New York City Department of Education, Impartial Hearing Decision

Case Number: 588421 – NYC: 239603

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

School District: District # [REDACTED]

Impartial Hearing Officer: Michelle S. Babbitt

Date of Filing: 9/28/2022

Hearing Requested by: Parent

Date of Hearing: 3/17/2023 Date of Submission of Written 4/21/2023 Summations and Memorandum

Record Close Date: 5/18/23

Date of Decision: 5/19/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 3.17.23:

For the Student:

[REDACTED] (hereinafter referred to as “Parent’s Representative”)

[REDACTED] (hereinafter referred to as “Witness #1”)

[REDACTED], Parent (hereinafter referred to as “Witness #2”)

For the Department of Education:

[REDACTED], Esq. Agency Attorney for the DOE (hereinafter referred to as “District’s Representative”)

BACKGROUND

The Parent, through counsel, filed a Due Process Complaint on 9.28.22 (Parent’s Exhibit A). Thereafter, the CSE convened to develop another IEP, and the Parent filed an amended hearing request on 1.13.23 challenging the most recent IEP from 10.13.22 (Parent’s Exhibit B) (9.28.22 and 1.13.23 together, the “DPC”). In the DPC, the Parent alleges that the Department of Education (“DOE”) failed to offer the Student a free appropriate public education (“FAPE”) for the 2020-2021, 2021-2022 and 2022-2023 school years. The DPC requested (i) educational evaluations, including, (a) neuropsychological evaluation; and (b) speech-language evaluation; and (ii) compensatory education of 915 hours of 1:1 tutoring, scheduled at the Parent’s discretion with no expiration date, be provided by [REDACTED] (“the Tutoring Center”) [REDACTED], New York, NY 10128, at a rate of $110.00 per hour (iii) payment to the Tutoring Center in the amount of $295 for the cost of diagnostic testing and $100 for the Tutoring Center’s registration fee; and (iv) transportation to and from the Tutoring Center in the form of a MetroCard for the Student (Parent’s Exhibit A-8 and IHO Exhibit 3-17-18).. In the DPC the Parent did not request a certain number of hours of compensatory education (Parent’s Exhibit A-8).

I was appointed to preside over this matter on 12.21.22. I held a Prehearing Conference on 1.9.23. On 2.23.23 The DOE’s representative sent an email conceding Prong 1(IHO Exhibit 1-1). A hearing on the merits was held on 3.17.23.

The 2.23.23 email from the DOE, together with the DOE’s concession of FAPE at the hearing (Tr. 13), constitutes a concession of FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years.

JURISDICTION

The Due Process Hearing was held, and a decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art 89 § 4404 et seq., and its implementing regulations, 8 NYCRR Part 200.

THE HEARING

On 3.17.23 the parties appeared for the virtual hearing. The DOE conceded FAPE (Tr. 13; IHO Exhibits 1-1 and 2-2) but sought to admit Exhibits 1-8 into evidence. The documents were admitted into evidence, without objection from the Parent (Tr. 13-15). The Parent sought to introduce Exhibits A-P into evidence (Tr. 18-19). Exhibits A-P, excluding Exhibit N (the Parent Affidavit), were admitted into evidence, without objection from the DOE (Tr.18-19, 26). I voiced concern with the substance of Parent’s Affidavit, noting that it concerned allegations that were not germane to this proceeding, which I had expressed to the parties by email dated 2.23.23. Specifically, the Parent’s affidavit contained testimony regarding the Student’s brother, his classification and the family’s housing situation, with these allegations appearing at paragraphs 12, 14, 15, 17 and 21 (Tr.19-26). Parent’s Representative stated that she did not object to certain portions of the Affidavit being stricken, but logistically there were difficulties modifying the Affidavit prior to the hearing (Tr. 15-16, 19-20) 1

For its opening statement the DOE said they were not putting on a Prong 1 case to defend FAPE for the school years at issue. The DOE reserved the right to cross examine the Parent's witnesses and to challenge the appropriateness of the relief being requested. The DOE further stated that it was not making any equitable arguments. The DOE affirmatively conceded Prongs ^[1] and 3 (Tr. 26; IHO Exhibits 1). Specifically, the DOE was contesting the number of hours of compensatory education being sought by Parent (Tr.27).

The Parent’s Representative made an opening statement, providing background as to the Student and requesting relief that was not requested in the DPC. With respect to Parent’s request for neuropsychological, speech and occupational evaluations, the DOE agreed to work with the Parent to conduct such evaluations (Tr. 27-32, 62). The Parent’s Representative requested a one-to-one paraprofessional, although no such relief was requested in the DPC (Tr. 31; Parent’s Exhibits A and B).^[2] Relief beyond the pleading is inappropriate as it deprives the DOE of notice (Tr. 56-57,62). ^[3]

The DOE did not present any witnesses (Tr. 32). The District Representative cross-examined Witness #1 (Tr. 35-42), but declined cross examination of the Parent, Witness #2 (Tr. 49).

The Parent and the DOE submitted written summations on 4.21.23 (IHO Exhibits 2 and 3). The Parent seeks an order for funding for 915 hours of 1:1 tutoring to be provided at the Tutoring Agency for the DOE’s failure to provide the Student a FAPE during the 2020-2021, 2021-2022 and 2022-2023 school years (Parent’s Exhibits A-9 and L). The Parent also seeks an order for a MetroCard to enable the Student to attend the Tutoring Agency. The DOE had no opposition to the issuance of a MetroCard to the Student to enable him to attend tutoring sessions (Parent’s Exhibit A-9, Tr. 59-61 63-64).

With respect to the requested relief, in its closing brief the DOE stated: “the District is not making any arguments in opposition of the independent evaluations. As it pertains to the request for a reconvene IEP meeting and deferral to CBST, the District contends that the testimony of the Parent explicitly states her desire for the student to remain at his current placement, M680 The Heritage School, even though they do not have the recommended class size available for the student. (Transcript page 51)” (IHO Exhibit 2-2-3). The District challenged the number of hours being requested by the Parent for compensatory education, noting the Parent’s election to have the Student remain at the public school, despite it not being able to implement the recommended program. The District also argued that the requested relief is not in accord with the alleged harm to the Student (IHO Exhibit 2-3-5).

TESTIMONY AND FINDINGS OF FACT

The Student, classified as a student with Autism, is [REDACTED] years old and in the 9th grade in a DOE public school (Parent’s Exhibits H, N-1-2). His 1.4.21 IEP states that the Student has also been diagnosed with attention-deficit hyperactivity disorder, and attention and concentration deficit, which impact his learning, hyperactivity, and attention (Parent’s Exhibit F1).

The Psychological Assessment dated 1.10.20 states: “Through January 2020, Reece has been absent from school 23 times and late 11 times. His teacher noted that his lack of attendance has affected his work completion and his overall performance” (DOE Exhibit 6-2). That assessment reported:

“His teacher reported that his reading skills are between a 2nd-3rd grade level in both decoding and comprehension. His math skills are stated to be between a 1st and 2nd grade level in computation and K-1st grade level in his math reasoning. He can add and subtract 1-, 2- and 3-digit numbers and multiply 1- and 2-digit numbers. However, he struggles with word problems, multistep problems, ratios and inequalities. When writing, his skills are reported to be between a 1st and 2nd grade level. He needs to work on his syntax, legibility, punctuation, and spelling” (DOE Exhibit 6-2).

The Student’s IEP dated 1.14.20 recommended a 12:1:1 classroom size with related services in occupational and speech therapy (Parent’s Exhibit E-19-20).

The Student’s IEP dated 1.5.21 recommended a 12:1:1 classroom with related services in occupational and speech therapy (Parent’s Exhibit F 15-16). By letter dated 11.4.21 the District offered the Student Special Education Recovery Services intended to address needs arising from learning disruption caused by the pandemic. Specifically, the Student was offered 16 hours of small group instruction in a group of six or fewer, and 8 hours of speech language and occupational therapy to be delivered in a group (DOE’s Exhibit 5).

The Student’s 12.21.21 IEP recommended a 15:1 self-contained classroom for implementation as of 7.1.22 (Parent’s Exhibit G-13). At that meeting, the Parent “stated that [the Student] has many doctors’ appointments and it causes him to be absent. She said that she will try to make his appointments outside of school hours or will have [the Student] attend as much of the school day as possible and leave early/arrive late to accommodate his appointments. She also said that he has a very difficult time waking him up in the morning and getting him out the door to school on time.” (Parent’s Exhibit G-3). The Student’s absences caused him to miss OT (Parent’s Exhibit G-4).

The Student’s IEP dated 10.13.22 recommended a 15:1 self-contained classroom in a DOE public school, along with two 40-minute group sessions of Speech Language Therapy (“SLT”) per week and two 40-minute group sessions of occupational therapy per week (Parent’s Exhibit H-18). The 10.13.22 IEP states that the Student was placed in an Integrated Co-Teaching classroom at his high school (Parent’s Exhibit H-3), and that he was not being provided his mandated occupational therapy sessions (Parent’s Exhibit H-5). The Parent was informed that the recommended school does not have a 15:1 self-contained classroom and is therefore unable to implement the Student’s IEP (Ex. N-2). The CSE team determined that the Student did not require additional services (compensatory education) to address lost skills and/or lack of expected progress due to the periods of remote and blended learning beginning in March 2020 (Parent’s Exhibit H-19).

The Student remains in an ICT classroom in public school (Parent’s Exhibit N-2, see also Exhibit H-3). The Parent was informed that she would have to locate another school for the Student but did not do so (Parent’s Exhibit N-2-3; Tr. 51). The Parent would like the Student to stay at the Heritage School because it is close to their home and convenient and the Student likes his teachers (Tr. 51, Parent’s Exhibit N-7-8).

The Parent asserts that the Student’s progress was minimal. Specifically: • The Student’s 1.14.20 6th grade IEP indicated that the Student had received a failing grade of 55 in all core subject areas, that he was reading at a 2nd grade level, his writing skills were at a 1st to 2nd grade level, and his math schools were also at a 1st to 2nd grade level (Parent Exhibit E-1-3, 24). • The Student’s IEP dated 1.5.21, developed when he was in the 7th grade, indicated that his reading level had regressed to a Kindergarten level (Parent’s Exhibit F-1).

His math skills were noted to remain at the same 2nd grade level as the previous school year (Parent’s Exhibit F-20). • The Students’ IEP dated 12.21.21, conducted during the Student’s 8th grade school year, indicated that his reading level had improved to a 1st grade level, and his math level had improved to a 3rd grade level (Parent’s Exhibit G-1, 19). Notably, during the year the Student had made progress over several domains. • The Student’s IEP dated 10.13.22 indicated that the Student’s reading level was on a 2d grade level and his math level was at the 3rd grade level (Parent’s Exhibit H-24). Cognitive testing indicates that the Student’s full-scale IQ was within the extremely low range (Parent’s Exhibit H-2). It appears that the first request for updated evaluations, including an independent neuropsychological evaluation and a speech language evaluation is via the DPC, as there is no evidence in the record to suggest otherwise (Parent’s Exhibit A-9). The DOE has no objection to conducting such evaluations (Tr. 51, IHO Exhibit 2-2-3).

The Parent took the Student to the Tutoring Learning Center for an evaluation in August 2022 after receiving a flyer in the mail (Parent’s Exhibit N-7). The testing conducted at the Tutoring Center revealed skill gaps in reading, writing and math (Parent’s Exhibits. K, M, P-6-7). Witness # 1 did not personally conduct the testing on the Student. She met with him just for a few minutes when he was coming to and leaving the Tutoring Center (Tr. 35, 39 Parent’s Exhibit P-2). Witness #1’s role at the Tutoring Center is managerial. (Parent’s Exhibit P-1). Witness #1 testified to the tests administered to the Student over a three-hour period, and the results of those tests (Parent’s Exhibit P-2-7). Witness #1 testified that the Student’s “independent level to be first grade in both verbal (ELA) and math.” (Parent’s Exhibit P-8). The 915 hours recommended for the Student is to enable him to reach a sixth-grade level in the academic subjects (Parent’s Exhibit P-8, L). The testing was conducted in August 2022, seven months prior to the hearing (Tr. 37). Witness # 1 does not adjust the recommended hours downward, even if the Student is making progress. Witness # 1 leaves it to the parent to determine whether the Student should use whatever hours he has allocated to him after he reaches his goals (Tr. 38). Witness #1 could not state a period of time within which the Student should use the 915 recommended hours. She testified that the maximum number of hours a student could use each week for tutoring services was 10, with 20 hours each week when a student is on vacation. Witness #1 admitted that it is difficult for a student to “maintain that intensity” over a protracted period. The minimum recommended hours of instruction per week is four, as consistency is important to the process. Any time for tutoring that is more than two hours after school is not manageable for the student, according to Witness #1 (Tr. 39-41). Witness #1 opined that in person learning is preferable for the Student for it to be effective (Tr.41-42). Witness #2 testified that she is familiar with the New York City Public school system, as the Student has an older brother who also has an IEP. Witness # 2’s testimony was not clear. She failed to provide details as to the year or student(child) in issue. Parent’s representative did not seek to add clarity to Parent’s testimony (Tr. 45-49). It appears that the Student attended school in Queens while living in Brooklyn. From the Student’s house to the school it was approximately 30 minutes by a yellow bus. The family moved to Queens in the summer of 2018. The family then moved to Manhattan during the summer of 2020 (Tr.51-55). Witness #2’s testimony was confusing, inconsistent, and unclear (Tr.45-61). According to the Parent’s affidavit the Student was absent from school a great deal during both the 7th and 8th grades. In part, it was due to the Student’s allergies, and in part it was due to Covid, both the school believing he was ill with the virus, and sending him home, and in part, the Parent affirmatively keeping him at home because testing lines for Covid were too long to secure a result for the school (Parent’s Exhibit N-6).

The scope of the impartial hearing is limited to the issues raised in the DPC. Any issues or allegations not contained within the four corners of this complaint are not to be considered. 8 NYCRR 200.5 (j)(l)(ii), 20 U.S.C. 1415 (F) (3)(b), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 Civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012.)

The school years at issue before this tribunal is 2020-2021, 2021-2022 and 2022-2023.

ANALYSIS AND DETERMINATION

It is uncontroverted that this Student was denied FAPE. The Student is entitled to compensatory education.

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings. NYS Educ. Law § 4404 (1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").20 U.S.C. § 1400 (d)(1) (A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, here, the DOE conceded FAPE (Tr. 13; IHO Exhibits 1 and 2-2). Therefore, I am constrained to find that the DOE failed to offer the Student FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years.

Requested Relief Compensatory Education

The relief requested by Parent is equitable in nature, as she seeks an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. Specifically, Parent requests an order that the DOE fund 915 hours of compensatory education by an independent provider of the Parent’s choosing, the Tutoring Agency.

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. Id.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). Compensatory education is an equitable remedy, so principles of equity and fairness come into play and may impact whether compensatory education is awarded or the amount of the award. See, e.g., Garcia v. Bd. of Educ. of Albuquerque Pub. Schs., 49 IDELR 241 (10th Cir. 2008); Application of Student with a Disability, Appeal No. 21-244.

The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169. However, just because the DOE does not submit a case does not mean the parent is necessarily entitled to their full requested compensatory remedy. See M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. 2017); Application of Student with a Disability, Appeal No. 21-213. Requested hours may be limited if the need for them is inadequately supported by the record, would lead to diminishing returns, or could overwhelm the student. See M.M., 2017 WL 1194685, at *8 (“[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become useless, or even burdensome, if provided in overwhelming quantity.”); Application of Student with a Disability, Appeal No. 21-213 (“While the district failed to present evidence or its view of an appropriate compensatory education award, the IHO was not required to award all of the relief that the parents sought. Such an outright default judgment awarding compensatory education-or as in this case, any 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.”) citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005) and M.M., supra. Furthermore, a request for compensatory relief may be denied if there is insufficient causal link in the record between any deprivation and the student’s current deficits. See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C. Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that the student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by the student in crafting an award, regardless of the substantive appropriateness of the IEP); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir.

1994) (denying compensatory education where the student was able to graduate with his class and the parents had declined the district’s offer of extra services).

During the COVID-19 pandemic, schools were not able to provide certain in-person services. ^[4] If a school closed its doors to stop COVID-19 from spreading, and the district is not providing educational services to the student population in general, then “the [local educational agency] would not be required to provide services to students with disabilities during the same period of time. Once school resumes, however, districts must make every effort to provide special education and related services to the child in accordance with the IEP or 504 plan. ... The Department understands there may be exceptional circumstances that could affect how a particular service is provided.” (Questions and Answers on Providing Servs. to Children With Disabilities During the Coronavirus Disease 2019 Outbreak, 76 IDELR 77 [EDU 2020] [internal quotation marks omitted]). A child's IEP team would need to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements (id.).

To address any delays caused as a result of remote instruction during the pandemic, both the U.S. Office of State Educational Programs (“OSEP”) and the New York State Education Department (“NYSED”) have indicated that a CSE should first have the opportunity to convene and "make individualized decisions about each child's present levels of academic achievement and functional performance and determine whether, and to what extent, compensatory services may be necessary to mitigate the impact of the COVID-19 pandemic on the child's receipt of appropriate services." "Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 1, 3; see also "Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities," 76 IDELR 104; "Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak," 76 IDELR 77 (OCR & OSERS 2020); "Supplement #2 Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at pp. 2-5, Office of Special Educ. Mem. (June 2020);^[5] see also Application of a Student with a Disability, Appeal Nos. 21-215 and 21-244 (stating that a CSE should have this opportunity first and “[t]here is no indication that this has yet occurred.”). Here, the CSE team determined that the Student did not require additional services (compensatory education) to address lost skills and/or lack of expected progress due to the periods of remote and blended learning beginning in March 2020 (Parent’s Exhibit H-19).

Any appropriate remedy should only address the educational deficits caused by the DOE’s failures during the school years at issue. The IDEA does not require school districts to provide everything that loving parents might desire. School districts are not required to “maximize” the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]), but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement’” (Cerra v. Pawling Cent. Sch. Dist., 427 F3d 186, 195 [2d Cir 2005], quoting Walczak v. Florida Union Free Sch. Dist., 142 F3d 119, 130 [2d Cir 1998]).

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. “When a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008].

Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454.Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’.” Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). If the IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” Reid, 401 F.3d at 522) (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” Reid, 401 F.3d at 518.

Parents who allege FAPE deprivations while their children remain in a public-school setting and who seek relief to redress the FAPE deprivation bear no Burlington/Carter “prong 2” burden. Rather, such parents’ requests for relief are analyzed using a reasonableness standard. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); Student X. v. New York City Dep't of Educ., 07-CV-2316 (NGG) (RER). (E.D.N.Y. Oct. 30, 2008); R.C. v. Bd. of Educ., 2008 LEXIS 113149, at *38-40 (S.D.N.Y. March 6, 2008)).

Notwithstanding the foregoing, the purpose of compensatory education is not to punish school districts. It is unclear how the requested number of compensatory hours can be properly implemented without overwhelming the Student, allowing time for the normal activities of life, considering the Student’s attentional deficits, and providing an educational benefit. Witness #1 testified that the Student could use a minimum of four hours per week and a maximum of ten hours per week, stating that any additional hours proved not to be effective for students (Tr.39-41). It would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.

Finally, as is always the case in equity, the IHO must balance the evidence and interests of the parties. Therefore, where the District disputes the grant of compensatory relief, it is incumbent upon the District to explain its own view of what type of compensatory education relief would be appropriate. See Application of a Student With a Disability, NYSED SRO Decision 11-091 n. 10. Although the District argues that the number of hours of compensatory education sought by the Parent is not appropriate, it does not state a position with respect to what number of hours would be appropriate to cure the three-year FAPE deprivation (IHO Exhibit 2-3-5).

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).

In this case, the DOE did not carry its burden, let alone make any attempt to do so. As noted above, New York State law places the burden of production and persuasion in this type of case entirely on the DOE. The DOE is, therefore, required to address its burdens by describing its views regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the Student in the position that he would have been but for the denial of a FAPE. Here, I provided the DOE an opportunity during the impartial hearing to provide its position regarding the appropriate compensatory education remedy through an opening statement, calling witnesses, introducing documentary evidence, cross examining the Parent’s witness, and presenting a closing argument.

DOE argued that the relief sought by Student was inappropriate in its closing (DOE Exhibit 2- ) but did not specify what relief, if any, it would deem appropriate if I made a finding that Student was denied a FAPE. Despite the DOE’s failure to present any contrary evidence regarding an appropriate compensatory education award, courts have looked with disfavor at decisions that award all the compensatory relief requested by a parent in IDEA cases due to the lack of a contrary or alternative position from the school district. See Branham v. Gov’t of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005) [holding that “[c]ourts fashioning discretionary equitable relief under the IDEA must consider all relevant factors,” and reversing the district court’s default judgment, its “unexamined lump sum grant of compensatory education,” and its award of a private school placement, because it failed to engage in a qualitative, fact-intensive analysis to determine whether the remedy was carefully tailored to the student’s needs.

To fashion a compensatory remedy, I must consider who will provide the service, how much they will be paid to provide the service, and how many hours of services the Student is entitled to. Regarding the provider, the Parent requested that the services be provided by the Tutoring Agency. The DOE did not take a position regarding who should provide the services to the Student (i.e., whether the service providers would be public employees or private providers). Therefore, I find that an appropriately credentialed provider of the Parent’s choosing, the Tutoring Agency, is appropriate.

The Tutoring Agency’s recommendation is made on a qualitative basis, being the total number of hours needed to bring Student up to grade level 6. Each component is based on the results of the Tutoring Agency’s assessments (Parent’s Exhibit L and P-8). All instruction is 1:1. The Tutoring Agency charges $110 per hour for 1:1 instruction (Parent’s Exhibit P-12).

Generally, compensatory services are not designed for the purpose of maximizing a student's potential or to guarantee that the student achieves a particular grade-level in the student's areas of need (see Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Rather, an award of compensatory education should place the student in the position that he would have been in had the district acted properly (see Parents of Student W., 31 F.3d at 1497 [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]).

The DOE did not present an alternative compensatory award. I find that the Agency Witness’ recommendations are reasonably based and are supported, in part, by the record. I note that Witness #2 did not specifically address the Student’s classification, his attention deficits, noted throughout the documents introduced into evidence (Parent’s Exhibits A-2-3, B-2-3, C-1, D-1, E-5-7, F-1-2,4-5 and G-2 and DOE’s Exhibits 6-2), and how, these factors affect the number of hours the Student can maintain attention after a full day in high school. IEPs noted the Student’s “decreased sustained attention” (Parent’s Exhibit G-4) and the Student’s “struggle to demonstrate focused attention during instruction” (Parent’s Exhibit H-3). Witness #2’s testimony assumes the Student will not progress to grade level, but hopes he reaches a grade 6 academic level. Student’s intelligence is within the extremely low range (Parent’s Exhibit H-12).

Although I found the Tutoring Agency Witness credible, based on her years of experience and the clarity of her responses at hearing, I do not think she factored in the Student’s individual characteristics, but rather relied on a standardized test administered by the Tutoring Agency, and the Parent’s desire, which appears to maximize the Student’s education while designing her own educational program for the Student. Specifically, with respect to the Parent’s educational decisions for the Student I note the Parent’s election to keep the Student in a school which does not have the recommended educational program, based on the convenient location of the School, and the Parent’s determinations in years past, to keep the Student out of school for doctor’s appointments, allergies and inconvenience to obtain Covid testing (Parent’s Exhibits C1-2, G-3-4 and N-6). Based on Witness #1’s recommendation, I am awarding the hours to be provided in person (Tr. 41-42).

It is not clear whether some of the Student’s academic challenges and difficulties stem completely from FAPE deprivations or in part, come from his excessive absences or him remaining in a school that could not implement the recommended program, all stemming from Parental choices (DOE Exhibit 6-2 and Parent’s Exhibits C1-2, E-2, G-3-4, H-3, N-6, and Tr. 51). I caution both the Parent and the District that the placement for the 2023-2024 school year should meet the requirements of the Student and not be dictated by Parental convenience or desire. I also note (i) that post pandemic the CSE determined that compensatory services were not needed (Parent’s Exhibit H-19); (ii) although Special Education Recovery Services were offered there is no evidence in the record as to whether they were utilized (DOE Exhibit 5)and (ii) different academic levels were assessed by the DOE and the Tutoring Agency, who is in the business of delivering tutoring hours for a fee (Parent’s Exhibits C-2, E-24, F-20, G-1-19, H-24 and P-8). Parents have based their requests for compensatory education on a full three-year calculation. All these above considerations have factored into my calculation of compensatory hours sought and awarded as follows: 915 compensatory hours of 1:1 tutoring hours (equivalent to approximately 8 hours per week for 38 weeks, for 3 years) - adjusted award: 777 compensatory hours of tutoring hours (i.e., -15%).

I am providing a three-year expiration for the compensatory award and ordering that the services can be used over the summer. I am limiting the total amount of Student’s after school and weekend services to eight hours a week. Student will thus have eight hours of out of school services per week, on top of a full school day with greatly increased 1:1 supports and services. That should result in a greatly enriched program of learning, which should favorably impact Student’s rate of progress.

The undersigned has reviewed the parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) Parent’s claim for compensatory education services for FAPE deprivations for the 2020-2021, 2021-2022 and 2022-2023 school years is granted.

(2) The DOE shall fund the following compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by Parent’s chosen

Provider, the Tutoring Agency at the rate of $110 per hour, limited to 777 hours for the compensatory service, to be used within three years from the date of this Order.

(3) The Tutoring Agency, as a condition of payment, shall deliver to the Impartial Hearing Office’s Implementation Unit, along with an invoice, a certification of services provided and a report of Student’s progress with respect to any hours implemented over the period invoiced, such progress reports to be delivered simultaneously to the CSE.

(4) The New York City Department of Education make payment to the Tutoring Center in the amount of $295 for the cost of diagnostic testing and $100 for the Tutoring Center’s registration fee.

(5) The New York City Department of Education shall provide for transportation to the Tutoring Agency in the form of a MetroCard for the Student.

(6) The DOE’s Implementation Unit shall authorize all compensatory services hereby ordered within 14 days of this Order. and issue authorized payments within thirty (30) days of invoice submission to the DOE.

(7) If not already provided, the DOE shall conduct a neuropsychological evaluation and a speech and language evaluation and the evaluations are to be conducted and reports finalized and issued within 45 days from the date of this Order. ^[6]

Dated: May 19, 2023

Michelle S. Babbitt

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

DISTRICT EVIDENCE

1. Prior Written Notice 10.31.22 October 2022 7 pages DOE

2. Prior Written Notice 6.2.22 June 2022 7 pages DOE

3. Prior Written Notice 1.11.21 January 2021 4 pages DOE

4. January2020 Prior Written Notice 1.17.20 7 pages DOE

5. Special Education Recovery Services 11.4.21 3 pages DOE

6. Psychological Update 1.10.20 2 pages DOE

7. Student Progress Report 9.28.22 2 pages DOE

8. Classroom Observation 1.6.20 2 pages DOE

PARENT EVIDENCE

A. Impartial Hearing Request 9.28.22 10 pages

B. Amended Impartial Hearing Request 1.13.23 10 pages

C. Psychological Update 1.14.20 2 pages

D. Classroom Observation 1.10.20 1 page

E. Individualized Education Program 1.14.20 26 pages

F. Individualized Education Program 1.5.21 22 pages

G. Individualized Education Program 12.22.21 21 pages

H. Individualized Education Program 10.3.22 26 pages

I. Student Report Card undated 1 page

J. Student Report Card undated 1 page

K. [REDACTED] Academic Evaluation Results 8.5.22 3 pages

L. [REDACTED] Individualized Prescribed Hours 8.25.22 3 pages

M. [REDACTED] Student Test Results 8.25.22 44 pages

N. Parent Affidavit: [REDACTED] 2.9.23 9 pages

O. Student Report Card 12.8.22 1 page

P. Provider Affidavit: [REDACTED] 2.3.23 13 pages

IHO EXHIBITS

1. email from DOE conceding Prong 1 1.13-2.23.23 2.23.23 9 pages IHO

2. DOE Closing Brief 4.21.23 5 pages IHO

3. Parent Closing Brief APPENDIX Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent Attorney/Representative [REDACTED] Witness # 1 [REDACTED] Parent or Witness # 2 [REDACTED] DOE Attorney/Representative [REDACTED] Tutoring Agency 4.21.23 18 pages IHO

Footnotes

[1] Paragraphs 14 and 15 of Parent’s Exhibit. N were stricken from the record. Information in paragraphs 12, 17 and 21 remained in the record (Tr. 21-22, 24-25) The redacted exhibit was provided to this tribunal on 5.18. 23.

[2] The scope of the impartial hearing is limited to the issues raised in the due process complaint. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), SRO decision 11-035, see also SRO decisions 10-105, 11-010, 12-044. The DOE objected to this tribunal considering issues not raised in the DPC (IHO 2-2).

[3] Witness #2 testified that she requested a para-professional for the Student only two weeks prior to the hearing (Tr.56- 58).

[4] “[It] may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services.” Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elem. and Secondary Schs. While Serving Children With Disabilities, 76 IDELR 104 (OSERS/OCR 2020).

[5] Available at http://www.p12.nysed.gov/specialed/publications/2020-memos/specialeducation-supplement-2-covid-qa-memo-6-20-2020.pdf.

[6] See IHO Exhibit 3-16-17-relief requested by Parent.