NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
____________________________________________________________________________
In the Matter of the Impartial Hearing
REGARDING STUDENT
Case No. 578309
Findings of Fact and Conclusions of Law
______________________________________________________________________________
Administrative Information
Case Number:578309
Student’s Name: REDACTED (“Student”)
Date of Birth: [Redacted text]
School District: Arlington Central School District (the “District”)
Hearing Requested by: REDACTED (“Parent”)
Request Date/Complaint Filed: August 30, 2022
Dates of Hearing: The hearing was held on November 3 and 10 and December 2 and 5, 2022, and January 10, February 6, 9, 15, and 21, and March 27, 2023.
Appearances:
November 3:
For the Student: Parent, Pro Se
For the District: REDACTED, Esq.; REDACTED, Director of Special Education
Witness for the District: REDACTED, Director of Special Education
November 10:
For the Student: Parent, Pro Se
Witnesses for the Parent: REDACTED, Developmental Behavioral Pediatrician; REDACTED, Director, REDACTED REDACTED For the District: REDACTED, Esq.; REDACTED, Director of Special Education
December 2:
For the Student: Parent, Pro Se
Witness for the Parent: REDACTED, Psychologist
For the District: REDACTED, Esq.; REDACTED, Director of Special Education
December 5:
For the Student: Parent, Pro Se
For the District: REDACTED, Esq.
January 10:
For the Student: Parent, Pro Se
For the District: REDACTED, Esq.
February 6:
For the Student: Parent, Pro Se
For the District: REDACTED, Esq.
February 9:
For the Student: Parent, Pro Se
For the District: REDACTED, Esq.; REDACTED, Director of Special Education
February 15:
For the Student: Parent, Pro Se
For the District: REDACTED, Esq.
February 21:
For the Parent: REDACTED, Esq.; Parent
For the District: REDACTED, Esq.
March 27:
For the Parent: REDACTED, Esq.; Parent
For the District: REDACTED, Esq.; REDACTED, Director of Special Education
Actual Record Close Date: May 10, 2023
Issues
*Did Parent violate the statute of limitations for all claims that arose prior to August 30, 2020?
*Did the District deny Student the right a free appropriate public education in academic years 2019-20 and 2020-21 and extended school year 2020?
*If so, what is the appropriate relief?
*Is parent entitled to attorney’s fees?
*Is Parent entitled to compensation for time and mileage for travel to Student’s assistive technology evaluation?
*Is Parent entitled to reimbursement for all fees paid to REDACTED Multisensory for educational consulting, reports, and attending CSE meetings?
*Did the District fail to provide Parent with all required prior written notices?
*If so, what is the appropriate relief?
Date of Decision: May 24, 2023
Date of Distribution if Different from Decision Date: n/a
Hearing Officer: Richard Marsico
Findings of Fact
I. Procedural History
1. Parent filed a complaint on behalf of Student against the District on August 30, 2022, alleging that the District denied Student a free appropriate public education (“FAPE”) in violation of the Individuals with Disabilities Education Act (“IDEA”) in academic year 2019-20 (“AY ‘19"), extended school year 2020 (“ESY ‘20), and academic year 2020-21(“AY ‘20"). Exh. SD1.[1]1
2. Student is classified with autism. Exh. SD2: 1.
3. Student is REDACTED years old. Exh. SD2: 1. Student attends REDACTED grade in the District. Tr. 757. The complaint covers third grade (AY ‘19), the summer before fourth grade (ESY ‘20) and fourth grade (AY ‘20). Tr. 757.
4. The complaint alleges that the District:
1. failed to implement fully the speech, ELA, and math instruction that Student’s individualized educational program (“IEP”) mandated in AY ‘19;
2. failed to implement fully the 1:1 reading, ELA, and math instruction Student’s IEP mandated in AY ‘20;
3. unilaterally decided to decrease Student’s hours in ESY ‘20;
4. failed to provide Student with appropriate educational services in ESY ‘20;
5. made unilateral decisions to change Student’s IEP without a prior written notice in AY ‘20;
6. failed to provide Student with Wilson reading services that her IEP required in AY ‘20;
7. failed to progress monitor.
Exh. SD1: 35-38.
5. The complaint seeks the following relief:
a. Compensatory education “to reverse [Student’s] academic losses in the form of a bank of hours to be put towards educational services with a private provider of our choosing and or reimbursement for monies already spent on services.”
b. “Intensive remediation and full-immersion” in an evidence-based reading program “with a highly-structured literacy approach . . . .”
c. Attorneys fees.
d. Reimbursement for all fees paid to REDACTED REDACTED, for “educational consulting, reports, and attending CSE meetings . . . . ”
e. Compensation for time and mileage for travel to REDACTED for REDACTED’s assistive technology evaluation.[2]2
Exh. SD1: 38-40.
6. The District did not submit an answer.
7. I was appointed as the impartial hearing officer in this case on September 7, 2022. IHO Exh I.
8. I held a pre-hearing conference on September 30, 2022. IHO Exh. II.
9. I extended the compliance date on November 4 and December 4, 2022, and on February 13 and 21, March 28, and May 10, 2023. IHO Exh. III.
10. On December 6, 2022, I issued subpoenas requested by Parent. IHO Exh. IV.
11. On January 31, 2023, I denied Parent’s motion to consolidate this case with a subsequent case Parent filed IHO Exh. V.
12. I admitted District’s Exhibits SD1 to SD12.
13. I admitted Parent’s Exhibits A2, A5–11, A15-16, A19-A21, A28-32, A34, A37, A39-42, A44, A47-48, A50, A52, A53, A55-56, A58, A63, A65, A67 (pages 1 and 5-7 only), A72, A81, A87-91, A94-96, A101, A110-114, A116-117, A122, A125-130, A133-136, A140, A142 (page 1 only), A145, and A147.[3]3
14. The parties submitted closing statements on April 24, 2023. IHO Exhs. VI (Parent), and VII (District).
II. Academic Testing
15. REDACTED–Neuropsychological Evaluations, August 27, 2019, June 21, 2021, and August 30, 2022: REDACTED conducted three neuropsychological evaluations of Student. Overall, REDACTED concluded that Student is well-below average in academic functioning. Tr. 473-74.
16. August 2019: REDACTED found that despite the special education support Student receives, she “continues to perform below grade level and requires much prompting, redirection and repetition of information.” Exh. A116: 6. REDACTED concluded that Student “demonstrates global delays in all areas of functioning that meet the criteria for mild intellectual disability . . . and global learning disability . . . .” Exh. A116: 6.
17. June 2021: REDACTED administered the WRAT-4 to Student, which showed that Student’s reading skills were in the “extremely low range for word reading and sentence comprehension. She could identify letters and sound out letters but she had difficulty putting all the letters together to identify the word.” Exh. A117: 5, 12; Tr. 464. Student’s “biggest problem is she is not able to read the words, she is not going to be able to understand what she reads.” Tr. 466-67.
18. August 2022: REDACTED administered the WISC-V to Student during this evaluation. Exh. A140: 5. She concluded that, “Overall, results indicate full scale intellectual functioning in the borderline range (SS=76).” Exh. A140: 6. Additionally, Student’s “working memory and processing speed skills are very low.” Exh. A140: 6. REDACTED also administered the WIAT-4 to Student. Exh. A140: 6. She concluded that Student is “well below average with respect to reading skills. Her word reading and decoding skills are well below average. She was unable to read the 4th grade reading level for reading comprehension and oral reading fluency . . . .” Exh. A140: 6. REDACTED concluded that Student “demonstrates global delays in all areas of functioning that continue to meet criteria for mild intellectual disability . . . , learning disability in the areas of reading and written expression, and ADHD.” Exh. A140: 10.[4]4
19. The District’s Triennial Evaluation, June 2021: The District conducted its triennial evaluation of Student over the course of several days in June 2021. See Exhs. A125-129. According to the Psychological Reevaluation, Student’s full-scale IQ was 76 (fifth percentile), including extremely low scores in working memory, processing speed, and cognitive proficiency. Exh. A125: 4. Student scored 66 on the basic reading portion of the WIAT-III, which was at or above the first percentile. Exh. A126: 3.
20. REDACTED REDACTED–Literacy Evaluation, June 3, 2021[5]5: REDACTED REDACTED administered the Word Identification and Spelling Test to Student. Exh. A101: 2. Student’s score on each of the sub-tests—word identification, spelling, fundamental literacy, and sound-symbol knowledge—was in less than the first percentile, which was described as “very poor” and at a grade-level equivalent of less than 2.0 and age-equivalent of less than 6-1. Exh. A101: 2-3. The evaluation concluded that Student has “very poor reading skills” and would benefit from “continued targeted multisensory reading and spelling instruction delivered by a certified provider in a 1:1 setting to begin remedying her current literacy challenges.” Exh. A101: 5.
III. Student’s IEPs
21. AY ‘19: Student’s third grade IEP included:
*Special Class, Language Arts, 5:1, daily, 1.5 hours;
*Special Class, Math, 5:1, daily, 1 hour;
*Individual and small group occupational therapy (“OT”), 1/6 days each, 30 minutes per session;
*Physical therapy (“PT”), individual, 1/6 days, 30 minutes; *Speech/Language Therapy (“SLT), individual/integrated and non-integrated 2/6 days each and 30 minutes per session each, and small group 2/6 days 30 minutes each; and
*Psychological counseling, small group, 1/6 days, 30 minutes.
Exh. SD2: 1.
22. ESY ‘20: Student’s IEP for ESY ‘20 following third grade included:
*Special Class, 12:1:1, daily, 30 minutes;
*SLT, small group, twice weekly, 30 minutes each;
*OT, group, weekly, 30 minutes; and
*PT, individual, weekly, 30 minutes.
Exh. SD4: 1.
23. AY ‘20: Student’s IEP for fourth grade included:
*Special Class, Language Arts, 5:1, daily, 1.5 hours;
*Special Class, Math, 5:1; daily, 1 hour;
*Special Class, Reading, 1:1, daily, 30 minutes;
*OT, individual and small group, 1/6 days each, 30 minutes each;
*PT, individual, 1/6 days, 30 minutes;
*SLT, individual/integrated and non-integrated 2/6 days each and 30 minutes per session each, and small group 2/6 days 30 minutes each; and
*Psychological counseling, small group 1/6 days, 30 minutes.
Exh. SD4: 1.
IV. The District’s Covid-19 Pandemic Educational Plan
24. On or about March 13, 2020, the District closed due to the Covid-19 pandemic. Tr. 53-54. The District provided asynchronous instruction until the end of March, when it began to provide some synchronous instruction. Tr. 54-58.
25. The District offered in-person and virtual instruction in ESY ‘20. Tr. 61.
26. School started in AY ‘20 on September 8, 2020. Tr. 68. Classes were virtual for all District students from September 8 through September 17, 2020. Tr. 67-69. Thereafter, the District offered a virtual program as well as an in-person program. Tr. 67-69. Instruction was synchronous on Monday, Tuesday, Thursday, and Friday and asynchronous on Wednesday. Tr. 72. Students in the virtual program received related services on Wednesdays. Tr. 72. The District’s Covid-19 education plan is described in Exhibits A145 and A147.
V. The District’s Failure to Implement Student’s IEPs
27. The District’s Analysis: REDACTED is the Director of Special Education for the District. Tr. 45. In August 2021, REDACTED undertook to determine the number of hours of educational services Student’s IEPs mandated that the District failed to provide. Tr. 74.
28. REDACTED concluded that in AY ‘19 the District failed to provide 11.5 hours of speech, 36 hours of ELA, and 36 hours of math. Tr. 86, 91.
29. REDACTED concluded that the District provided Student with 3.5 more hours of speech than her IEP required in ESY ‘20. Tr. 93.
30. The District provided Student with 12 hours of reading services in ESY ‘20 even though Student’s IEP did not include 1:1 reading services. Tr. 96-97; see Exh. SD4: 1.
31. REDACTED concluded that in AY ‘20, the District failed to provide 16.5 hours of ELA, 27.5 hours of 4:2 reading, and 70 hours of 1:1 reading, and that the District provided 24 hours more math instruction than mandated. Exh. SD11: 2; see Tr. 95-96.
32. REDACTED based her findings on information she received from Student’s teachers and her review of the School calendar, Student’s IEP, electronic related services provider records in Frontline, and teacher schedules in AY 2020. Tr. 76-79, 81, 85-86, 93, 94-95, 96-97, 130, 153, 179, and 181. The District did not provide teachers with a formal schedule from March to June in AY ‘19 so there were no schedules for REDACTED to review. Tr. 57-58, 150-151. The District does not require teachers to maintain session notes so REDACTED’ review did not include these. Tr. 153, 159-60.
33. The Parent’s Analysis: Parent determined that, overall, the District did not provide Student with the following services that Student’s IEP mandated: 20 hours of SLT, 106.5 hours of ELA, 82 hours of 1:1 reading, and 71.75 hours of math Exh. SD1: 35-39; Tr. 795.
34. Parent concluded that in AY ‘19, the District failed to provide student with 20 hours of SLT, 79.5 hours of ELA, and 53.75 hours of math. Exh. SD1: 34-35. Parent concluded that in AY ‘20, the District failed to provide student with 27 hours of ELA, 18 hours of math, and 82 hours of 1:1 reading. Exh. SD1:36-37.
35. Parent determined the number of mandated hours that the District did not provide to student as follows: “We had a dry erase board so that . . . I had printed out essentially, I created a PDF we kept at the computer and we would check off as we went. There was also a calendar next to the Board and we would cross days out, I would make notes on it if a service wasn’t provided.” Tr. 814.
36. In addition, Parent reviewed a spreadsheet she received from REDACTED that showed the services the District claimed that Student received. Exh. A67: 5-7; Tr. 128-31. Parent found several discrepancies where Student could not have received the services the spreadsheet listed or received fewer hours. Tr. 818. The following is a list of the discrepancies she found:
●December 17, 2020–snow day, Exh. A15:1; Tr. 171-72.
●January 20, 2021–no live instruction on Wednesdays, Exh. A19.
●January 26, 2021–noon dismissal, Exh. A17.
●March, 2021–a virtual field trip, Exh. A31.[6]6
●April 16 and 21, 2021–medical appointments, Exh. A37 and A40.
●April 29, 2021–Student was at a rescheduled OT session, Exh. A39.
●April 30, 2021–Student’s teacher was at a CSE meeting, Exh A41.
●May 4, 2021–Student was at a band/orchestra virtual meeting.[7]7
●May 7, 2021–Student was at an SLT session, Exh. A42.
●June 2, 2021–Student was at an OT/PT evaluation and then a speech evaluation, Exhs. A127–A129.
●June 9, 2021–Student was at a psychological evaluation, Exhs. A44 and A125.
●June 10, 2021–Student was at an SLT evaluation, Exh. A127.
●June 15, 2021–Student attended field-day, Exhs. A47 and 48.
●June 18, 2021–Student was elsewhere.[8]8
●June 22, 2021–Student was at a neuropsychological evaluation, Exh. A47.
37. Parent also found three instances when the District double-counted hours and one instance in which the District said it provided one hour of instruction in thirty minutes. Tr. 818.
VI. Private Tutoring
38. REDACTED founded REDACTED REDACTED (“REDACTED”), a private tutoring practice that specializes in multi-sensory reading, math, and writing, in the fall of 2018. Tr. 288-89.
39. REDACTED has a Bachelor of Science degree in human development and Master’s degrees in elementary education and early childhood special education. Tr. 286. REDACTED is a certified Wilson dyslexia practitioner and a certified practitioner with the Center for Effective Reading Instruction. Tr. 286-87. She has completed seventy hours of Orton-Gillingham training but is not certified in it. Tr. 287.
40. REDACTED was a special education teacher for the District from January 2016 to June 2018. Tr. 289, 358. She resigned because the District informed her that her contract would not be renewed and if she did not resign, she would be terminated. Tr. 359-60. Previously, she had been placed on a teacher improvement plan due to concerns with classroom management and behaviors in the classroom. Tr. 359.
41. REDACTED has known Student since December 2016 when Student was in her kindergarten class and in her first-grade class the next year. Tr. 298, 360-61.
42. In late April 2021, Parent notified the District that she was going to look into private tutoring if the District could not provide the services Student needed. Tr. 819.
43. Student began to receive tutoring from REDACTED on or about April 8, 2021. Exh. A110:33.
44. Since Student started receiving tutoring from REDACTED, she has made progress in reading and math. Tr. 367. However, she remains a fifth-grade student performing at a first grade level based on District assessments. Tr. 367.
45. REDACTED is Student’s reading tutor at REDACTED. Tr. 321.
46. An undated report about Student from REDACTED, with REDACTED’s name at the end, states that, “[Student] receives individual instruction in an explicitly taught multi-sensory structure language class three times a week for thirty minutes. [Student] has made significant gains in her ability to read and spell.” Exhibit A102: 1. The report continues, “When [Student] began receiving services, she was unable to identify all of the consonant and vowel sounds. . . . [Student] is now proficient and automatic in all of the consonant sounds . . . , welded sounds, and short vowels.” Exh. A102: 1.
47. Student’s progress report for June 2021 from REDACTED, also with REDACTED’s name at the end, states that Student takes a Wilson reading class twice a week for thirty minutes, and that topics covered include closed syllables, short vowels, phonemic awareness, blending and un-blending, tapping words, and spelling closed syllable words. Exh A104: 1.
48. Tutoring costs $50 per half-hour for reading and $45 per half-hour for math. Tr. 839.
49. Parent submitted invoices from REDACTED for the tutoring services it provided to Student. Exhs. A109[9]9 and A110. The invoices show the following payments. Unless a subject is indicated on this list, the invoice did not specify the subject matter of the tutoring.
●$735.00 for 22 “short sessions of literacy tutoring” from April 8 through June 17, 2021. Exh. A110: 23-33.
●$420.00 for twelve tutoring sessions of thirty minutes each in the summer of 2021. Exh. A110: 21-22.
●$7,875.00 in equal monthly installments of $787.50 for twice weekly sessions of thirty minutes each for $315 and thrice weekly sessions of thirty minutes each for $472.50 from September 1, 2021 to June 1, 2022. Exh. A110: 8-20.
●$180.00 for “session before summer start,” June 21, 2022. Exh. A110: 7.
●$180.00 for “session before summer start,” July 1, 2022. Exh. A110: 6.
●$450.00 for nine tutoring sessions of thirty minutes each at a rate of $50.00 per session, August 1, 2022. Exh. A110: 5.
●$360 for two thirty-minute reading sessions per week, August 27, 2022. Exh. A110: 3.
●$340.00 for two thirty-minute math sessions per week, August 29, 2022. Exh. A110: 4.
●$700.00 for two thirty-minute reading ($360.00) and two thirty-minute math ($340.00) sessions per week, October 1, 2022. Exh. A110: 2.
●$50.00 for one math tutoring session, October 13. 2022. Exh. A110: 30.
50. Parent submitted a tutoring summary for REDACTED covering April 2, 2021 through October 20, 2022. Exh. A113.
51. Parent submitted tutoring logs from REDACTED, REDACTED, and REDACTED. Exh. A114. “Jeanne” is the math tutor who worked with Student “this year.” Tr. 316, 323.
52. Parent submitted a statement for “REDACTED” for 2022 for 72 sessions for $3,600 and another statement for “Jeanie,” also for 2022, for 68 sessions for $3,400. Exhs. A112 and A111.
VII. Failure to Provide Prior Written Notice
53. Parent alleges that the District unilaterally changed Student’s placement and failed to provide a prior written notice on several occasions. These include the following:
●March 2020: REDACTED’s educational services changed. Tr. 797-98.
●Lack of Wednesday instruction in AY’ 20 until late in the year. Tr. 814-15.
●Reduced instruction in ESY ‘20. Tr. 810.
VII. Evidence of Progress and Regression
54. Reading: The record contains several references to Student’s Fountas & Pinnell (“F & P”) reading levels. Below is a list of Student’s F & P reading levels in chronological order:
December 2018: Level A. Exh. A72: 5.
March 2019: Level B. Exh. A72: 5.
April 2019: Level B. Exh. SD2: 6.
June 2019: Level C. Exh. A72: 5.
August 2019: Level D. Exh. A94.
January 2020: Level E. Exh. SD4: 7.
March 2020: Level E. Exh. SD4: 7.
September 2020: Level B. Exh. A88: 7.
March 2021: Level C. Exh. A88: 7.
March 2022: Level F. Exh. A90: 6.
55. Math: According to Student’s IEPs, Student made progress in her counting and calculating skills in third grade (AY ‘19) but her progress was stagnant in fourth grade (AY ‘20). See Exhs. SD2: 7, SD4: 7, and SD6: 7. Similarly, although Student’s math goals became more challenging from third to fourth grade, they remained the same from fourth to fifth grade. See Exhs. SD2: 10-10, SD4: 11, and SD6: 11. In fifth grade, Student made progress in her math skills and her goals for sixth grade were more challenging than in fifth grade. Exh. A91: 6, 11.
IX. The Statute of Limitations
56. Parent was aware during the April 2020 through June 2020 time frame that the District was not providing Student SLT or ELA in a way that was consistent with her IEP. Tr. 847, 848-49.
57. Parent was aware as early as April 15, 2020, that Student’s ESY ‘20 services would be reduced from the previous year. Exhs. A7: 1-2 and SD4-1; Tr. 810.
X. NYSED Complaint
58. Parent filed a complaint with the New York State Education Department (the “NYSED Complaint”) on August 19, 2021. Exh. SD12: 3. NYSED issued its decision on October 15, 2021. Exh. SD12: 1. The following chart summarizes the complaint and decision.
DATE OF ALLEGED VIOLATION | ALLEGATION | DISPOSITION | RELIEF |
AY ‘20 | The District failed to provide daily 1:1 reading to Student as required by her IEP | Sustained | None |
AY ‘20 | The District did not provide live instruction on Wednesdays for two-thirds of the year and did not provide a PWN when it made this change. | Sustained | None |
Summer 2021 | District failed to implement Student’s IEP when it removed her from instruction to receive related services | Not sustained | N/A |
Summer 2021 | District made a unilateral decision to provide Student with 1:1 reading as a compensatory service | Not sustained | N/A |
July 8, 2021 | District failed to provide a shared 2:1 teaching assistant to student | Sustained | None |
Summer 2021 | District sent an improper PWN relating to compensatory reading services | Not sustained | N/A |
Conclusions of Law1[10]4
Parent seeks the following relief: 1) Compensatory education “to reverse [Student’s] academic losses in the form of a bank of hours to be put towards educational services with a private provider of our choosing and or reimbursement for monies already spent on services.” 2) “Intensive remediation and full-immersion” in an evidence-based reading program “with a highly-structured literacy approach . . . .” 3) Attorney’s fees.1[11]4 4) Reimbursement for all fees paid to REDACTED REDACTED, for “educational consulting, reports, and attending CSE meetings . . . . ”1[12]5 5) Compensation for time and mileage for travel to REDACTED for REDACTED’s assistive technology evaluation. ¶5.
The District seeks to dismiss all claims that arose prior to August 30, 2020 on the grounds that they were not brought within the statute of limitations. IHO Exh. VI: 4-5. The District also asserts that it offered Parent appropriate compensatory education in the form of 11.75 hours of SLT, 16.5 hours of ELA, and 58 hours of 1:1 reading services. IHO Exh. VI: 6-9. Finally, the District argues that Parent failed to show that the tutoring services that REDACTED provided to Student were appropriate. IHO Exh. VI: 9-11.
I. Statute of Limitations
The IDEA provides that a party must file a complaint “not more than 2 years before the date the parent . . . knew or should have known about the alleged action that forms the basis of the complaint . . . .”1[13]6 The statute of limitations is tolled if the district misrepresented that the issue was settled or withheld required information.1[14]7
Parent filed this complaint on August 30, 2022. ¶1. Parent testified that she knew during the April through June 2020 time frame that the District was not providing Student with SLT or ELA in accord with her IEP. ¶56. Parent was aware as early as April 15, 2020, that Student’s ESY ‘20 services would be reduced from the previous year. ¶56. Finally, parent testified that she kept careful records of the hours that student missed. ¶35-37.
Parent thus knew or should have known that the District was not fully implementing Student’s IEP during AY’19 and reduced Student’s ESY ‘20 services more than two years before she filed this complaint. There is no evidence in the record that the District misrepresented that the issues were settled or withheld required information. All of Parent’s claims that arose prior to August 30, 2020 are therefore dismissed.
II. Free Appropriate Public Education
The District has the burden to show that it provided Student with a free appropriate public education (“FAPE”) as the IDEA requires. A FAPE consists of 1[15]8 “specially designed instruction . . . to meet the needs of a child with a disability . . . .”1[16]9 and related services, consisting of “transportation and such supplemental, corrective, and other supportive services . . . as may be required to assist a child with a disability to benefit from special education . . . .”2[17]0
The Supreme Court has created a two-part test to determine whether a school district provided a child with a FAPE: 1) Did the district comply with the IDEA’s procedural requirements? 2) Is the child’s educational program reasonably calculated to enable the child to receive educational benefits?2[18]1 In order for a procedural violation to violate the right to a FAPE, the violation must have impeded the child’s right to a FAPE, significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the child, or caused a deprivation of educational benefits.2[19]2 Substantively, a school district “must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”2[20]3 When a parent asserts that a school district’s failure to implement the child’s IEP denied the child a FAPE, the parent must show that the district’s failure was material.2[21]4
The District concluded that it did not fully implement Student’s IEP as to 1:1 reading, ELA, and SLT in AY ‘20. The District did not argue that its failure to implement fully Student’s IEP was not material. The record in this case shows that the District’s failure to implement was material, as student regressed in reading in AY ‘20. ¶54.
The District asserts that it provided more math to Student in AY ‘20 than her IEP required. ¶31. Parent disagrees and asserts that the District failed to provide Student with 18 hours of math in AY ‘20. ¶34. Parent’s position is more persuasive, as she maintained real-time records of Student’s services in AY ‘20 and found several errors in the District’s calculations. ¶¶35-37. Although REDACTED worked under unprecedented difficulties to determine the hours the District failed to provide Student and testified credibly, she was hampered by having to reconstruct the information using second-hand information and incomplete records. ¶32. I conclude that the District failed to implement fully Student’s math instruction in AY’20 and that this breach was material because student failed to make progress appropriate in light of her circumstances in math in AY ‘20. ¶55. Thus, the District failed to provide a FAPE to Student in AY ‘20 in connection with math instruction.2[22]5
III. Standards for Granting Relief
Having determined that the District violated Student’s right to a FAPE in AY ‘20, the next step is to determine the relief. The prevailing party in an IDEA case is entitled to such relief as the adjudicator deems “appropriate.”2[23]6 Parent seeks compensatory education, reimbursement amounts for tutoring in reading and math, and a bank of hours to be put towards paying for tutoring services by a provider of their choice.2[24]7
A student is entitled to compensatory education if her school district violated her right to a FAPE.2[25]8 The goal of an award of compensatory education is “to place disabled children in the same position they would have occupied but for the school district’s violation of the IDEA.”2[26]9
The Supreme Court has not established a test for determining whether a parent is eligible for reimbursement of expenses for related services such as tutoring. It has, however, established a three-prong test for determining whether parents who removed their child with a disability from public school and placed them in a private school to provide them with an appropriate education are eligible for tuition reimbursement from the school district.3[27]0 The tests asks whether 1) the public school offer the child a FAPE3[28]1 and 2) the private school’s education appropriate to meet the child’s educational needs3[29]2 3) the balance of equities favor the parents.3[30]3 This test provides a useful framework for determining whether a parent is entitled to reimbursement for related services and will be applied here.
As stated above, the District failed to provide Student a FAPE with regard to reading and math in AY ‘20. Regarding the appropriateness of REDACTED’s reading and math tutoring, Parent has satisfied her burden to show that they were appropriate. Student progressed four F & P reading levels, from A to E, over a period of approximately fifteen months (December 2018 to March 2020). During a one-year period from March 2020 to March 2021, Student regressed two levels, from E to C. After Student began to receive reading tutoring, she progressed three levels, to Level F, by March 2022. ¶54. Similarly, after making progress in math in AY ‘19, student’s progress stalled in AY ‘20, and her progress resumed once she started to receive math tutoring started. ¶55.
As for the equities, during unprecedented circumstances, the District was able to educate all children in the District, including Student. The District did its best to investigate Parent’s claims and offered to settle. Parent was a strong advocate for her child, also under unprecedented circumstances, and was in regular communication with the District about her concerns about the provision of a FAPE to Student. She maintained an open mind regarding the District’s proposed relief and was not unreasonable or uncooperative.
V. Relief
In crafting the order of relief, I have considered the totality of the circumstances, including Student’s level of cognitive functioning, her academic skills, her capacity to make academic progress, the extent that the District’s failure to implement her IEP resulted in academic regression, the impact that her private tutoring has made on her current progress, the equities, and, in particular, the findings below.
During a one-year period prior to the pandemic (March 2019 to March 2020), Student progressed three F & P levels, from B to E. ¶54. Over the next year (March 2020 to March 2021), which included most of AY ‘20, student dropped two levels, from E to C. ¶54. Student thus lost two years of reading in AY ‘20: she failed to progress and regressed one year. Regarding math, Student made progress in third grade and failed to make progress in fourth grade, and thus lost one year of math. ¶55.
I thus order the District to compensate Parent for two years of lost reading instruction and one year of lost math instruction. Parent is thus eligible for reimbursement for no more than 80 half-hour sessions of math and 240 half-hour sessions of reading tutoring from REDACTED, at the rate of no more than $50.00 for reading and $45.00 for math upon submission of proof by Parent to the District within thirty days of the date of this order that:
1. The sessions occurred between May 1, 2021, which is approximately ten days after Parent gave the District notice that she was arranging for private tutoring, ¶ , and August 30, 2022, the day Parent filed this complaint. ¶1.3[31]4
2. Parent paid for these sessions.
3. Student attended the sessions.
To the extent that Parent cannot submit proof in accord with the previous paragraph, the District shall make up the difference by providing compensatory 1:1 math tutoring and/or 1:1 reading tutoring, at the rate of two one-half hour sessions of math or three one-half hour sessions of reading per week, by using District staff or arranging for an outside provider at the District’s discretion.
Findings and Order
Whereas, the District denied Student a FAPE in AY 2020; and
Whereas, Parent paid for appropriate compensatory services; and
Whereas, Parent incurred travel expenses to bring Student to an AT evaluation; it is hereby
ORDERED that:
1. The District reimburse Parent for no more than 80 half-hour sessions of math and 240 half-hour sessions of reading tutoring from REDACTED, at the rate of no more than $50.00 for reading and $45.00 for math upon submission of proof by Parent to the District within thirty days of the date of this order that:
1. The sessions occurred between May 1, 2021 and August 30, 2022.
2. Parent paid for these sessions.
3. Student attended the sessions.
2. To the extent that Parent cannot submit proof in accord with the previous paragraph, the District shall make up the difference by providing compensatory 1:1 math tutoring and/or 1:1 reading tutoring, at the rate of two one-half hour sessions of math or three one-half hour sessions of reading per week, by using District staff or arranging for an outside provider at the District’s discretion.
3. The District compensate Parent for 98.7 miles of driving at the IRS reimbursement rate in effect in 2022.
Dated: May 24, 2023
_______________________
Richard D. Marsico
Impartial Hearing officer
http://www.sro.nysed.govNOTICE 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 District 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 District within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
Footnotes
[1] 1Exhibits will be referred to as “SD[Exh. No.]” for the District’s exhibits, “A[Exh. No.] for Parent’s exhibits, and “IHO [Exh. No.]” for the IHO’s exhibits. Particular page references are included after the exhibit number, for example, as SD Exh. 1: 3.
[2] 2I take judicial notice that according to Google Maps, the round-trip distance between Parent’s home at REDACTED, REDACTED, New York and the REDACTED is 98.7 miles. See https://www.google.com/maps/dir/2706+REDACTED+Road,+REDACTED,+NY/REDACTED+Institute+for+REDREDACTED+Oval+W,+REDACTED,+NY+10595/2706+REDACTED+Road,+REDACTED,+NY/@41.3693914,-74.065137,10z/data=!3m1!4b1!4m20!4m19!1m5!1m1!1s0x89dd5d282c50eaa9:0x783042b549c47066!2m2!1d-73.644659!2d41.647471!1m5!1m1!1s0x89c29567b46e2975:0x3f13a96e2c96408f!2m2!1d-73.8075084!2d41.083324!1m5!1m1!1s0x89dd5d282c50eaa9:0x783042b549c47066!2m2!1d-73.644659!2d41.647471!3e0
[3] 3I held under advisement the Parent’s offer into evidence of Exhibits A7, A20, and A53 and I now admit them. In addition, Exhibits A118 and A140 are duplicates except Exhibit A118 is missing one page. I now remove Exhibit A118 from evidence as duplicative.
[4] 4The Addendum to this evaluation report lists Student’s full-scale IQ as 76. Exh. A140: 13. In contrast, Exh. A118, which I originally admitted but have not excluded because it is duplicative of Exh. 140, indicates that Student’s full-scale IQ is 93. Exh. A118: 13. This IQ score is inconsistent with the record in this case.
[5] 5The author of this report did not testify. REDACTED testified that she reviewed the report but did not provide any input as to its contents. Tr. 304. I limited Parent’s questioning about this document to Ms. REDACTED’s review of it. Tr. 306-07.
[6] 6Exhibit A31 did not clearly indicate the date of the field trip.
[7] 7Parent referred to this in her opening statement and brief but there is no evidence of this in the record.
[8] 8Parent referred to this in her opening statement and brief but there is no evidence of this in the record.
[9] 9Exh. A109 is identical to Exh. A110: 30 so I have excluded it from evidence.
[10] 14In rendering this decision, I have carefully considered the entire record, including the transcript, exhibits, and post-hearing briefs. I have reviewed every allegation and argument in the pleadings and the briefs. To the extent that I do not explicitly reference a particular allegation or argument, it is not because I have failed to consider it, but because I deem it abandoned, not supported by the law or facts, or repetitive.
[11] 14IHOs do not have the authority to award attorney’s fees.See 20 U.S.C. § 1415(i)(3)(B)(i)(I) (allowing courts the discretion to award attorney’s fees to prevailing parties). This claim is dismissed.
[12] 15The IDEA does not authorize payment of expert fees to parents. Arlington Cent. Sch. Dist. v. Murphy, 548 U.S. 291 (2006). This claim is dismissed.
[13] 1620 U.S.C. § 1415(b)(6)(B).
[14] 17Id. at § (f)(3)(D)(i) and (ii).
[15] 1820 U.S.C. § 1401(9).
[16] 19Id. at § 1401(29).
[17] 20Id. at § 1401 (26).
[18] 21Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[19] 2220 U.S.C. § 1415(3)(E)(ii)(I)-(III).
[20] 23Endrew F. v. Douglas Cnty. Sch. Dist., 137 S. Ct. 988, 999 (2017).
[21] 24Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811 (9th Cir. 2007).
[22] 25Having concluded that the District deprived Student of her substantive right to a FAPE in AY ‘20, it is not necessary to consider whether it also denied Student’s and Parent’s procedural rights to a FAPE. However, my review of the record indicates that even if the District violated their procedural rights, this did not impede Student’s right to a FAPE, significantly impede Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to Student, or cause a deprivation of educational benefits.
[23] 2620 U.S.C. § 1415(i)(2)(C)(iii) (2012).
[24] 27There is no basis in the record for granting such a bank of hours on these terms.
[25] 28Reid v. District of Columbia, 401 F.3d 516, 523-34 (D.C. Cir. 2005).
[26] 29Id. at 518.
[27] 30Sch. Comm. of Burlington v. Dep’t of Educ. of Mass., 471 U.S. 359, 369 (1985).
[28] 31As described supra Section II, the District deprived Student of a FAPE.
[29] 32In order to satisfy the second prong, the parent need not prove that the placement provides a FAPE, only that it was appropriate. See Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993).
[30] 33Id.
[31] 34In her complaint, Parent requested “reimbursement for monies already spent on services.” Exh. SD1-38.