New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 589562 NYC: 240591

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents and the child will be referred to as Student.

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint on October 24, 2022 by Parent (Parent Ex. A). Parent claims a denial of FAPE for three school years: 2020/21, 2021/22 and 2022/23. Parents seeks a bank of extensive compensatory tutoring hours through the [redacted]as the appropriate remedy to address the claimed denial of FAPE and to bring Student up to grade level in reading and math and other academics.

The undersigned was appointed as Impartial Hearing Officer on December 20, 2022.

Hearings were held on numerous dates. During the course of the hearing, the parties moved as necessary to extend the case compliance date in this matter in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering such requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delay in the resolution of the matter and the extension of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (IHO Exhibits). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

The hearing record was closed effective June 10, 2023.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458

U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP (20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see 20 U.S.C. § 1414[d]; 34 CFR 300.320). The school district must provide special education and related services to a student with a disability in accordance with the student's IEP and must make a good faith effort to assist the student to achieve the annual goals and, if appropriate, short-term instructional objectives or benchmarks listed in the student's IEP. See 8 NYCRR 200.4(e)(7). With regard to the implementation of a student's IEP, a denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way (T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S., 2011 WL 3919040, at *13; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; see A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205 [2d Cir. 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 822 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000]). In order to show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimis failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP (see Houston Indep. Sch. Dist., 200 F.3d at 349; see also Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524–25 [3d Cir. 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho RV Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]). Accordingly, in reviewing failure to implement claims under the IDEA, courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material" (A.P., 370 Fed. App'x at 205; see Van Duyn, 502 F.3d at 822 [holding that a "material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled [student] and the services required by the [student's] IEP"]; see also Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D. D.C. 2007] [holding that where a student missed a 'handful' of speech-language therapy sessions as a result of the therapist's absence or due to the student's fatigue, nevertheless, the student received consistent speech-language therapy in accordance with his IEP, and the district's failure to follow the IEP was excusable under the circumstances and did not amount to a failure to implement the student's program]).

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

The burden of proof to establish that a FAPE has been offered to the Student is 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]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if :

1. the services offered by the board of education were inadequate or inappropriate;

2. the services selected by the parents were appropriate; and

3. equitable considerations support the parents' claim. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

Generally, in applying the three-prong standard in a tuition-reimbursement case enunciated by the Supreme Court of the United States in the Burlington and Carter decisions above-cited, it is necessary, in consideration of the issues presented, to first determine whether or not the School District offered the Student a free, appropriate public education (FAPE). The burden of establishing that it did so rests upon the District (N.Y.S. Education Law§4404). Under the guidelines established by Burlington and Carter, if a determination is made that District did in fact offer the Student a FAPE for the relevant school year, the inquiry into the Parent’s request for tuition reimbursement for the unilateral placement would cease; once a District has offered FAPE, a parent’s right to the requested relief of tuition reimbursement must be denied. Similarly, if it is determined that the District failed to establish that it provided a FAPE to the Student, then a further determination must be made as to the appropriateness of the Parent’s unilaterally-selected school. The burden of establishing such appropriateness falls upon Parent (N.Y.S. Education Law §4404). See also Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007), which held that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”. Similarly, Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006). Once a unilateral placement has been demonstrated to meet such standards of appropriateness, a review of the equities must be undertaken to determine whether equitable considerations favor an award of relief to the parent, a necessary prerequisite for such an award.

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student

W. v. Puyallup Sch. Dist., 31F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; 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"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12-135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”).

Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

FACTUAL BACKGROUND AND ANALYSIS

There are two main issues presented for this hearing. First, whether the DOE has provided Student with a FAPE for the 2020/21, 2021/22 and 2022/23 school years at issue. Secondly, to the extent that a denial of FAPE may have occurred for any such school year, what the appropriate remedy for such FAPE denial is.

In that regard, it is noted that Student was, at the beginning of the 2020/21 school year, an 11+ year old child known to the DOE as a child with a disability, with a DOE classification of Learning Disability. According to the IEP dated January 26, 2020 (Parent Ex. H; DOE Ex. 4), the IEP created for the first year of review for this hearing, Student was in the 5th grade but at the middle-third grade level in reading, with his reading at a slow pace, monotonous and neglecting punctuation. He also demonstrated difficulty with long periods of independent reading, lacked phonemic awareness, and demonstrated difficulty with blending and pronouncing sight words. In math, Student was also performing below grade-level and had difficulty accessing grade-level content, requiring drawings and/or manipulatives to solve all problems. He also demonstrated difficulty solving multiplication and division problems, and could not visualize through math word problem language. Negative feedback on his work usually had a negative effect on his emotions, resulting in shut-down behaviors, such as pulling his sweater over his head, or sliding down in his chair, leaving his assignment uncompleted.

According to the IEP created for the second year of review for this hearing (the 2021/22 school year), dated March 25, 2021 (Parent Ex. G; DOE Ex. 10), Student, in the 6th grade, was only in the late 3rd grade/early 4th grade level (Fountas and Pinnell Reading Level P), presenting with minimal comprehension of a text. In writing, he presented with significant difficulty in completing writing tasks and required one-to-one support from his teachers in order to remain focused during writing tasks. He also had difficulty initiating writing work. In math, Student was measured as performing approximately two years below grade-level and had difficulty accessing grade-level content on a daily basis, requiring visual aids and 3-4 or more repetitions to solve all problems, regardless of operation and demonstrating difficulty solving multiplication and division problems.

According to the most recent IEP conducted for Student, created during the 2022/23 school year, dated January 26, 2023 (Parent Ex. D), which references a previously conducted Literary Assessment, Student, in the 7th grade at the time of such assessment, was reading at the Fountas & Pinnell 3rd grade level, a regression from his 6th grade reading score; according to a second assessment known as the iReady Diagnostic Assessment, which examines a variety of skills, including Phonological Awareness, Phonics, High Frequency Words, Vocabulary, and Reading Comprehension, Student was assessed at the 5th grade level in reading and at the 2nd grade level in math.

According to a series of assessments conducted by the [redacted] at the behest of Parent, including the Slosson Visual-Motor Performance Test for Children and Adults, the Slosson Oral Reading Test, the Chall Phonetic Analysis, Rosner’s Test of Auditory Perception, the Burns and Roe Informal Reading Inventory, the STAR Reading Assessment, and a writing sample from Student, he was measured to be operating at least five years below grade level in verbal (ELA) and math skills, with significant gaps in his academic skills across all areas (Parent Ex. O).

Thus, by both the DOE’s own evaluation and IEP documents, as well as Parent’s own assessment of Student, Student was clearly and significantly behind in his reading and math skills at the beginning of the 2022/23 school year.

The DOE bears the burden of establishing the provision of a FAPE for each school year at issue for the hearing. In that regard, although some documentation was entered into the hearing record regarding the school years at issue, no witness testimony was presented by the DOE regarding either the 2021/22 or 2022/23 school years to establish the appropriateness of Student’s IEP for either school year, nor was testimony provided to establish how the CSE utilized any documentation or assessments in crafting Student’s IEP for either the 2021/22 or 2022/23 school year, including the creation of appropriate goals or management needs, nor was any testimony provided as to how the recommended placement for Student for both the 2021/22 and 2022/23 school years addressed Student’s particular educational deficits. Accordingly, the DOE has failed to establish the provision of a FAPE for the 2021/22 and 2022/23 school years.

Regarding the 2020/21 school year, the DOE presented one witness, the Teacher Assigned who attended the IEP meeting dated March 26, 2020 (DOE Ex. 4), with an implementation date of April 2, 2020, and which recommended a Special Class (12:1) for ELA and math and an Integrated Co-Teaching Class (ICT) for social studies and science, together with related services of occupational therapy, physical therapy, and speech language therapy. The witness testified that she had no actual recollection of this IEP meeting, but did acknowledge Student being behind at least several grade levels in reading and math (Tr. p. 82-83). The witness also testified that, due to concerns about Student falling significantly behind grade level in his academics, she believed a psychoeducational evaluation to be appropriate to get a better understanding of Student’s deficits (Tr. p. 90).

On cross examination, the witness could not state whether the recommended psychoeducational evaluation was ever conducted (Tr. p. 93). The witness also testified that Student was failing in social studies and science, the two classes that were in the less-restrictive ICT setting (Tr. p. 94-95).

On redirect, the witness testified that Student was unable to be placed in a 12:1 setting for social studies and science because his charter school did not have such a placement, and that the only way to place Student in a 12:1 setting for all of his subjects would be to move him to another school location, but that Parent did not agree with a 12:1 placement for all classes, nor did she want Student moved from his charter school (Tr. p. 95; 97-99).

Student’s Speech Language Progress Report dated March 26, 2020 (DOE Ex. 3), ostensibly reviewed in preparation for the IEP meeting at issue, notes that Student presented at the time of the meeting with both expressive and receptive language difficulties characterized by difficulty answering and comprehending “wh” questions, identifying imperative story details with the use of context clues, utilizing vocabulary and identifying word meaning, inferencing, and answering written response questions. He also demonstrated a limited vocabulary which hindered his skill to effectively understand new information being presented during sessions, and benefitted from oneto-one conferring before completing all tasks as he often required help answering questions related to texts that have been read aloud. He also demonstrated difficulty with questions that required him to inference, and will make multiple quick guesses rather than using evidence to support his answer. Expressively, Student required tasks being broken down for him to effectively answer questions. Due to his limited vocabulary, it was difficult for him to understand higher lever passages and required clarification in order to understand the text.

In reviewing whether a FAPE was provided to Student for the 2020/21 school year, several factors are presented. First, as noted above, all IEPs must be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All evaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related service needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Furthermore, under the IDEA, a CSE may be required to consider special factors in the development of a student's IEP. Among the special factors in the case of a student whose behavior impedes his learning or that of others, the CSE must consider positive behavioral interventions and supports, and other strategies, to address that behavior (20 U.S.C. § 1414[d][3][B][i]; 34 CFR 300.324[a][2][i]; see 8 NYCRR 200.4[d][3][i]; see E.H. v. Board of Educ., 361 Fed. App'x 156, 160-61, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; A.C., 553 F.3d at 172; J.A. v. East Ramapo Cent. Sch. Dist., 603 F. Supp. 2d 684, 689 [S.D.N.Y. 2009]; M.M. v. New York City Dep't of Educ., 583 F. Supp. 2d 498, 510 [S.D.N.Y. 2008]; Tarlowe, 2008 WL 2736027, at *8; W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 149-50 [S.D.N.Y. 2006]). To the extent necessary to offer a student an appropriate educational program, an IEP must identify the supplementary aids and services to be provided to the student (20 U.S.C. § 1414[d][1][A][i][IV]; 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v][a], [b][3]; Piazza v. Florida Union Free Sch. Dist., 2011 WL 1458100, at *1 [S.D.N.Y. Apr. 7, 2011]; Gavrity v. New Lebanon Cent. Sch. Dist., 2009 WL 3164435, at *30 [N.D.N.Y. Sept. 29, 2009]; P.K. v. Bedford Cent. Sch. Dist., 569 F. Supp. 2d 371, 380 [S.D.N.Y. 2008]).

In that regard, and despite the IEP dated March 26, 2020, created for the 2020/21 school year, having noted that Student, when not interested in something or when met with a challenge, would often “shut down” (including behaviors such as refusing to speak or answer questions, becoming immobile, refusing to move his body and/or bending over, allowing his upper body to hang upside down), as well as demonstrate difficulty following rules, routines, and procedures set in the classroom, the DOE nevertheless declined to conduct a Functional Behavior Assessment and Behavior Intervention Plan, an egregious omission in the face of these interfering behaviors. Nor was testimony presented to establish that goals or management needs were created to address such behaviors. In fact, there was no testimony at all during the hearing concerning the creation of the goals and management needs for the 2020/21 school year or how such goals and/or management needs, to the extent contained in the IEP, would address Student’s educational and behavioral deficits. Additionally, although the hearing record establishes that the CSE recognized the need for a psychoeducational evaluation of Student to better understand his needs and to address such needs, no such evaluation ever took place, nor does the record establish that evaluations of any kind were conducted prior to the creation of the 2020/21 IEP.

Secondly, the DOE claimed that it would have recommended what it considered a more appropriate placement for Student (i.e., a 12:1 placement for all classes) but that Parent preferred for Student to remain at his charter school, which did not offer such placement for all classes. However, a parental “preference” does not absolve the DOE from its responsibility to create and offer what it reasonably believes to be an appropriate educational placement for Student. It cannot merely acquiesce to the preference of a parent where it believes such preference to be deficient in addressing Student’s needs; in such way, it is improperly shifting its responsibility to create an appropriate educational placement in deference to the parent. Rather, it is required to create and recommend a placement that reasonably addresses a student’s educational needs, albeit with Parent input as a member of its team, but still based on what it believes to be the appropriate placement. In such way, the parent at least has the option of considering an alternative placement. In failing to do so, the DOE has deprived Parent of the option of considering a more appropriate alternative placement, and has failed to comply with its primary responsibility to create an appropriate educational placement for Student.

Further, to the extent that the DOE acceded to Parent’s desire to have Student remain at a school placement that could not offer Student a fulltime 12:1 class for all subjects, and despite its insistence that a fulltime 12:1 class placement would have been appropriate, the hearing record fails to establish that, even if a 12:1 placement for all classes was actually offered, that it would have even been appropriate for Student. Documentation entered into evidence establishes that Student, even in his 12:1 classes at his charter school, was still performing poorly. The IEP at issue notes that Student learns best in an environment that is small, calm, and consistent with 1 :1 support from adults, yet there was no evidence at the hearing to establish that such level of support would have been provided in the 12:1 setting that the DOE claims Student required, yet nevertheless failed to recommend. Appropriate evaluations could have made clear Student’s need for a more restrictive setting, but no such evaluations were conducted or considered.

Thus, for the reasons cited above, the hearing record fails to establish that the IEP created for Student for the 2020/21 school year constituted a FAPE.

Attention is now turned to the appropriate remedy for the denial of FAPE for the 2020/21, 2021/22 and 2022/23 school years. As noted above, compensatory educational services serve as an appropriate remedy for a denial of a FAPE, designed to "make up” for such FAPE denial, through the use of a fact-specific plan reasonably calculated to provide the educational benefits that likely would have accrued from special education services that should have been provided to Student in the first place, with the ultimate aim being to place Student in the position he would have been in had the DOE met its obligations under the IDEA in the first place. In the instant case, compensatory tutoring is sought to bring Student up to grade level in his academics.

We therefore begin at Student’s functional level at the present time, as the 2022/23 school year comes to a close and Student will be preparing to enter the 8th grade. An appropriate compensatory plan would be one that allows Student to ascend to 8th grade level in his academics. It is necessary, therefore, to ascertain Student’s academic level at this point in time to determine the exact compensatory plan necessary to achieve the goal of bringing Student to grade level.

In that regard, there was only one document presented into the hearing record that serves as a comprehensive evaluation of Student’s academic functioning at the present time – the [redacted] Academic Evaluation Results (Parent Ex. L), and which therefore must be given particular deference. A full explanation of the results of such evaluation was provided by the Director of [redacted], whose testimony appeared by affidavit dated April 25, 2023 (Parent Ex. O). By such affidavit, the witness testified to several assessments given to Student to measure all areas of his academics and testified that, based on such assessments, Student was functioning at the approximate 4th grade level and would require 1,012 hours of compensatory tutoring to bring him up to present grade level.

The Chall Phonetic Analysis and Rosner's Test of Auditory Perception measured Student’s phonemic awareness, where he scored at approximately kindergarten level. The Burns and Roe Informal Reading Inventory assessed Student’s fluency in reading orally and his comprehension of passages that he has just read. He was measured at being 2 levels below grade level. The recommended remedial plan for phonics, including instruction and practice on short vowels and multi-syllable word decoding, auditory perception, and several pieces of multi-sensory curriculum, found to be effective with students who have identified learning difficulties, was 100 hours.

An assessment testing Student’s writing ability resulted in a level of proficiency between late kindergarten/early 1st grade. The recommended remedial plan for writing, including writing sentences in conjunction with vocabulary development, working on paragraph structure and language mechanics, and eventually essay development, was 60 hours.

The [redacted] Math Placement Exam, which measured Student’s level of performance in math computation and problem-solving, resulted in Student not being able to master many of the skills tested. The recommended remedial plan for math, including Student’s need to master 54 separate math skills in which he performed poorly, requiring approximately five hours per skill, was 270 hours.

An additional 30 hours was recommended for study skills, including note-taking and outlining, to help improve day-to-day performance as well as for preparation for tests and completion of longer-term projects.

There are two additional areas of recommended remediation that require further examination. The Star Assessment for reading comprehension, a nationally normed, multiplechoice, standardized test that measures reading comprehension, assessed Student at the 5.7 grade level, more than 1 grade level below where he should be. However, the recommended remedial plan for reading comprehension was for Student to begin at the kindergarten level. The Slosson Oral Reading Test measured Student’s level of mastery with sight word recognition. On the kindergarten list, Student scored a 95% proficiency (able to pronounce 19 of 20 words presented); on the first-grade list, he scored a 90% proficiency (able to pronounce 18 of the 20 words presented); on second-grade list, he scored a 95% proficiency (able to pronounce 19 of 20 words correctly); on the third-grade list, he scored an 85% proficiency (able to pronounce 17 of 20 words correctly). However, the recommended remedial plan for oral reading was also for Student to begin at the kindergarten level.

In reviewing the recommended remedial plan for reading comprehension and oral reading, it must be noted that the remedial plan proposed by Parent’s tutor seeks a level of perfection not required under the IDEA, which requires only that a student make meaningful progress in an educational program reasonably calculated to enable such appropriate progress in light of his circumstances. A student that is proficient (90-95%) in three separate grade levels (kindergarten through 2nd grade), and nearly proficient (85%) in a fourth grade level (grade 3) cannot be said to not have made reasonable progress. While it is clear that Student, at the time of the issuance of this Decision, is at or near only a 4th grade level in reading in oral reading, and at an approximate 5th grade level in reading comprehension, for which he is entitled to remedial tutoring, the law does not mandate, and the hearing record does not support, remedial tutoring back to the kindergarten level. The witness testified that approximately 237 hours were allocated for tutoring in these areas for kindergarten through the 3rd grade level (Tr. p. 128-130). As Student was measured to have achieved levels of proficiency/near proficiency in these areas, having scored in the 85-95 percentiles, but is clearly not beyond the 4th grade level in these specific areas, the final compensatory award will reflect the deduction of 237 hours from the proposed total of 1,012 hours sought, or a total of 775 compensatory hours.

There was no evidence presented at the hearing to establish that the rate charged for each hour of individualized tutoring was either unreasonable or beyond the market rate for such services. Accordingly, the provider shall be awarded the rate of $110.00 per hour for individualized instruction. Additionally, as the diagnostic evaluation was required to assess Student, the fee for such service of $295.00 is also awarded, as is the required registration fee of $100.00 for Student’s enrollment, also a necessary component of the remedial plan.

Finally, Parent seeks transportation to and from Student’s tutoring sessions, in the form of a Metro Card for Student and herself, stating that Student is unable to travel by himself (Tr. p. 188). Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Additionally, Hearing Officers are imbued with the authority to grant the relief necessary, under the particular facts and circumstances of a case, to ensure that a child receive the free, appropriate public education to which he/she is entitled. Letter to Armstrong, 28 IDELR at 304. See also Carter v. Florence County School District, 510 US 7 (1993), which held: [O]nce a court holds that the public placement violated IDEA, it is authorized to ‘grant such relief as the court determines is appropriate.’ 20 U.S.C. § 1415(e)(2). Under this provision, ‘equitable considerations are relevant in fashioning relief,’ Burlington, 471 U.S., at 374, 105 S.Ct., at 2005, and the court enjoys ‘broad discretion’ in so doing, id., at 369, 105 S.Ct., at 2002. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Id. at 15-16 (1993). In the instant case, as compensatory relief is ordered as the appropriate educational placement for Student for the three school years at issue, the requirement for the provision of transportation applies to such relief the same as would be required for a school placement. Additionally, the relief being sought is the least expensive type of transportation available for the tutoring services, and is therefore not only reasonable but found to be appropriate under equity considerations. Accordingly, such transportation funding will be ordered in order for Student to access the compensatory services for which he is eligible.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED:

1. The DOE is determined to have denied a FAPE for Student for the 2020/21, 2021/22 and 2022/23 school years.

2. To compensate Student for the above-noted denial of FAPE, Student is awarded the following:

a. Tutoring of 775 hours at the [redacted], at a rate of $110.00 per hour for individualized tutoring, the frequency of which shall be at the discretion of the provider to best serve Student’s interest, without expiration;

b. Funding (or if paid by Parent, then reimbursement upon proof of payment) of the diagnostic evaluation fee in the amount of $295.00;

c. Funding (or if paid by Parent, then reimbursement upon proof of payment) of the registration fee in the amount of $100.00.

d. Round trip Metro Card funding for transportation for Student and Parent, when necessary, to attend compensatory tutoring sessions ordered above.

3. The DOE shall comply in all respects with this Decision and Order.

Dated: June 20, 2023

BRUCE S. OLINGER, ESQ.

Impartial Hearing Officer

APPEAL RIGHTS

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 the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Impartial Hearing Request, dated 10/21/22 (11pp.)

B. Resolution Agreement, dated 2/10/23 (3pp.)

C. [redacted] Charter School: [redacted] Report Card, dated 2021-2022 (2pp.)

D. Individualized Education Program, dated 1/26/23 (35pp.)

E. Individualized Education Program, dated 5/9/22 (33pp.)

F. Individualized Education Program, dated 3/17/22 (30pp.)

G. Individualized Education Program, dated 3/25/21 (31pp.)

H. Individualized Education Program, dated 3/26/20 (33pp.)

I. [redacted] Charter School: [redacted] IEP Academic Report, dated 3/7/22 (7pp.)

J. [redacted] Charter School: [redacted] Middle School IEP Academic Report, dated 3/12/21 (12pp.)

K. [redacted] Charter School: [redacted] K-4 IEP Teacher Report, dated 3/17/20 (9pp.)

L. [redacted] Student Academic Evaluation Results, dated 10/5/22 (3pp.)

M. [redacted] Individualized Prescribed Hours, dated 10/5/22 (3pp.)

N. [redacted] Student Test Results, dated 10/5/22 (47pp.)

O. Provider Affidavit: [redacted], dated 4/25/23 (15pp.)

P. Neuropsychological Assessment, dated 4/6/23 (15pp.)

Q. Psychiatric Assessment, dated 3/14/23 (6pp.)

DEPARTMENT OF EDUCATION

1. Physical Therapy (PT) Progress Report, dated 3/22/20 (2 pages)

2. Occupational Therapy (OT) Progress Report, dated 3/25/20 (2 pages)

3. Speech/Language (SL) Progress Report, dated 3/26/20 (3 pages)

4. Individualized Education Program (IEP), dated 3/26/20 (33 pages)

5. Prior Written Notice (PWN), dated 3/27/20 (4 pages)

6. PT Progress Report, dated 2/27/21 (2 pages)

7. SL Progress Report, dated 3/28/21 (5 pages)

8. Teacher Report, dated 3/12/21 (7 pages)

9. OT Progress Report, dated 3/22/21 (2 pages)

10. IEP, dated 3/25/21 (31 pages)

11. PWN, dated 3/26/21 (4 pages)

12. OT Progress Report, dated 10/11/21 (3 pages)

13. OT Progress Report, dated 3/27/22 (2 pages)

14. Teacher Report, dated 3/7/22 (7 pages)

15. SL Progress Report, dated 3/11/22 (4 pages)

16. IEP, dated 3/17/22 (30 pages)

17. PWN, dated 3/22/22 (4 pages)

18. IEP, dated 5/9/22 (33 pages)

19. PWN, dated 5/9/22 (4 pages)

IMPARTIAL HEARING OFFICER

I. Extension Orders, various dates (7 pages)