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FINDINGS OF FACT AND DECISION
BACKGROUND
The Parent, through their representative, filed a Due Process Complaint (DPC) on or about October 12, 2022. (Ex. A).
In the DPC, the Parent alleges as follows. The New York City Department of Education (DOE) failed to provide the Student with a free appropriate public education (FAPE) for the 2020-2021, 2021-2022, and 2022-2023 school years by failing to provide her with sufficient special education services and supports, given that the Committee on Special Education (CSE) was well aware of the Student’s significant delays and failure to make meaningful academic progress. The individualized education programs (IEPs) developed by the DOE’s CSE were all substantively deficient, in that the present levels of performance failed to describe the Student’s needs, academic deficits, or abilities in any meaningful detail, and the goals were not designed to effectively address the Student’s needs, were not measurable, and were impermissibly vague. In addition, the DOE failed to adopt or consider the recommendations of the Psychologist who performed a comprehensive neuropsychological evaluation of the Student in May 2021, and the DOE and CSE failed to provide the Parent with appropriate prior written notices (PWNs). The Parent seeks an order that the Student be provided with an appropriate IEP that incorporates the recommendations of the Psychologist’s evaluation and provides increased supports and services, that the Student receive a compensatory education award of 1:1 tutoring by the Private Services Provider at an enhanced market rate, that the DOE pay the Private Services Provider for the cost of diagnostic testing and registration, and that the DOE provide transportation to and from the Private Services Provider in the form of MetroCards for the Student and Parent. (Ex. A).
PROCEDURAL HISTORY
I was appointed on January 5, 2023. On January 6, 2023 the Parent requested an extension of the compliance period, which I granted. (IHO Ex. I). A prehearing conference was held on January 20, 2023. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. II). A status conference was held on February 7, 2023, at which the Parent Representative and DOE Representative agreed to set a hearing date of March 13, 2023. At that time, the Parent moved for an extension of the compliance period, which I granted. (IHO Ex. III). On March 9, 2023, the DOE Representative sent an email requesting that the hearing be rescheduled. The Parent Representative opposed the request, and I denied the request by email on March 9, 2023. (IHO Ex. IV). On March 13, 2023, both parties appeared for the hearing. At that time, the parties jointly moved for an extension of the compliance period, which I granted. (IHO Ex. V). The DOE did not introduce any witness testimony nor any other evidence. The Parent submitted ten exhibits into the record. Included in Parent’s evidence were two direct testimony affidavits from the Parent and the Director of the Private Services Provider (Director). The DOE Representative cross-examined the Parent only. Both representatives made oral closings. (See March 13, 2023 Transcript).
FINDINGS OF FACT AND DECISION
After a full review of the record generated at hearing, I make the following findings of fact and determinations.
The Parent testified credibly as follows. The Student is classified as Learning Disabled. She tries to do well in school but struggles in core areas like reading, writing, and math. The Student’s most recent IEP dated November 5, 2021 recommends a 12:1+1 Special Class along with related services of speech and language therapy (S/L). (Parent Aff. at ¶¶ 3-4, 6; Ex. B). The Student currently attends 7th grade at the Public School, which she entered for the 2021-2022 school year as a 6th grader. The Student previously attended the Charter School for the 2018-2019, 2019-2020, and 2020-2021 school years. (Parent Aff. at ¶¶ 5, 7). The Student is behind her same-aged peers in core academic areas and is not showing signs of meaningful progress in school. According to her report cards and IEPs, she has consistently been below standards in many areas. Her promotion has been in doubt during the 2020-2021, 2021-2022, and 2022-2023 school years. Despite evidence that the Student has not been achieving meaningful progress, the DOE has continued to recommend programs and placements that have not been effective or appropriate during the school years at issue. (Id. at ¶¶ 11-13). Entering 5th grade in the 2020-2021 school year, the Student was struggling in core academic areas, and needed more special education assistance and individualized instruction. Her November 13, 2020 IEP noted she was on a 1st grade level in reading and math, and needed a lot of teacher support to access 5th grade material. However, the DOE only recommended an integrated co-teaching (ICT) classroom and five periods of special education teacher support services (SETSS), which was not sufficient. (Id. at ¶¶ 14-17; Ex. C). Predictably the Student struggled during the 2020-2021 school year and did not experience meaningful progress. (Parent Aff. at ¶ 18). Entering the 6th grade for the 2021-2022 school year, the Student was still having difficulty in reading, writing, and math, but the CSE only recommended a 12:1+1 classroom with no individualized supports. The Student continued to struggle throughout the school year and failed to make meaningful progress. (Id. at ¶¶ 19-23; Ex. B). Entering the 2022-2023 school year, the Student needed a lot more help, but the DOE only continued her program in the 12:1+1 classroom, which was not sufficient and has proven ineffective. The Student is still behind her same aged peers in core academic areas, has failed to progress during the school years at issue, and the DOE has failed to provide appropriate special education instruction and services. (Parent Aff. at ¶¶ 24-26).
In May 2021, the Student was comprehensively evaluated by the Psychologist, who found that she presents with and meets the criteria for a language disorder, and that her history and pattern of performance is consistent with a Specific Learning Disorder with an impairment in reading. He also found that the Student’s reading and language deficits have a significant impact on her ability to complete math word problems, and that she also meets the criteria for a Specific Learning Disorder with an impairment in mathematics. For writing, the Student has significant difficulty related to her dyslexia and language disorder, which impacts her ability to understand writing prompts and spell or encode words, with such deficits resulting in her meeting the criteria for a Specific Learning Disorder with an impairment in written expression. (Parent Aff. at ¶ 27; Ex. E). The Psychologist found that given the magnitude of the Student’s academic delays within the context of her strengths in socialization and adaptive skills, she requires a small, structured academic environment that includes hands-on learning, and given her language disorder and slow pace of working, she requires an individualized curriculum with teachers and staff who have experience with similar students in a specialized nonpublic school (NPS). (Parent Aff. at ¶ 28; Ex. E). Despite such findings, the DOE failed to adopt or seriously consider the Psychologist’s recommendations. The Parent believes the CSE should be ordered to convene to develop an appropriate IEP that incorporates the recommendations of the Psychologist by providing increased supports and services and recommending that the Student be placed in an NPS. (Parent Aff. at ¶ 29). The Parent further requests that the Student be awarded with tutoring services to address the DOE’s failure to provide her with an appropriate program and placement. In January 2023, the Student was assessed by the Private Services Provider, and the testing confirmed that the Student was far behind her peers academically and in need of remediation. The Parent requests that the Student be provided with tutoring services by the Private Services Provider as they can deliver appropriate remedial tutoring and programming to the Student that will allow her to progress and get back on track academically. (Id. at ¶¶ 33-37). The Parent requires MetroCards for herself and the Student to access the Private Services Provider, as she cannot afford such transportation. (Id. at ¶ 38).
The Director of the Private Services Provider testified credibly as follows. She has worked at the Private Services Provider for 21 years, and is responsible for the learning center operations, including all tutoring programs for enrolled students. The Private Services Provider is a full-service learning center offering individualized tutoring in reading, writing, math and subject tutoring, with over 50 certified teachers, many with special education certifications. They work with regular and special education students from kindergarten through high school. (Director Aff. at ¶¶ 1-3). The Director is familiar with the Student, who was tested at the Private Services Provider on January 16, 2023 to determine her highest level of skill mastery, gaps in her academic skill, and to develop a program of instruction to meet her needs. The testing was administered 1:1 by a certified teacher under the Director’s direction. (Id. at ¶ 5). The testing found that the Student was five years below grade level in both English language arts (ELA) and math skills, with significant gaps in her academic skills across all areas. (Ex. F) Based on the totality of the testing, the Director characterizes the Student’s independent level to be first grade in ELA and second grade in math. (Id. at ¶¶ 9, 31). The Director has determined that in order to remediate the Student’s deficits and allow her to reach a 7th grade level, it would take approximately 859 hours of 1:1 tutoring by a highly trained teacher, such as those employed at the Private Services Provider. The Private Services Provider has formulated a prescribed curriculum required for the Student to reach this level of academic skills. The number of hours is determined by the testing performed on the Student, and establishes the recommended level of tutoring necessary to allow the Student to make anything more than trivial academic advancement. (Director Aff. at ¶ 33; Ex. G). The curriculum of individualized prescribed hours (Ex. G) identifies the skills to be worked on based on the testing results in each area where remediation is needed to close the Student’s academic gaps in a logical and sequential manner. (Director Aff. at ¶ 35). The Private Services Provider identifies which techniques are most effective with working with a student, and finds multi-sensory instruction effective for students with identified learning disabilities. Because the sessions are 1:1, the instructors can quickly determine which strategies are effective for each individual student, so the instructional approach can be modified when necessary. Depending on the Student’s response to instruction, the Private Services Provider will have certified special education teachers employ the multi-sensory instructional materials that best meet her instructional needs. (Id. at ¶ 47). The Director is confident that if the Student is given the opportunity to participate in the program developed for her at the Private Services Provider, she will be able to make meaningful academic progress, build her confidence level, and learn how to retain and build upon what she has learned outside of the tutoring setting. The fee for the Private Services Provider’s diagnostic evaluation is $295, the registration fee is $100, and tuition is billed at the rate of $110 per hour for 1:1 instruction. The Private Services Provider is open seven days a week to allow students the greatest amount of flexibility and opportunity in scheduling tutoring sessions. (Id. at ¶ 49).
FAPE
The IDEA provides that children with disabilities are entitled to a 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 IEP. (20 U.S.C. § 1401(9)). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
Compensatory Relief
Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA, see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454.
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place", and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).
Analysis
The DOE had the burden of proof on all matters at this hearing.[1] It had both the burden of production and the burden of persuasion on each claim put forth by the Parent.[2] Specifically, the DOE bears “the burden of demonstrating the appropriateness of its proposed IEP.”[3] Further, the SRO has found that allegations that are left unchallenged are deemed as true “unless found to be inconsistent with the evidence in the record.”[4] The DOE’s silence at a hearing has the effect of conceding every point alleged by the Parent against the DOE unless it is inconsistent with the hearing record.[5] Further, [U[nder State law as set forth above, the burden of proof has been placed on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. (Educ. Law § 4404[1][c]). In the instant case, there was no unilateral placement by the parent or request for tuition reimbursement. [6]
Since this case does not involve a unilateral placement/tuition reimbursement claim, the DOE has the burden of proof on all FAPE issues.
The DOE is required under the due process procedures set forth in New York State law to address its burdens by describing 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 he would have been but for the denial of a FAPE. The DOE had an opportunity during the impartial hearing to set forth its position regarding the appropriate compensatory education remedy. The DOE did not introduce any evidence regarding appropriate relief.
On this record I find that the DOE failed to meet its burden that the Student was provided a FAPE for the 2020-2021, 2021-2022, or 2022-2023 school years, presenting no witnesses or other evidence at the hearing. Moreover, a review of the Parent’s evidence further supports the conclusion that the DOE failed to offer the Student an educational program reasonably calculated to offer a FAPE for the school years at issue. I credit the Parent’s testimony that for the 2020-2021, 2021-2022, and 2022-2023 school years, the DOE continued to recommend programs and placements for the Student that were not reasonably calculated to enable her to make progress in light of her circumstances, with the recommended programs of first an ICT classroom with minimal SETSS and then a 12:1+1 special classroom with no individualized supports being inadequate to enable the Student to receive educational benefits given her significant documented delays across all academic areas when the IEPs were formulated. As a result, the Student continued to struggle throughout the school years in question and failed to make meaningful progress. (Parent Aff. at ¶¶ 19-26; Exs. B, C & D). I also credit the Psychologist’s 2021 neuropsychological evaluation finding that given the magnitude of the Student’s academic delays, she required placement in a small, structured academic environment with hands-on learning and an individualized curriculum, and the DOE’s recommended programs failed to provide the Student with educational instruction specially designed to meet her unique needs or allow her to benefit from such instruction. (Ex. E).
As the DOE failed to provide the Student with a FAPE for the 2020-2021, 2021-2022, or 2022-2023 school years, I find that an award of additional services would place the Student in the position she would have been in had the DOE complied with its obligations under the IDEA. I credit the testimony of the Private Services Provider Director that based on the comprehensive testing performed on the Student by the Private Services Provider on January 16, 2023, the Student was found to be five years below grade level in both English language arts (ELA) and math skills, with significant gaps in her academic skills across all areas (Director Aff. at ¶¶ 9, 31; Exs. F, H). I further credit the Director’s testimony that in order to remediate the Student’s deficits resulting from the DOE’s failure to offer the Student a FAPE for the school years in question, the curriculum of individualized prescribed hours formulated by the Private Services Provider determined it would take approximately 859 hours of 1:1 tutoring by qualified teachers such as those employed at the Private Services Provider to provide the necessary compensatory education to the Student across all academic areas. I find that the curriculum of individualized prescribed hours formulated by the Private Services Provider would allow the Student to receive an educational benefit and place her in the position she would have been in had the DOE complied with its obligations to provide a FAPE for the school years in question. (Director Aff. at ¶¶ 33, 35; Ex. G). I further find that equitable considerations favor that the DOE pay the cost of the $100 registration fee and $295 diagnostic evaluation fee to the Private Services Provider, and that the DOE provide both the Student and Parent with MetroCards in an amount sufficient for them travel to and from the Private Services Provider to receive the Student’s 1:1 tutoring services. I note there is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with a FAPE on an equitable basis for the 2020-2021, 2021-2022, or 2022-2023 school years.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:
1. The CSE will promptly convene and develop an IEP and appropriate program for the Student that addresses her individual learning needs, creates meaningful and measurable goals to address the Student’s academic deficits, and which incorporates the recommendations of the Psychologist’s 2021 neuropsychological evaluation; and
2. The DOE shall fund, as compensatory relief, the following services for the 2020-2021, 2021-2022, and 2022-2023 school years: 859 hours of 1:1 tutoring by the Private Services Provider to be scheduled at the Parent’s discretion at a market rate of $110 per hour, and the DOE shall issue payment directly to Private Services Provider within 30 days of a copy of the invoice. The bank of services described herein shall not have an expiration date; and
3. The DOE shall, within 15 days of the date of this Order, pay the Private Services Provider $100 for the Student’s registration fee and $295 for the Student’s diagnostic testing fee, for a total of $395; and
4. The DOE shall, within 15 days of the date of this Order, provide the Parent with two (2) MetroCards in an amount sufficient for the Parent and Student to travel to and from the Private Services Provider on a daily basis for the Student to receive the 1:1 tutoring awarded herein as compensatory services, until such 1:1 tutoring has been completed.
SO ORDERED
Dated: March 27, 2023
_Philip Sturges_______
Philip P. Sturges
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.
Footnotes
[1] Education Law § 4404(1)(c); M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224-25 (2d Cir. 2012).
[2] See Schaffer v. Weast, 546 U.S. 49 (2005); M.P.G. v. N.Y.C. Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[3] Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir. 2003).
[4] Appeal No. 01-044 (SRO March 27, 2002); see also SRO Appeal No. 12-006 at 8.
[5] Id.; see also SRO Appeal No. 19-038 at 28 (a district’s default deems all violations alleged in a due process complaint notice to be deemed true).