrate that the Student was provided a FAPE for the 2021-2022 school year, through a small classroom environment, properly developed IEPs that enabled measurable progress, and effective related services.[27] On this evidence, the attorney argued that the Student did not require tuition at the Private School or 180 hours of tutoring.[28] The attorney also noted that the PWNs the Department sent to the Parent on March 30, 2020, March 19, 2021, June 25, 2021, and on August 13, 2021,[29] show when the IEPs were developed and offered the Parent its program recommendations pursuant to its FAPE obligations.[30] The Department reserved its right to adduce additional evidence from the Parent’s witnesses.
Department’s Exhibits The Department’s exhibits demonstrate that four IEPs were developed for the Student between March 18, 2020, and August 11, 2021.[31] They include a review of assessments that described the Student as having a reading level of “beginning of 1st grade” in October of 2019 and “beginning of 2nd” in February of 2020, and math level of “beginning of 2nd" grade in October of 2019 and “beginning of 3rd” in February of 2020.[32]
In a DOE speech-language report dated January 1, 2021, the therapist reported that the Student “demonstrates delays in both receptive and expressive language skills, as well as phonological awareness” and that “[i]t is often unclear whether or not [he] completely understands the information or directions... without the clinician initiating the inquiry.”[33] Some of this was attributed to the remote link, as students were still learning from home during the COVID-19 pandmic,[34] but overall, he was found only to have “made limited progress with his current speech and language goals.”[35] In the June 23, 2021 and August 11, 2021 IEPs, it was reported that when the Student was asked about his least favorite subject, he stated, “writing, ‘because [] I don’t know how to write it and I get confused.’”[36] He was reported to have “more difficulties with multisyllabic target words” and “benefits from verbal reminders to slow down and use his previously taught strategies... when trying to decode and encode target words.”[37] It was noted that he required “extra time to complete tasks and assessments” and that he “has a difficult time staying focused for an extended period of time[,]”[38] and that he benefitted from “verbal praise and encouragement, visual, verbal and phonemic modeling and prompting, repetition, rephrasing, along with use of graphic organizers.”[39] His reading was described as having improved from a Level K (end of first grade) to a Level M (end of second grade/beginning of third), but his writing could not be assessed because he had not submitted any writing work assigned to him.[40] He “continue[d] to show great difficulty with writing” and “struggle[d] with explaining his answers in writing” and “states that writing is hard for him and will not complete writing task[s].”[41] He could spell first grade words but “struggled spelling words beginning at fourth grade” level.[42] He was entering the 7th grade.[43]
The “management needs” section of the June 23, 2021, and the August 11, 2021 IEPs included the use of a “multi-modal approach[,]” trying to “limit distractions” such as having him “sit in the front close to the teacher[,]” “repetition[,]” and “provid[ing] cues to let him know of important information to come.”[44] The team recognized that the Student’s “receptive-expressive speech-language challenges may potentially and negatively affect his ability to access and/or respond to class materials and discussions” and his “[d]elays in processing information, difficulties in decoding and comprehension at grade level... are all impacting [his] participation in the general education curriculum.”[45] The August 11, 2021 IEP still recommended the same 12:1:1 program for core topics (math, English language arts (ELA), social studies, and an sciences) that had been provided in the previous four IEPs.[46] In his final report card for the 2020-2021 school year, the Student received “proficient” scores in mathematics but “needs improvement” in ELA.[47]
The Department also offered the comprehensive report of the Neuropsychologist who evaluated the Student on November 21, 2019, December 10, 2019, December 18, 2019, January 7, 2020, and on January 8, 2020.[48]
The Parent’s Case
Neuropsychologist The Parent called the Neuropsychologist who evaluated the Student in 2019 and 2020 to testify.[49] The Neuropsychologist recalled that the Parent had approached her with concerns that the Student had a history of academic challenges and “concerns about his ability to sustain attention and his frustration tolerance.”[50] She performed three evaluation sessions with the Student and conducted one classroom observation of the Student.[51] She reviewed his educational records before performing her evaluations, including past IEPs and past evaluations, including neuropsychological and psychoeducational assessments.[52]
She referred to her report, which had been admitted with the Department’s evidence, in conjunction with her testimony.[53] With respect to cognitive functioning, she found the Student to be in the “low average” for verbal comprehension, fluid reasoning (solving non-verbal information), working memory, and processing speed.[54] He also exhibited “some receptive language weaknesses” and “his expressive language skills were [an] even greater challenge for him[.]”[55] Specifically, the Student “was at the fifth percentile” for “his ability to create verbal sentences[, which] suggests that he had a lot of difficulty with... creating complete sentences using words presented to him[.]”[56] The Student performed better on his visual memory assessment,[57] but his executive functioning was an area of concern, as he exhibited “challenges with his ability to regulate, manage his behaviors, his emotions, [and] to do things like sustain attention” including “visual and auditory attention.”[58] He also showed variability with his processing speed and his working memory.[59]
With regard to reading and writing abilities, the Neuropsychologist found that the Student presented with “significant difficulties with his phonological awareness[,]” which impacts reading and decoding.[60] His reading was “below the first percentile” and “with regard to his reading comprehension[,] without having those foundational skills in place... he really struggled” and had “significant reading challenges” which were “reflected in his reading comprehension scores.”[61] The Student demonstrated average performance with his writing evaluation, but only when given a significant level of support.[62] The Neuropsychologist noted that the Student could not perform an assessment whereby he was tasked with writing a sentence if he was left to his own. Math was an area of relative strength for the Student, except that the Student would become significantly challenged when math problems were presented in a narrative language format.[63]
At the end of the evaluations, the Neuropsychologist found that the Student had ADHD, a Specific Learning Disorder in the reading and writing, a Language Disorder, and Autism Spectrum Disorder, which she found consistent with an evaluation performed of the Student in 2017 that she reviewed.[64] She also reviewed the Student’s school records and had not seen any progress; based upon her assessment of the Student, his lack of progress after years of being in a DOE community school 12:1:1 program, and her observation of the Student in that program, she was concerned that the Student would fall further behind if he stayed in that program as classes became more difficult, which would also affect his social-emotional state. It was therefore her opinion that the Student should be placed in a small, structured academic program with “a small student-to-teacher ratio specifically, where he can get individualized support” and “in a language enriched environment” where “language supports are integrated into the classroom environment[.]”[65] Moreover, and because of his “frustration tolerance” and “lower self-esteem related [to] his academic performance” and his “significant language weaknesses[,]” as well as his “executive functioning challenges[,]” the Student required an educational placement with “integrated support” that included “support for his academic instruction” as well as “services [for] executive functioning... language supports” and “a holistic approach to his classroom and the use of evidence-based interventions[.]”[66] The Neuropsychologist considered that the Student had been in the DOE 12:1:1 program for years and she “had not seen that he made measurable progress in the areas that were assessed academically, especially as it pertains to reading and writing” and it was therefore her further opinion that “he needed to get individualized remediation outside of school, to further target... those areas of challenge[.]”[67] She added that “if he had remained in the setting and continued to receive the same level of support, he would have continued to struggle significantly and possibly fall even further behind as academic demands increased, as language demands increased, as executive functioning demands increased.”[68]
On cross-examination and further questioning, the Neuropsychologist testified as follows. She agreed that the Student can be a multi-sensory leaner, and that teaching tools that engage different senses, such as visual supports, could benefit the Student if they were integrated into his learning such as charts and smartboards.[69] She did not have experience as a school-age teacher but she was a graduate school adjunct professor.[70] She acknowledged that she could not assess the public school’s long-term teaching goals from the single classroom observation she made of the Student, but she noted that the public school teacher told her that the Student “benefitted from a structured environment”; that he was “motivated by rewards”; that he had been “reading at a first grade level when she evaluated him in September of 2019”; and that “[h]e had difficulty with writing[.]”[71] She believed that the date she delivered her report to the Parent was not necessarily the “date of feedback,” July 30, 2020, as those two events are not related.[72] She could not recall how much time passed from the date she signed it to when it was provided to the Parent.[73] At the time of her classroom observation of the Student, she had conducted other classroom observations of other students, but she could not recall if this was the first time she had observed a student in a 12:1:1 setting.[74]
Private School Principal The Parent produced the Student’s Private School’s Vice President of Educational Operations (VP), who is also a licensed speech-language pathologist.[75] She testified that the Private School is “a private K-12 special education school in NYC” that “serves students with learning disabilities in the areas of reading, writing and math as well as students with attentional, sensory, and socio-emotional challenges.”[76] It offers a “safe and supportive school environment” that utilizes “a small, structured, multisensory, language-based academic program”[77] The curriculum is “aligned with state standards and modified and presented in multiple formats to increase student exposure to material, which aids retention.”[78] The school “creates smaller, skill level reading and math groups containing 4 to 7 students” which “allow[s] for more targeted instruction” and “ensures appropriate remediation and intervention.”[79] The reading program utilizes research-based methodologies including Orton-Gillingham and Wilson Fundations, and the classrooms have “FM-systems installed which enhances the teacher’s voice thereby reducing the effects of background noise so that students can better attend to and process teacher information.”[80] The school’s “goal [is] to maximize student potential in order for them to become confident, successful citizens of their community.”[81] In addition to academic lessons, the Student “participates in three push-in whole group therapeutic classes once per week[,]” a “Writing Lab[,]” a “Study Skills” class, and a “Peer Group/Social Skills class[.]”[82] Finally, the Student “receives a 30-minute 1:1 Connection Time[,]” which “build[s] upon areas of strength as well as develop areas of challenge” and “provide[s the Student] with an opportunity... to make up any potential missed work.”[83] The Principal is familiar with the Student, as he has attended the Private School since September of 2021.[84] In January of 2022, the Private School utilized a remote learning schedule, until January 24, 2022, when it returned to in-person classes.[85] It is the Principal’s opinion that the Private school provides the Student “with the necessary structure and support to enable him to make progress” and he has “grow[n] into a happy, social... student as he adjusted to our school.”[86] The Principal noted that the Parent had paid a deposit of $500.00 towards the 2021-2022 tuition of $74,750.00, and that the Parent was responsible for the remaining balance.[87]
On cross-examination and under additional questioning, the Principal testified as follows. She has not taught the Student but has observed him in class.[88] The Private School is not a State-approved non-public school.[89] Classes are set at a 12:1:1 student/teacher/assistant ratio, but they are between 4:1 and 7:1 for reading and math.[90] The Principal found the Private School to be “the placement that met his needs.”[91] Notwithstanding this, she stated that the Student could still benefit from tutoring because “supplementation is valuable for everybody.”[92]
Private School Teacher The next witness was one of the Student’s teachers at the Private School, who testified a follows. For 2021-2022 school year, the Private School Teacher was first one of his assistant teachers, and then she became his head teacher.[93] She is very familiar with the Student, as he was one of the 12 students in her class for that school year.[94]
The Private School designed a program to meet the Student’s special needs during the 2021-2022 school year, and to “support [the Student’s] learning difficulties, teachers include[d] lessons with visuals, enlarged texts, reference sheets, study guides... opportunities to redo his work, and one-to-one support throughout the day.”[95] The Teacher noted that the Student “require[d] a lot of one-to-one support, especially in writing, and there [wa]s always a teacher readily available to help [the Student] when he need[ed] one-to-one assistance.”[96] The core academic subjects of math and ELA were provided five times per week, in 45-minute sessions each, and he was taught math in a 6:1 setting, ELA in a 5:1 setting, and writing in a 9:1 setting, all with 6th and 7th graders who had similar skill levels.[97]
The “small classes and small school setting” provided the Student with “access to the support he needed to facilitate his social-emotional growth” as well.[98] When the school year began, “he was soft-spoken and struggled to socialize with other students” but the school’s program and structure “helped [him] feel more comfortable, and he began socializing with his peers”; while he “struggles with taking on the perspective of others” he “feels comfortable engaging in conversation” with others “who share similar interests to him[,]” and when there is “a conflict with another student,” a teacher will provide “support [in] considering the other student’s viewpoint and feelings.”[99]
Teachers “assess[ students] at the beginning and end of the school year” and the Student “completed a Reading A-Z benchmark exam to assess his strengths and weaknesses in reading.”[100] Over the course of the year, the Student went from reading at a 3.0 grade level to being “able to read passages at a 3.5 level independently.”[101] He also “demonstrated improvement in his participation, his ability to answer all parts of comprehension questions, and his ability to ask questions to monitor his understanding of a text.”[102] With respect to writing, the Student went from “performing at about a 2.0 grade level... and by the end of the school year he was writing at a 2.5 grade level.”[103] Moreover, at “the beginning of the year, [the Student] wouldn’t advocate for help or participate” but “[a]s the year progressed, [he] became more comfortable self-advocating for teacher assistance, particularly with spelling” and he even went from “struggl[ing] to put [his] ideas on paper” to “now independently add[ing] predicate expanders to his sentences and formulat[ing] a structured paragraph with moderate teacher support.”[104] His math proficiency has progressed as well, from a “mid-4th grade level... in September of 2021 [to] by the end of the school year, he was working at about a 5.0 grade level.”[105] The Teacher recognized his “difficulty with determining the operation and following multiple steps of a word problem” but now he understands “writing numbers in expanded form, multi-digit multiplication[,]...identifying equivalent fractions using visual models[,]” and “complet[ing] long-division problems with and without remainders (3-digit by 1-digit).”[106] The Student still struggles with attention issues, executive functioning (including organization and recall), and in his expressive, receptive, and pragmatic language.[107] Through the use of the small group settings, visualizing strategies, an FM system to minimize background noise, sensory tools, scaffolding, frequent prompting, repetition, chunking of information, checklists and “Thinking Maps,” teacher-facilitated conversations and other forms of 1:1 interaction, however, the Private School Teacher is of the opinion that the Private School “was an appropriate setting for [the Student] for the 2021-2022 school year” and that it “help[ed him] close his learning gaps.”[108] Moreover, and “[g]iven the extent of [his] special education needs, [the Teacher] do[es] not believe he would have made meaningful progress in a larger, mainstream school setting.”[109]
Tutoring Facility Director The next witness was the Director of the Tutoring Facility that would provide the Student with tutoring services. The Director has a Master’s degree in Special Education and a doctorate in General Education.[110] The Tutoring Facility specializes in one-to-one tutoring support for students with special needs.[111] Each student is evaluated to gauge their strengths and weaknesses, utilizing “a battery of academic assessments, including the Wide Range Achievement Test for reading, spelling, and math computation skills[,]” as well as “a writing sample using the Test of Written Language” and “the Qualitative Reading Inventory to assess the student’s reading comprehension skills.”[112] These tests were give to the Student, who showed “a mid-third grade level for decoding, a low second grade level for spelling, and a low fifth grade level for mathematics. He also tested at a mid-second grade level for writing and a fourth grade level for reading comprehension, [which are] all below the expected levels for his grade[.]”[113] The Director also reviewed the Student’s IEP and the Neuropsychologist’s report, and it is her opinion that the Student “is in critical need of one-on-one tutoring in reading and spelling, particularly using the Orton Gillingham method. It is also important that he receive structured, multi-sensory instruction to build his written language, mathematics, and reading comprehension skills.”[114] The Tutoring Facility can “provide tutoring at night and on weekends, as well as during school and summer breaks.”[115] The facility charges $140 per hour, which is “within, if not below, the typical market rate for tutoring companies and individuals in the New York City area[,]” with some charging “$150 per hour or more, and some individuals charg[ing] up to $250 per hour or more for these services.”[116]
On cross-examination and further questioning, the Director testified as follows. She has evaluated as many as 500 students, of which approximately 200 had ADHD, approximately 200 had language disorders, and approximately 100 had Autism.[117] While it is true that a student’s conditions can play a role in why they may not have achieved grade-level performance, the Tutoring Facility “had many, many students who have these types of diagnoses who have received appropriate instruction and services along the way and are at or maybe slightly below grade level[.]”[118]
She acknowledged that she was unaware of the grade level the Student was performing before the most recent IEP because she had not reviewed the earlier IEPs, but she added that, based upon her “extensive experience with students who have similar profiles to” the Student, as well as having “met him myself, evaluated him myself and having thoroughly reviewed his neuropsychological evaluation and his 2021 IEP[,]” the Director was of the opinion that “had he received the right services all along, he would be functioning at a much higher place, especially with reading and writing, than he is now.”[119] She also found it “very telling” that “he was in seventh grade at the time of the IEP [she] reviewed and [he] was functioning at a second grade level for reading and a third grade level for math[.]”[120] With respect to the Student’s tutoring needs, the Director found that the Student is “stronger in math” so the facility “would tailor the instruction more towards reading and writing” with the caveat, however, that he might need more math tutoring as well because “math is very language based now” so “he may have continued difficulty with math given the volume of word problems that are now typically taught.”[121] She acknowledged that she did not come up with the 180 hours of tutoring that the Parent requested, but she would have recommended more, because “he needs a significant amount of remediation.”[122] It is her professional opinion that tutoring outside of the Private School is necessary for the Student to progress academically, that the 180 hours of tutoring being requested is “the minimum [she] would recommend” for the Student, and while the Private School is “a very good placement for him... given that he has such profound academic weaknesses, that it’s just not enough” and he requires the tutoring “to compensate for services that he perhaps did not receive in the past, which led him to be functioning as low as he is now.[123] Finally, while she believes that with 180 hours of tutoring, the Student “would make significant progress[,]” she “would have recommended closer to 360 hours because [she] feel[s] that he has such profound weaknesses.”[124] The Parent The last witness was the Parent, who testified as follows. The Student began kindergarten in 2014, where he exhibited signs of learning difficulties and hyperactivity.[125] She took him to a psychiatrist, who diagnosed the Student with ADHD.[126] The following year, the Student was placed in an Integrated Co-Teaching (ICT) environment for the 1st grade, and by the end of that year, he remained at a kindergarten level in all subjects.[127] He was then provided an IEP for his 2nd grade, which recommended continued ICT with counseling, occupational therapy, and speech therapy.[128]
In May of 2017, she took the Student to a specialist for a psychological evaluation, which resulted in the Student being further diagnosed with a Specific Learning Disorder in reading, written expression, and mathematics, as well as a Language Disorder.[129] The specialist recommended a non-public school that used multi-sensory, evidence-based techniques.[130] She shared these results with the Department.[131] For the following year, the Department changed the Student’s recommendation from ICT to a 12:1:1 program.[132] That summer, another psychologist diagnosed the Student with Autism Spectrum Disorder, which she shared with the Department.[133]
Beginning with the third grade, and then to the fourth grade, and to fifth grade, the DOE offered the Student the same 12:1:1 classroom setting in each IEP, despite him going from a kindergarten level for reading to a first-grade level during that time.[134] The Student was not able to read his homework, let alone make academic progress.[135] She took the Student to the Neuropsychologist, who evaluated the Student from November of 2019 through January of 2020, and who confirmed the diagnoses, and who also recommended “a small classroom and a more specialized setting.”[136] The Parent attended a feedback session with the Neuropsychologist on July 30, 2020, but the report was not given to the Parent because it was not yet finalized.[137]
In September of 2020, when the Student began the 6th grade, he was still in the 12:1:1 program. “A few months later, [she] shared a copy of the [Neuropsychologist’s] evaluation with [the] school and [she] asked for a new IEP meeting to discuss [its] recommendations.”[138] An IEP meeting was held on January 11, 2021, and after telling them that “the current services on his IEP were not helping him meet his academic needs[,]” the team still recommended a 12:1:1 classroom and the team “told [her] that in order for them to consider a non-public school, [she] would need to send them a written request for a re-evaluation.”[139] So on January 14, 2021, she sent an email to the principal of the Student’s Public School, asking for a re-evaluation, noting in that email that she had already shared the Neuropsychologist’s report with them.[140]
Despite now reading at only a 2nd grade level by the end of his sixth grade, the IEP did not meet again until June 23, 2021.[141] It continued to recommend a 12:1:1 classroom, and the Parent was told that they would extend the school year to 12 months for the Student, but that did not end up in the final IEP.[142] The Parent told the IEP team at that meeting that she did not agree with the 12:1:1 recommendation “and made them aware that [she] was going to pursue a non-public school placement for” the Student.[143]
When space became available for the Student at the Private School, she enrolled the Student, in August of 2021.[144] There was one more IEP meeting, on August 11, 2021, whereby the IEP team added the 12-month program but kept the rest the same as in the June 23, 2021 IEP.[145]
Since attending the Private School, the Student has “finally started to make progress. He [can] do his homework independently[.]”[146] Before attending the Private School, the Student “could not read more than a few words at a time. Now, [he] is able to read a paragraph aloud.”[147] He is also “more confident when reading and writing” and “can read chapters [of] books on his own, which he never did before.”[148] He also “no longer becomes frustrated when completing his class and homework.”[149] The Parent earns a salary of $21,018.21 and receives another $134.00 per week in child support.[150] She cannot afford the cost of tuition at the Private School and therefore does not have the ability to front its payment.[151] She paid a $500.00 deposit to the school at the beginning of the 2021-2022 school year but still owes the balance for the tuition.[152]
On cross-examination and further questioning, the Parent testified as follows. She found that under the Private School’s program, the Student has progressed “tremendously” and that “[h]e’s a new student.”[153] She also believes that tutoring is necessary, because even though the Private School “has done a great job on meeting his needs... he’s delayed in a lot of things from the school he was in before that [and] he does need the extra help.”[154] She recalled being in possession of the Neuropsychologist’s report prior to her attended the June 23, 2021 IEP meeting, but she could not recall of she shared it with that IEP team or with the IEP team at the August 11, 2021 meeting, although she believe that her attorney at the time did submit it.[155]
Parent’s Exhibits The Parent’s representative highlighted portions of some of the exhibits in support of the Parent’s claims. The enrollment contract the Parent entered into with the Private School shows that the tuition charged for the 2021-2022 school year was $74,750.00, and it contained a clause stating that if the Parent chose to accept a DOE placement on or before September 15, 2021, she would receive a 75% refund of her first payment and she would be relieved of any further payment.[156]
The Private School’s Mid-Year Progress Report states that for ELA, the Student could “construct a response based on texts or prior knowledge” and that “[a]lthough [he] struggles with attention, his ability to attend has improved to the support of a controlled learning environment[.]”[157] As for writing, the Student had shown he “has a creative mind and has made progress from the beginning of the school year” and while he still had difficulty with attention he “generate[d] creative ideas” when “he [was] focused on the lesson[.]”[158] In the Spring Report, for the end of the school year, the Private School was able to report, with respect to ELA, that the Student “made improvement in his ability to participate, ask questions, and answer prompts” as well as “growth in his ability to retain information.”[159] He was “reading more fluently, and [wa]s improving on his ability to decode unfamiliar words.”[160] He was also now “enoy[ing] writing tasks” and “was able to complete a variety of informational writing activities.”[161] While he still struggled with expressive and receptive language, he “benefit[ted] from prompting, chunking of information, and the use of visuals and graphic organizers” and was “able to expand upon his sentences using predicate expander learned through the Framing Your Thoughts curriculum” and could “add[] detail to is larger writing assignments such as [an] informational paragraph on his favorite food.” (Id.)
The Parent’s representative noted that the Department’s Speech-Language progress reports that show how the Student “was struggling with the same issues from year to year” but the Department’s “goals were substantially the same from year to year” and they “show the lack of progress that he was making at” the Public School.[162] The Social History Evaluation from 2016 also demonstrates how early the Parent reported the Student’s diagnosis of ADHD and his academic struggles to the DOE.[163]
The final exhibit was a series of emails between the Parent’s legal representatives and a DOE employee, which the Parent’s representative argued demonstrates that the Neuropsychologist’s report was submitted to the Department on December 14, 2020.[164] The email from that date shows that there is an attached.pdf document beginning with the Student’s name, and the body of the email states, “I am writing to share a recent evaluation report for [the Student] and to request an IEP meeting.”[165] The Parent’s representative explained that the attachment was the Neuropsychologist’s report,[166] but could not offer any documentary evidence demonstrating that the.pdf was, in fact the report, or corroboration that the report was either or transmitted on December 14, 2020. The Department’s attorney pointed out that the only date on the report itself were the four evaluation dates and the “feedback” date of July 30, 2020.[167]
Closing Arguments
DOE Closing In closing, the DOE attorney contended the following. The Department provided the Student a FAPE, in that the IEPs were reasonably calculated to enable the Student to make progress, as reflected in the present levels of performance, the management needs and the goals. The Public School recommended in the IEPs was the least restrictive environment for the Student, and it was able to implement the IEPs as written. The Department does not dispute that the Student was below grade level in a number of academic areas, but educational progress is not the standard for determining FAPE, and moreover, each of the Student’s diagnosed disabilities was a factor in contributing to why the Student was behind in grade level.
There was also no procedural violation in the IEP teams relying on the August 23, 2017 psychological evaluation in the 2020 IEPs because that evaluation was still less than three years old at the time. The IEP team took the then evaluation into consideration in recommending a 12:1:1 program for ELA, math, social studies, and sciences.
To the extent that the IEPs developed thereafter continued to rely on the 2017 evaluation after it was three years old, and before the 2020 Neuropsychologist’s report was used by the August 11, 2021 IEP team, this is also not a procedural violation because the 2017 psychological evaluation and the 2020 Neuropsychologist’s report were sufficiently similar. Moreover, the 2020 and 2021 progress reports submitted by the counselor and the speech-language therapist note that the Student was making progress, in that he was “responding well to rewards systems” and that he “was now able to verbally state when he doesn’t understand auditory information.”[168] His reports cards also showed that he receive a 3 out of 4 in math, social studies and sciences.
The IEP team changed the Student from a 10-month school year to a 12-month school year between the June 23, 2021 IEP and the August 11, 2021 IEP because they now has access to the Neuropsychologist’s report. Moreover, the August 11, 2021 IEP provided the Student with 3x40 minutes of speech-language therapy and 40 minutes of occupational therapy, while the Private School provided only one 45-minute session of speech-language therapy and 30 minutes of occupational therapy, meaning the Public School offered more services in these respects. Also, both the Public School and the Private School addressed the Student being a multi-sensory learner, including the use of charts, smart boards, and other visual tools. The Department therefore proved that it offered the Student a FAPE.
As for Prong 2 analysis, the Private School was not appropriate for the Student. The Private School’s program was similar to the program offered in the August 11, 2021 IEP. Speech and language were the Student’s most important areas of deficits, and the IEP offered more services in that area than the Private School.
Finally, with respect to the claim of compensatory education, there must be a deprivation of FAPE and there was none here. It must also be designed to provide an educational benefit, not to penalize the school district or to maximize a student’s educational opportunity. There must also be some gross or prolonged deprivation of FAPE. Here there was no deprivation of FAPE, and the Parent has not shown that compensatory services are necessary now. Moreover, the Tutoring Facility Director acknowledged that she only reviewed the most recent IEP and the Neuropsychological evaluation, so she had an insufficient basis to make any conclusions about the Student’s progress over time. It also cannot be true that the Private School is appropriate for the Student but that compensatory education is also necessary. Doing that would be maximizing a Student’s potential, which is not the standard under the IDEA.
Parent Closing In closing, the Parent’s representative argued the following. The Department failed in its burden to prove that the Student was provided with a FAPE for the 2021-2022 school year. It presented no witnesses, and none of its evidence demonstrated that the Student was recommended an appropriate program. In fact, year after year the Student had continuing difficulties and lack of progress but substantially the same program was recommended every year, from the end of 2nd grade through the 6th grade, and despite at the end of 2nd grade that a psychologist found the Student to be functionally illiterate and recommended a small non-pubic school for the Student. The IEP team refused to recommend such a program for the Student, year after year, despite his continual deficits and lack of progress.
In 2019 and 2020, the Neuropsychologist evaluated the Student and prepared her report, which showed reading and writing scores at or below the first percentile. Finding no measurable progress in the Student at the Public School, the Neuropsychologist also recommended a small structured school with a language enriched program and intensive remediation for the Student. Her report was transmitted to the DOE on December 14, 2020.
The IEPs listed services that were clearly not meeting the Student’s needs. He continually did not make his annual goals, and he struggled with decreasing self-confidence. Notwithstanding this, the Department recommended the same program for five school years in a row, even though it proved to be unsuccessful for the Student. Therefore, the Department has deprived the Student of a FAPE under Prong 1 analysis.
As for the Parent’s burden under Prong 2, the Private School was appropriate, in that it met his special education needs and he has been making measurable progress since attending the Private School for the 2021-2022 school year. The equities also favor an award to the Parent under Prong 3 analysis. The Parent shared the evaluations she received and she participated at the IEP meetings. She continually communicated her concerns about the sufficiency of the 12:1:1 program the Department continually offered, and she timely consented to the Department’s request for more evaluations.
Finally, the Student is entitled to compensatory education because it is necessary in this case to remedy an earlier deprivation during the Student’s education. Here, the Student requires substantial remediation because of the five years that the Department deprived him of an opportunity to make meaningful progress. At the August 11, 2021 IEP, it was noted that his reading was over four grade years behind.[169]
Credibility
Upon considering the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them all relevant and representative of the facts for which they were offered. The weight I afforded them will be reflected in the analysis. As for the witnesses, I found no reason to doubt the veracity of their statements or the earnestness of their relevant opinions, and therefore find all the witnesses and their testimonies credible. The relative weight I afford them will likewise be reflected in the analysis.
Legal Framework The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[170] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.[171] When the education district complies with the procedural requirements set forth in the IDEA, and when the IEP developed through those procedures is reasonably calculated to enable the student to receive educational benefits, a FAPE has been established.[172]
Unilateral Placement The U.S. Supreme Court has determined, through a three-prong test, that a board of education may be required to pay for educational services obtained for a child by the child's parent who unilaterally places the child in a private placement, if (1) there is no FAPE, in that the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim.[173] These prongs have become known as the Burlington/Carter standard in a tuition reimbursement case.[174] In line with the standard, school districts have the burden of proof, including the burden of persuasion and burden of production as to Prong 1, while the parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of proof as to the appropriateness of such placement in Prong 2.[175] The standard required is a preponderance of the evidence.[176]
As part of its Prong 1 case, the DOE is not required to show that it attempted to “maximize” the potential of students with disabilities.[177] Still, the IEP it developed must include a statement of the student's present levels of academic achievement and functional performance, establish annual goals designed to meet the student's needs resulting from the student's disability and enable the student to make progress in the general education curriculum, and must provide appropriate special education and services.[178] Appropriateness means that the IEP accurately reflects the results of evaluations to identify the Student's needs,[179] and then provides for the utilization of sufficient special education services,[180] and then is properly implemented.[181] In order to demonstrate a FAPE, the Department must offer “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”[182] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[183]
Even if the Department’s actions are substantively consistent with FAPE, a second inquiry may be necessary, specifically into the Department’s compliance with the statutory and regulatory procedural requirements. Such inadequacies do not automatically entitle a parent to reimbursement, but procedural violations may if “they ‘impeded the child's right to a [FAPE],’ [or] ‘significantly impeded the parents' opportunity to participate in the decisionmaking process,’ or ‘caused a deprivation of educational benefits.’"[184] It has further been held that the cumulative effect of multiple procedural violation may constitute a denial of FAPE, even if the violations considered individually do not.[185]
Upon review of the Prong 1 factors, if the Department proves that the recommended program offers a free and appropriate education, the analysis is over, and the Student is not entitled to what is requested in the DPC. If, however, it is determined that the Department did not establish a FAPE, the burden shifts to the Parent to prove Prong 2. To accomplish this, the Parent must establish that the program they have selected is appropriate to meet their child’s needs.[186] While the unilateral placement must provide “educational instruction specifically designed to meet the unique needs of the student,”[187] it “need not meet the IDEA definition of a free and appropriate public education” or even “state education standards or requirements.”[188] Parents are not barred, for example, from an award of tuition reimbursement if the selected program does not employ certified special education teachers or develop its own IEP for the student.[189] In fact, no one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”[190] With respect to Prong 3, when deciding whether equities support the claim, including whether the remedy should be barred altogether or modified in some way, IHOs must consider a multitude of relevant facts. These can include whether the cost of the private education was unreasonable,[191] whether the parents failed to make their child available for evaluation by the district,[192] or whether actions taken by the parents were unreasonable.[193] The Second Circuit Court of Appeals has also looked at whether the parents should have availed themselves of needs-based scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent of the private school in generating the tuition, or whether the arrangement with the school was fraudulent or collusive.[194] “Important to the equitable consideration is whether the parents obstructed or were uncooperative in the school district’s efforts to meet its obligations under the IDEA.”[195] Equities have favored parents when they cooperate in good faith at all times with the DOE, including participating in the CSE meeting, visiting proposed placements, and notifying the district of unilateral placement.[196]
Specifically, as to notifying the DOE, reimbursement may be reduced or denied if the parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school or by written notice ten business days before such removal. The notice must state that the parent is rejecting the proposed placement and must include their concerns, as well as their intent to enroll the student in a private school at public expense.[197] It is an important step, because the notice “gives school districts an opportunity to discuss with parents their objections to the IEP and to offer changes to the IEP designed to address those objections – all before the parents enroll their child in a private school and file a due process complaint.”[198] In a case where "parents unreasonably reject the school district's proposed changes to the IEP, or are otherwise uncooperative, courts and hearing officers are fully empowered to deny them reimbursement,"[199] as the parents of students enrolled in private school are not exempted from ten-day notice requirements.[200]
It is against this backdrop that I analyze the circumstances of the Student, the IEP developed for the Student and, if necessary, the Parent’s unilateral placement and equitable factors. If the Parent prevails, I will address whether a tuition award is warranted, as requested in the DPC. In considering an tuition award, I am mindful that I have at my disposal “various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies,”[201] with the only limitation being that the remedy “be appropriate in light of the purpose of the Act,”[202] and that damage awards are not available under the IDEA.[203]
Compensatory Education
Compensatory education is an equitable remedy tailored to meet the unique circumstances of each case.[204] It must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[205] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award 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.”[206] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[207] The compensation can also be crafted by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation) approach. Courts have noted, however, that a “flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student’s] educational problems successfully.”[208] In New York, when there is a lack of FAPE the a parent or guardian seeks a compensation award, the burden lies with that district to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[209] Even where DOE fails to offer its “position regarding the appropriate compensatory education remedy... an outright default judgment awarding compensatory education... and all of the relief requested without question... is a disfavored outcome[,] even where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[210] The specific award sought must be scrutinized because “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[,]”[211] and because “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”[212] Also, an full award may be tempered when a student “did make some advancement over the course of [their] time in... school, even though [they] were not presented with what [they] were due under [the] IDEA.”[213]
Analysis
Tuition Reimbursement
Prong 1 – FAPE For the past four IEPs, the Student has been classified by the CSE as a student with “Other Health Impairment,”[214] specifically ADHD, Autism Spectrum Disorder, Language Disorder, and Specific Learning Disorder in reading and writing. For the 2021-2022 school year, the Student attended the Private School, with a student/teacher/assistant ratio of between 6:1 and 4:1 in the core subjects of ELA and math, with the concomitant opportunity for significant individualized attention, as well as the provision of comprehensive related services.[215]
The Department contends that the IEPs developed for the 2020-2021 and 2021-2022 school years met the standards of a FAPE, especially in that they provided the Student with a 12:1:1 program in a special education classroom with supports including multi-sensory learning techniques and tools, and related services that were described as even more than what the Private School offered. Upon my review of the documents,[216] I agree that they contained required information, including a statement of the student's present levels of academic achievement and functional performance, annual goals, management needs, recommendations and other options considered.[217] I cannot, however, conclude that they were “reasonably calculated”[218] to produce meaningful benefit, for the following reasons.
In May of 2017, when the Student was in 2nd grade, a psychologist evaluated the Student and recommended a non-public school that used multi-sensory, evidence-based techniques.[219] The Parent shared these results with the Department,[220] and instead of providing for such a placement for the Student, the IEP team at the time recommend a 12:1:1 program for the first time, beginning with the Student’s 3rd grade (the 2017-2018 school year). Three years later, for the 2019-2020 school year, CSE continued to recommend the same 12:1:1 program, despite the fact that the Student continued to read at a first grade level.[221]
The Department failed to properly consider and address the most serious element of the Parent’s assertions – that it was the classroom setting that prohibited the Student from progressing, and that, notwithstanding that lack of progress, the Department steadfastly would not recognize that the 12:1:1 program was inadequate for the Student’s needs. At the hearing, the Department suggested that his lack of progress over the years could be attributed to the deficits related to his multiple diagnoses. It was the Department’s burden to demonstrate this, however, at least with respect to Prong 1, and the Department offered nothing to establish why it stuck with the insufficient classroom setting and program after being told by experts twice (in 2017 and then again sometime in 2020 or 2021, but definitely before the most recent IEP was developed) that the Student required a small, non-public school that could give him the constant individualized attention and small group support that had been denied each year since 3rd grade, and the same program was offered for his 7th grade in the 2021-2022 school, in the August 11, 2021 IEP, when it was undisputed that the team had access to the 2020 Neuropsychologist’s report.
To the extent that the Department argued at the hearing that the Student had, in fact, progressed, I find this position unavailing for two reasons. First, under the Department’s program, from the Student’s 2nd grade to 7th grade, he was reading at a 1st grade for most of that time, up to and including “end of first” grade level in January of 2021 (already in his 6th grade during the 2020-2021 school year), and was finally able achieve “end second/beginning third” reading level by the end of that school year, before the August 11, 2021 IEP was developed. This demonstrates that the Student was capable of progress, but that the program was affecting the Student’s ability to advance, taking from 2nd grade to 6th for him to go from a 1st grade reader to an end of 2d/beginning of 3rd grade reader, which is effectively four school years to advance a little over one year of grade-level reading.[222] Moreover, with respect to writing, the Department was unable to assess him because the Student would not turn in writing assignments, telling the teacher that “this is hard subject for him” and the teacher resorted to “ask[ing the Student] to dictate sentences to her.”[223] This is “trivial advancement” at best.[224]
Second, the Parent refuted the notion that the Student was not capable of more accelerated advancement. After beginning to attend the Private School, the Student went from reading at a 3.0 grade level to being “able to read passages at a 3.5 level independently.”[225] He also “demonstrated improvement in his participation, his ability to answer all parts of comprehension questions, and his ability to ask questions to monitor his understanding of a text.”[226] With respect to writing, the Student began turning in assignments, and went from “performing at about a 2.0 grade level... [to] by the end of the school year... writing at a 2.5 grade level.”[227] I also note, given his difficulties with writing under the Public School program, the importance of him beginning at the at the Private School, where he went from someone who “wouldn’t advocate for help or participate” to someone who, “[a]s the year progressed... became more comfortable self-advocating for teacher assistance, particularly with spelling” and even went from “struggl[ing] to put [his] ideas on paper” to “now independently add[ing] predicate expanders to his sentences and formulat[ing] a structured paragraph with moderate teacher support.”[228]
On this record, I cannot agree that the Student was not capable of more achievement due to his deficits, and thus that the program designed by the CSE adequately addressed his needs and therefore was more “likely to produce progress, not regression.”[229] While the Department may have demonstrated some trivial advancement, the IEPs developed for the 2020-2021 and 2021-2022 school years were nonetheless not “reasonably calculated to provide... ‘meaningful’ benefit[,]”[230] the standard of appropriateness. I therefore conclude that the Department failed to prove it provided the Student with a FAPE for the years in question; the DOE has failed to meet its burden under the first prong of the Burlington/Carter standard.[231]
Prong 2 – Appropriateness of Unilateral Placement
Having determined that DOE did not offer the Student a free and appropriate education, I must next turn to the Parent, who “bear[s] the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[232] A “private placement is only appropriate if it provides ‘educational instruction specifically designed to meet the unique needs of a [disabled] child.’”[233] The Parent rejected the August 11, 2021 recommendation of the CSE and instead enrolled the Student in the Private School. She offered into evidence the school’s enrollment contract,[234] the Student’s progress reports,[235] the school’s remote and hybrid program description,[236] and the school schedule.[237] The documents detail how the Private School is a dedicated full-time special education school that “serves students with learning disabilities in the areas of reading, writing and math as well as student with attentional, sensory, and socio-emotional challenges.”[238] Importantly, the school offers the very “small, structured, multisensory, language-based academic program”[239] that the psychologist recommended in 2017 and that the Neuropsychologist recommended in 2020. In fact, the Private School taught ELA in the 5:1 setting, math in a 6:1 setting, and writing in a 9:1 setting, all with 6th and 7th graders who had similar skill levels.[240] The “smaller, skill level reading and math groups... allow[s] for more targeted instruction” and “ensures appropriate remediation and intervention.”[241] In addition to the smaller classroom setting, the Private School offers an array of extra supports, even beyond related services. The reading program utilized research-based methodologies including Orton-Gillingham and Wilson Fundations, and the classrooms have “FM-systems installed which enhances the teacher’s voice thereby reducing the effects of background noise so that students can better attend to and process teacher information.”[242] There is “Writing Lab[,]” a “Study Skills” class, and a “Peer Group/Social Skills class[,]”[243] as well as a “30-minute 1:1 Connection Time” that “build[s] upon areas of strength as well as develop areas of challenge” and “provide[s the Student] with an opportunity... to make up any potential missed work.”[244] All of this proved critical to the Student, as the Private School Teacher noted that he “require[d] a lot of one-to-one support, especially in writing, and there [wa]s always a teacher readily available to help [the Student] when he need[ed] one-to-one assistance.”[245] The “small classes and small school setting” provided the Student with “access to the support he needed to facilitate his social-emotional growth” as well.[246] When the school year began, “he was soft-spoken and struggled to socialize with other students.” The school’s program and structure “helped [him] feel more comfortable, and he began socializing with his peers.”[247] In fact, he has “grow[n] into a happy, social... student as he adjusted to [the] school.”[248]
As already discussed Prong 1 above, the Student has shown increased academic progress since attending the Private School. Over the course of the year, the Student went from reading at a 3.0 grade level to being “able to read passages at a 3.5 level independently.”[249] He also “demonstrated improvement in his participation, his ability to answer all parts of comprehension questions, and his ability to ask questions to monitor his understanding of a text.”[250] With respect to writing, the Student went from declaring that writing was his least favorite subject “because... I don’t know how to write it and I get confused”[251] and not turning in any assignments while at the Public School, to “performing at about a 2.0 grade level” when he entered the Private School, to “by the end of the school year... writing at a 2.5 grade level.”[252] His math proficiency has progressed as well, from a “mid-4th grade level... in September of 2021 and by the end of the school year, he was working at about a 5.0 grade level.”[253] The Parent added that the Student has “finally started to make progress” and can “do his homework independently[.]”[254] Before attending the Private School, the Student “could not read more than a few words at a time. Now, [he] is able to read a paragraph aloud.”[255] He is also “more confident when reading and writing” and “can read chapters books on his own, which he never did before.”[256] He also “no longer becomes frustrated when completing his class and homework.”[257]
“[E]vidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA.”[258] It is, however, relevant to the inquiry as to whether “the placement provides educational instruction specially designed to meet the unique needs of a [disabled] child, supported by such services as are necessary to permit the child to benefit from instruction.”[259] Given the degree to which the Student had struggled academically, socially, and emotionally, all of which called for special attention and a modified curriculum and significant supports, the program described in the documents and by the Private School’s witnesses clearly meets this standard. The school provides the exact type of smaller setting with frequent small group support to aid in the Student’s learning and focus. The Student’s Progress Reports in evidence[260] further corroborate the Private School Principal and Private School Teacher’s testimonies regarding the amount of progress the Student achieved during the school year at the Private School. I therefore conclude, on this record, that the program chosen by the Parent was appropriate to meet their child’s needs,[261] and that the Prong 2 of the Burlington/Carter analysis is satisfied.
Prong 3 – Equitable Considerations
Finally, I must weigh pertinent equitable factors. I note first that the Department presented no evidence of the Parent having committed any act that would equitably weigh against her in this decision, and the Department made no arguments in closing as to whether there were any equitable factors weighing in favor of the Department.
Generally equities can favor the parents when they cooperate in good faith and properly notify the district of the unilateral placement.[262] Here, the Parent attended and contributed to all of the IEP meetings for the IEPs in evidence.[263] The two evaluations she obtained, in 2017 and in 2020, were shared with the Department, with the latter being in the possession of DOE at least before the most recent IEP was developed. Through her legal representatives, she also filed a timely TDN on August 27, 2021,[264] which was after the August 11, 2021 IEP,[265] and before the start of the 2021-2022 school year.[266]
Furthermore, the Department made no claim and provided no evidence to show that the tuition charged was unreasonable,[267] that the parents failed to make their child available for any district evaluations,[268] or that there was any collusion between the Parent and the Private School.[269] The Parent signed enrollment contract with the Private School on August 11, 2021, the same day as the final IEP meeting, when the Department made clear that it was still going to offer the same 12:1:1 classroom setting for the Student that had for years not worked.[270] She had, however, already informed the Department, at the previous, June 23, 2021 meeting, of her intent to place the Student at a private school.[271] I note also that the Private School contract permitted her to withdraw from the tuition payment obligation if the Department had offered the Student a program that the Parent found acceptable by September 15, 2021.[272] On this record, therefore, I find that the third prong of the Burlington/Carter standard has been established in favor of the Parent.
Remedy of Tuition
Where a Parent is financially unable to pay for tuition, the tuition funding may be ordered as a direct payment to the educational institution rather than directly to the Parent.[273] As the Burlington/Carter factors have all been decided in the Parent’s favor, a full tuition award is warranted. The evidence established that for the 2021-2022 school year, the Private School charged a tuition of $74,750.00,[274] of which the Parent paid $500.00 as a deposit.[275] The Parent earns $27,986.21 per year,[276] which I find is clearly not enough for the Parent to be able to afford the tuition, as it is more than two-and-a-half times her annual income. I will therefore award the Parent the remaining balance of $74,250.00, to be funded directly to the Private School.
Compensatory Education The Parent has requested 180 hours of 1:1 tutoring as a compensatory education remedy for the lack of sufficient education and progress the Student experienced over the years. The DPC does not clearly state how far back this deprivation began, but it asserts that the denial of FAPE included “at least” the 2020-2021 and 2021-2022 school years.[277] It has already been determined that DOE denied the Student a FAPE. Since the deprivation caused by the previous denials affected the Student for years and continued to leave the Student behind during the 2021-2022 school year, notwithstanding that he was not in an appropriate program, I must determine whether the supplement education of tuition will “make up” for those past denials of FAPE,[278] and if so, whether the amount of hours requested by the Parent is an “overwhelming quantity[,]”[279] or if it has the effect of “punish[ing the] school district[.][280] I will also concentrate only on the compensation due, if any, based upon what the Student was owed for the deprivations during the 2019-2020 and 2020-2021 school years.[281]
Compensatory education may take the form of tutoring.[282] Here, the Tutoring Facility Director, the Private School Principal and the Parent’s testimonies were consistent and with the exhibits in describing how the Student had fallen substantially behind his peers over the five school years from 2nd grade to 7th grade due to the insufficient programs the Department had during that period. The Tutoring Facility Director, who has evaluated as many as 500 students (approximately 200 of which had ADHD, approximately 200 had language disorders, and approximately 100 had Autism),[283] gave the Student a variety of tests to evaluate his reading, writing, and math skills, and concluded that he was well “below the expected levels for his grade[.]”[284] Based upon her “extensive experience with students who have similar profiles to” the Student, as well as having “him myself and having thoroughly reviewed his neuropsychological evaluation and his 2021 IEP[,]” the Director was of the opinion that “had he received the right services all along, he would be functioning at a much higher place, especially with reading and writing, than he is now.”[285] I have credited all of this evidence, and I now determine that it establishes that the Student is owed tutoring, to make up for the many hours of more appropriate learning he should have received over the years.
As to the amount of hours of tutoring that is necessary to compensate the Student, I choose to apply the “qualitative” approach, which focuses on the needs of the Student in light of what was denied, as it is a more “flexible approach, rather than a rote hour-by-hour compensation award, [and therefore] is more likely to address [the student’s] educational problems successfully.”[286] I have credited the testimony of the Tutoring Facility Director, and agree with her that 180 hours of tutoring was the minimum the Student required, and that even though she did not normally apply ranges to student’s tutoring needs, it was her opinion that even though the Student “would make significant progress” with 180 hours, she “would have recommended closer to 360 hours because... he has such profound weaknesses.”[287] I will take this into account in calculating my award, and I also find that 180 hours is not “overwhelming quantity[,]”[288] or that it has the effect of “punish[ing the] school district[.][289] The Department first recommended a 12:1:1 program for the 2017-2018 school year, the Student’s 3rd grade.[290] The Student remained at the 1st grade reading level until January of 2021, as noted in the August 11, 2021 IEP, while the Student was still in 6th grade.[291] I find it reasonable to conclude from this that the deprivation corresponded to the Student’s lack of progress during these years. Towards the end of the 6th grade, the Student began reading at an end of 2nd/beginning of 3rd grade level, which is the only evidence of progress in the record.[292] On this record, therefore I find that the Student was entitled to full compensation for the three-and-a-half school years he experienced no progress (2017-2018 [3rd grade], 2018-2019 [4th grade], 2019-2020 [5th grade], and the Fall of 2020 [6th grade], before January 2021, when his reading level began to increase), and that he is entitled to partial compensation for the Spring of 2021, when he progressed somewhat in reading, albeit still at least three grade levels behind. I apply partial compensation for this last period because compensation may be affected when a student “did make some advancement over the course of [their] time in... school, even though [they] were not presented with what [they] were due under [the] IDEA.”[293] I am also mindful, however, that the problems caused by unchanging circumstances would exacerbate as time goes by. A 6th grader reading at a 1st grade level is in a much worse position than a 3rd grader reading at a 1st grade level. The effects of these deprivations obviously carried over into the 2021-2022 notwithstanding that the Student was now receiving and appropriate program.
In consideration of the above, I find as follows. The Student would have in actuality have received the most benefit if 360 hours were awarded, as recommended by the Tutoring Facility Director. While I will not provide more hours than the Parent asked for under the circumstances of this case, I certainly may consider the highest potential number in calculating what the Student should have received for each year of deprivation, up to 180 hours. Given that the deprivation was made worse over time, I will apply it as a sliding scale, where by the end years caused more than twice as much of the deprivation as the first years. Therefore, I will apply the following formula:
School Year (grade) % of Deprivation Hours to Compensate
2017-2018 (3rd) 10% 36
2018-2019 (4th) 20% 72
2019-2020 (5th) 30% 108
2020-2021 (6th) 30%[294] 108
On the above percentages, the Student would have been entitled 90% of 360 hours at most (324 hours), cut down by my limiter that I will only include the deprivations caused by the 2019-2020, and 2020-2020 school years (totaling 60% of 360 hours, or 216 hours), and also cut down by the Parent’s request of 180 hours. Given that I would have awarded 324 hours (90% of 360) if the law and Parent’s request would have permitted, and given that 180 is less than 324 hours and 216 hours, I find it sufficient and warranted to grant the Parent’s request for 180 hours of tutoring, to be applied for the Student as described in the record.
I further find that it should not take more than two school years for the Student to receive 180 hours of tutoring, and that the Department shall only be responsible for payment to the Tutoring Facility the rate of $140.00 per hour[295] for tutoring services performed by the end of the 10-month, 2023-2024 school year.
Remaining Contentions To the extent any further contentions have been made by the parties that are not addressed in this decision, I have found 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 claims or relief not specifically discussed in this decision are dismissed with prejudice, or denied, respectively.
DECISION AND ORDER
Upon the foregoing, it is hereby,
Ordered, that the New York City Department of Education shall make payment to the Parent in the amount of $500.00, and shall directly fund to the Private School the remaining balance of the $74,750.00 aggregate tuition obligation for the Student’s placement at the Private School for the 2021-2022 school year, in the amount of $74,250.00; and it is further, Ordered, that the New York City Department of Education shall fund, to the Tutoring Facility, compensatory education in the form of up to 180 hours of tutoring services that it provides to the Student, including services it provides any time, including weekdays, weekends, holidays, or during school vacations, but not for any such services provided after the last day of the 2023-2024 ten-month school years, at a rate of $140.00 per hour, to be paid within 30 days of a reasonably acceptable invoice; and it is further, Ordered, that the New York City Department of Education shall fund the cost of the above compensatory education in the form of the cost of a Metrocard public transportation to and from the Tutoring Facility, for the Student and the Parent or other authorized adult who takes the Student to and/or from the Tutoring Facility before and after each such tutoring service session; and it is further, Ordered, that the New York City Department of Education Implementation Unit shall authorize the services hereby ordered, within fifteen (15) days.
So Ordered.
___________________ Dated: September 11, 2022 Richard J. Zeitler, Jr. (signed electronically)
Impartial Hearing Office
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
Individualized Education Program (IEP)
03/18/2020
26
2
IEP Attendance Page
03/18/2020
1
3
Speech and Language (S & L) Referral
09/14/2019
1
4
S & L Progress Report
03/29/2020
4
5
Counseling Progress Report
03/30/2020
2
6
Prior Written Notice
03/30/2020
4
7
Special Education Remote Learning Plan
03/31/2020
2
8
IEP
01/11/2021
24
9
Special Ed. Program Adaptations Document (PAD) for Blended and Remote Learning
09/18/2020
3
10
Related Service Adaptations, Blended and Remote Learning
10/09/2020
3
11
Related Service Adaptations, Blended and Remote Learning
12/09/2020
3
12
IEP
06/23/2021
24
13
Special Education PAD for Blended and Remote Learning
01/12/2021
4
14
Prior Written Notice
03/19/2021
2
15
Student Progress Report
03/19/2021
2
16
Level 1 Assessment. Student Interview
06/27/2021
4
17
IEP 06/23/2021 25 18 IEP Attendance Page 06/23/2021
1
19
Prior Written Notice
06/25/2021
9
20
Final Report Card for 2020-2021 School Year
(no date)
1
21
IEP
08/11/2021
26
22
IEP Related Documents
08/11/2021
4
23
IEP Attendance Page
08/11/2021
1
24
Occupational Therapy (OT) Evaluation
07/28/2021
7
25
Middle / High School OT Evaluation
08/03/2021
9
26
Prior Written Notice
08/13/2021
11
27
[Redacted] Neuropsychological Evaluation
07/30/2020
21
28
Assistive Technology Reports
07/12/2021
18
29
Student Progress Report
06/23/2021
3
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A
Impartial Hearing Request
06/14/2022
7
B
Ten-Day Notice
08/27/2021
5
C
Private School Enrollment Contract
09/23/2021
5
D
Private School Fall Progress Report
11/2021
11
E
Private School Midyear Progress Report
02/2022
13
F
Private School Spring Progress Report
05/2022
15
G
Private School Remote and Hybrid Program Description
(no date)
3
H
Private School Class Schedule
(no date)
1
I.
Tutoring Facility Assessment
08/09/2022
1
J Speech and Language Student Progress Report 01/11/2021 3
K Individualized Education Program 04/15/2019 17
L Speech and Language Student Progress Report 04/01/2019 2
M Speech and Language Student Progress Report 04/16/2018 2
N Psychological Evaluation 08/23/2017 6
O Speech and Language Student Progress Report 05/22/2017 3
P Neuropsychological Evaluation 05/16/2017 14
Q WISC-IV and WIAT-II Interpretive Report 06/02/2016 14
R Social History Evaluation 05/12/2016 6
S Parent Attorney 2 and DOE Correspondence 12/23/2020 5 Aff. Affidavit of Private School Principal
08/09/2022
5
Aff.
Affidavit of Tutoring Facility Director
08/10/2022
3
Aff.
Affidavit of Parent
08/12/2022
8
Aff.
Affidavit of Private School Teacher
08/12/2022
6
IHO EVIDENCE
Exhibit
Title
Date
Pages
I
Pre-Hearing Conference Summary and Order
08/01/2022
3
II
Order of Extension
08/25/2022
1
III
Post-Hearing Submissions and Scheduling Order
08/25/2022
1
Footnotes
[1] See 20 U.S.C. § 1415(f), and New York State Education Law §§ 4404(1) and 3602-c (2)(b)(1); see Ex. A.
[2] See Ex. A-6.
[3] Id.
[4] See Ex. A-7.
[5] See id.
[6] See Tr. at pp. 29 to 30.
[7] See IHO Ex. I.
[8] See IHO Ex. II.
[9] See IHO Ex. III.
[10] See Exs. 1 through 29, and Exs. A through S.
[11] The Neuropsychologist’s testimony was completely live, while the remaining witnesses testified via affidavit with live appearances for further questioning, except for the Private School Teacher, for whom the Department’s Attorney had no questions.
[12] See Ex. A-1 and A-6.
[13] See Ex. 27-1.
[14] See Ex. 27-17; see also Ex. N-6, and Tr. pp. 124 to 126.
[15] See Ex. A-2 to A-3.
[16] See id.
[17] See Ex. A-3 to A-4.
[18] See id.
[19] See Ex. A-5; see also Ex. 8-16 to 8-17.
[20] See Ex. A-5 to A-6; see also Ex. 17-17 to 17-18, and Ex. 21-16 to 21-18.
[21] Ex. 21-4.
[22] Ex. 21-5.
[23] Id.
[24] See Ex. 21-24.
[25] See Ex. 26-1.
[26] See Ex. B.
[27] See Tr. 33 to 35.
[28] See Tr. 34 to 35.
[29] See Exs. 6, 14, 19, and 26.
[30] See Tr. 36 to 37.
[31] See Exs. 1, 8, 12, and 21.
[32] Ex. 1-2.
[33] Ex. 11.
[34] Id.
[35] Id.
[36] Ex. 21-3.
[37] Id.
[38] Ex. 17-2.
[39] Ex. 17-2 and Ex. 21-3.
[40] See Ex. 17-3 to 17-4, and Ex. 21-4.
[41] Ex. 17-5.
[42] Id.
[43] Id. at 21-5.
[44] Ex. 17-7, and Ex. 21-6.
[45] Id. at 21-6.
[46] See Ex. 17-17 to 17-18, and Ex. 21-16 to 21-17.
[47] See Ex. 20.
[48] See Ex. 27-1.
[49] See Tr. at pp. 108 to 110.
[50] Tr. at pp. 111 to 112.
[51] See Tr. at pg. 112.
[52] See id.
[53] See Ex. 27.
[54] See Tr. at pg. 116; see also Ex. 27-6.
[55] See Tr. at pp. 117 to 118; see also Ex. 27-7.
[56] See Tr. at pg. 118; see also Ex. 27-7.
[57] See Tr. at pg. 119.
[58] See id. at pg. 120.
[59] See id.
[60] See Tr. at pg. 121; see also Ex. 27-12 and 27-14.
[61] Tr. at pg. 122; see also Ex. 27-12 and 27-14.
[62] See Tr. at pg. 122 to 123.
[63] See id. at pg. 123 to 124.
[64] See Tr. at pp. 124 to 126; see also Ex. 27-17.
[65] Tr. at pg. 128 to 129; see also Ex. 27-17.
[66] Tr. at pg. 130.
[67] Id. at pg. 134.
[68] Id.
[69] See id. at pp. 141 to 142.
[70] See id. at pp. 144 to 145.
[71] Tr. at pp. 145 to 146; see also Ex. 27-5.
[72] Tr. at pp. 148 to 149.
[73] See Tr. at pp. 149 to 150, and at pg. 152.
[74] See Tr. at pp. 155 to 156.
[75] See Principal Affidavit (Pr. Aff.) ¶ 1.
[76] Pr. Aff. ¶ 5.
[77] Id. ¶¶ 6 and 7.
[78] Id. ¶ 19.
[79] Id. ¶ 20.
[80] Id. ¶¶ 15 and 18.
[81] Id. ¶ 6.
[82] Id. ¶ 25.
[83] Id. ¶ 26.
[84] See id. ¶ 22.
[85] Id. ¶¶ 27 to 29.
[86] Id. ¶¶ 30 to 31.
[87] See id. ¶ 33.
[88] See Tr. at pp. 53 to 54.
[89] See id. at pp. 54 to 55.
[90] See id. at pg. 56, and at pp. 68 to 69.
[91] See id. at pg. 66.
[92] Id. She also agreed that if the Student received “additional programming outside of the” Private School, that such “additional programming would be maximizing his potential as an eighth grade student. Id. at pp. 67 to 68.
[93] Private School Teacher Affidavit (PST Aff.) ¶¶ 4 and 6.
[94] PST Aff. ¶ 7.
[95] Id. ¶ 13.
[96] Id.
[97] See id. ¶¶ 10 and 14.
[98] Id. ¶ 9.
[99] Id. ¶ 8.
[100] Id. ¶ 15.
[101] Id. ¶ 16.
[102] Id.
[103] Id. ¶ 18.
[104] Id.
[105] Id. ¶ 20.
[106] Id.
[107] Id. ¶¶ 23 to 25.
[108] Id. ¶¶ 23 to 26.
[109] Id. ¶ 26.
[110] Tutoring Facility Director Affidavit (TFD Aff.) ¶ 5.
[111] Id. ¶ 3.
[112] Id. ¶¶ 7 and 9.
[113] Id. ¶ 18.
[114] Id. ¶¶ 19 to 20.
[115] Id. ¶ 23.
[116] Id. ¶ 23.
[117] Tr. at pp. 86 to 87.
[118] Id. at pp. 87 to 88.
[119] Id. at pp. 88 to 89.
[120] Id. at pg. 90.
[121] Id. at pg. 93.
[122] Id. at pp. 93 to 94.
[123] Id. at pp. 95 to 96.
[124] Id. at pg. 98.
[125] See Parent Affidavit ¶ 6
[126] See id.
[127] See id. ¶ 7.
[128] See id. ¶ 10.
[129] See id. ¶ 12.
[130] See id. ¶ 13.
[131] See id.
[132] See id. ¶ 14.
[133] See id. ¶ 16.
[134] See id. ¶¶ 17 to 20.
[135] See id. ¶ 21.
[136] See id. ¶¶ 22 and 24.
[137] See id. ¶ 24.
[138] See id. ¶¶ 25 to 26.
[139] See id. ¶ 27.
[140] See id. ¶ 28.
[141] See id. ¶ 30.
[142] See id.
[143] See id.
[144] See id. ¶ 32.
[145] See id. ¶ 34.
[146] See id. ¶ 36.
[147] See id.
[148] See id.
[149] See id.
[150] See id. ¶ 4.
[151] See id. ¶ 37.
[152] See id.
[153] Tr. at pg. 159.
[154] Id. at pg. 160.
[155] Id. at pp. 165 to 167.
[156] See Ex. C.
[157] Ex. E-3.
[158] Id. at E-8.
[159] Ex. F-2.
[160] Id.
[161] Id. at F-6.
[162] Tr. at pg. 176; see also Exs. J, L, M, and O.
[163] See Ex. R.
[164] Ex. S-5.
[165] Id.
[166] Tr. at pg. 255.
[167] See Tr. at pg. 259; see also Ex. 27-1.
[168] Tr. at pp. 212 to 213.
[169] After the closing arguments completed, I gave the parties an opportunity to present any additional evidence. The Parent’s representative and the Department’s attorney each submitted an email describing why the record, including Ex. S, proves or does not prove that Ex. 27 (the Neuropsychologist’s report) was provided to the Department on December 14, 2020, and not sometime thereafter, although it is undisputed that it was reviewed by the August 11, 2021 IEP team. Because this matter is being decided on the substantive issue of FAPE (described more fully below), and not cumulative procedurals errors affecting FAPE, I find the question of whether the report was sent to the Department on December 14, 2020 or some other date before August 11, 2021, moot, and therefore unnecessary to consider further.
[170] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[171] See 34 C.F.R. § 300.13.
[172] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[173] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); and Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993).
[174] See id.
[175] See NYS Educ. Law § 4404(1)(c).
[176] See 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
[177] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[178] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[179] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]).
[180] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[181] See 8 NYCRR 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[182] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[183] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[184] R.E. v. N.Y.C. Dep’t of Educ., 694 F.3d 167 (2012) (citing 20 U.S.C. § 1415[f][3][E][ii]).
[185] See Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y. 2005).
[186] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[187] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007).
[188] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).
[189] See id. at 364 (citing Carter, 510 U.S. 7 at 14).
[190] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[191] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[192] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[193] See id.
[194] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[195] C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 840 (2d Cir. 2014).
[196] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011). The Second Circuit also has looked at whether the parents should have availed themselves of need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion by the parent or the private school in generating the tuition or whether the arrangement with the school was fraudulent or collusive. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[197] See 20 U.S.C. § 1412(a)(10)(C)(iii)(I).
[198] Bd. of Educ. of Yorktown Cent. Sch. Dist. v C.S., 990 F.3d 152, 171 (2d Cir. 2021).
[199] Id.
[200] See S.W. v New York City Dep't of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[201] See Doe v. East Lyme, 790 F.3d at 454.
[202] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[203] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[204] See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[205] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[206] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (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").
[207] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[208] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[209] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[210] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[211] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[212] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[213] Somberg v. Utica Community Schs., 2017 WL 242840, at *4 (E.D. Mich. 2017).
[214] See Exs. 1-1 (3/18/2020), 8-1 (1/11/21), 12-1 (6/23/21), and 21-1 (8/11/21).
[215] See PST Aff. ¶¶ 10 and 14.
[216] See Exs. 1 (3/18/2020), 8 (1/11/21), 12 (6/23/21), and 21 (8/11/21).
[217] See generally, 34 CFR § 300.320(a) and 8 NYCRR § 200.4(d)(2).
[218] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[219] See Ex. N; see also Parent Aff. ¶ 13.
[220] See id.
[221] See Ex. A-2 to A-4.
[222] The Department highlighted the Student’s final Public School report card because he received “proficient” scores in mathematics and other subjects, but with respect to the most important subject affected by the Student’s special needs, ELA, he was not given a grade and it stated only “needs improvement.” See Ex. 20.
[223] Ex. 21-4.
[224] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005) (finding that “a school district fulfills its substantive obligations under the IDEA if... the IEP affords the student with an opportunity greater than mere ‘trivial advancement’” [quoting Walczak, 142 F.3d at 130]).
[225] PST Aff. ¶ 16.
[226] Id.
[227] Id. ¶ 18.
[228] PST Aff. ¶ 18.
[229] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[230] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[231] Because the matter is resolved on substantive grounds, I need not decide whether the procedural defects either alone or as accumulated constituted a procedural denial of FAPE, although I note that I have credited the Parent’s evidence, including (1) Ex. S, which tends to show that the Neuropsychologist report was made available to the Department before the January 11, 2021 IEP (I note here too that it was the Department’s burden, consistent with the law of FAPE in New York, to prove that it had not received all necessary evaluations, not the Parent’s burden to prove when she provided them), and (2) the undisputed evidence that the Department failed to timely conduct the evaluations it requested of the Parent, to which she had consented.
[232] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); see also M.S. v. Bd. of Educ., 231 F.3d 96, 104 (2d Cir. 2000).
[233] Gagliardo, supra., 489 F.3d at 115 (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[234] See Ex. C.
[235] See Exs. D through F.
[236] See Ex. G.
[237] See Ex. H.
[238] Pr. Aff. ¶ 5.
[239] Id. ¶¶ 6 and 7.
[240] See PST Aff. ¶¶ 10 and 14.
[241] Pr. Aff. ¶ 20.
[242] Id. ¶¶ 15 and 18.
[243] Id. ¶ 25.
[244] Id. ¶ 26.
[245] PST Aff. ¶ 13.
[246] Id. ¶ 9.
[247] Id. ¶ 8.
[248] Pr. Aff. ¶¶ 30 to 31.
[249] PST Aff. ¶ 16.
[250] Id.
[251] Ex. 21-3.
[252] Id. ¶ 18.
[253] Id. ¶ 20.
[254] See Parent Aff. ¶ 36.
[255] See id.
[256] See id.
[257] See id.
[258] Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 (6th Cir. 2003).
[259] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[260] See Exs. D, E, and F.
[261] See A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364).
[262] See Mr. and Mrs. A v. New York City Dep’t of Educ., 769 F. Supp.2d 403, 419 (S.D.N.Y. 2011).
[263] See Exs. 1-25, 2-1, 8-24, 12-25, and 23-1; see also Parent Aff. ¶¶ 23, 27, 30, and 34.
[264] See Ex. B.
[265] See Ex. 21.
[266] See Ex. C-1.
[267] See L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 (2d Cir. Jan. 19, 2017).
[268] See 20 U.S.C. § 1412(a)(10)(C)(iii)(III).
[269] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[270] See Ex. C.
[271] Parent Aff. ¶ 30; See P.K. v. N.Y.C. Dep’t of Educ., 89 F. Supp 2d 90, 117 (E.D.N.Y. 2011) (where a parent enrolls the student before rejecting DOE placement recommendation, circumstances may demonstrate that their actions are not be so unreasonable as to warrant a denial or reduction in reimbursement).
[272] See Ex. C-2.
[273] See Connors v. Mills, 34 F. Supp. 2d 795, 804 (N.D.N.Y 1998); see also 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.
[274] See Ex. C-1.
[275] See Pr. Aff. ¶ 33; see also Parent Aff. ¶ 37.
[276] See id. ¶¶ 4 and 37.
[277] See Ex. A-2.
[278] See P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[279] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[280] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[281] I do this for two reasons. First, although not raised by the Department, the two-year and three-year statutes of limitations of the IDEA (and its implementing regulations) and Section 504 of the Rehabilitation Act, respectively, apply to compensatory claims. This would mean that, given that the DPC was filed on June 14, 2022, I could look back to June 14, 2019, which is around the beginning of the summer break before the 2019-2020 school year began. Second, notwithstanding the less-strict nature of the pleading requirements of 8 NYCRR § 200.5(i), the phrase “at least” does not put the Department on notice of how many years the Parent was claiming FAPE was denied, but the body of the DPC makes clear that the Parent asserted (correctly) that FAPE had been denied for some time by the 2019-2020 school year, and that the denial continued into the 2020-2021 and 2021-2022 school years.
[282] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[283] Tr. at pp. 86 to 87.
[284] TFD Aff. ¶ 18.
[285] Id. at pp. 88 to 89.
[286] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[287] Tr. at pg. 98.
[288] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[289] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[290] Ex. A-3.
[291] Ex. 21-1.
[292] See id.
[293] Somberg v. Utica Community Schs., 2017 WL 242840, at *4 (E.D. Mich. 2017).
[294] This is based upon what would have been 40% (representing the highest percentage of deprivation for the final school year in the equation, associated with a 6th grader reading at 1st grade level), with the half of that number (20%) for the Spring 2021 period itself being cut in half in recognition that (1) the Student had some progress during that Spring, but (2) despite the progress, the Student was still very behind. This results in a one-quarter reduction in the potential 40% of the total deprivation being applied to that school year, or 30% instead of 40%.
[295] See TFD Aff. ¶ 22.