New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 593256 - NYC: 243641

FINDINGS OF FACT & DECISION

Case No. City/State: 243641/593256

Student’s Name: [REDACTED] (hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Request by: [REDACTED] (herein after referred to as “Parent”)

School: [REDACTED] (hereinafter referred to “Private School”)

Hearing Dates: 3/20/23; 4/20/23

Actual Record Close: May 14, 2023

Hearing Officer: David R. Gronbach Esq.

Date of Decision: May 27, 2023

NAMES AND TITLES OF PERSONS WHO APPEARED

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

[REDACTED], Academic Dean, Private School

[REDACTED], ED.D., Founder and Director, Tutoring Agency

For the Department of Education:

[REDACTED], ESQ., Attorney

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on or about December 13, 2022 regarding the 2020/21, 2021/22, and 2/22/23 school years school year (P-Ex. A) ^[1]. The DPC alleged that the District denied the Student a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by failing to recommend and implement an appropriate program. (P-Ex.A). The Parent has requested tuition reimbursement and direct funding for Parent’s unilateral placement of the Student at Private School for the 10-month 2022/23 school year; compensatory education for the 2020/21 and 2021/22 school years; and an order for Occupational Therapy IEE. (P-Ex. A; T.pg.30-32; 94). ^[2]

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed on January 24, 2023. A Pre-hearing Conference was held on February 15, 2023, at which time a Hearing was scheduled for March 20. 2023. (T.pg.12-13; 70-71). At the March 20th Hearing, the District presented exhibits that were entered into evidence and no witnesses. (T.pg.13-14). The Parent presented exhibits that were entered into evidence and the testimony of three witnesses.^[3] (T.pg.16-17). The District argued its motion to dismiss on statute of limitations grounds, which Parent opposed, and judgment was reserved. (T.pg.20-23). The Hearing was adjourned to April 20, 2023 due to witness availability. (T.pg.65).

At the April 20th Hearing, Parent witnesses testified. (T.pg.71).

Three joint/unopposed request to extend the compliance date were granted. The record closed on May 14, 2023.

FINDINGS OF FACT

Parent testified in 2020/21, Student was recommended in an IEP for Integrated Coteaching class. In the 2021/22 school year, Student had approximately 31 students in her ICT class and required a group paraprofessional to help her pay attention. Parent testified there were issues with District’s implementation of the recommended services in the 2020/21 and 2021/22 school years. In the 2021/22 school year, Student was recommended to receive SETSS in math and ELA, but did not receive any of the services and continued to fall further behind. (P-Ex.G; T.pg.57-58). Parent testified the SETSS provider told her Student’s needs were different from other students in the group and not appropriate. (T.pg.61).

Parent enrolled Student at Private School for the 2022/23 school year and informed the District by notice dated August 22, 2022. (P-Ex.A). Parent testified she could not afford the tuition based on their income. (P-Ex.G).

Parent testified she did not receive any procedural safeguards for the 2020/21 school year and she was not informed that she could challenge the 4/24/20 IEP. (T.pg.47-48).

Student’s August 2021 Neuropsychological Evaluation stated Student continues to exhibit attention problems across multiple settings. Results of academic testing indicated Student displayed vulnerabilities in her word decoding skills as well as concerning weaknesses in her written expression and spelling skills. Student’s math calculation and applied math problemsolving skills were areas of vulnerability, but her math fact fluency skills were impaired. Even though Student’s basic word reading skills were adequate, her teachers continue to report difficulty decoding multisyllable words despite receiving reading interventions at school and through private tutoring. Student also displays textbook signs of dyslexia and dysgraphia, including frequent whole-word errors, small word substitutions, difficulty sounding out multisyllable words while reading, fine-motor weaknesses, and trouble writing on the lines of the paper. Information documented in Student’s educational record indicates below grade level performance in reading, writing, and math occurring well before the pandemic began. Student continues to meet DSM-5 criteria for a diagnosis of a Specific Learning Disorder, With impairment in reading, written expression, and mathematics. (P-Ex.I-14-15).

The Neuropsychological Evaluation state Student appears to be internalizing her ongoing academic difficulties and she is at-risk for developing additional academic problems as expectations increase in middle school. Therefore, it is imperative that Student receive increased supports in the appropriate setting in order to allow her to make meaningful academic progress and to ensure that she is able to reach her potential. (P-Ex.I-15).

The Neuropsychological Evaluation set forth the following diagnoses: Attention-Deficit/Hyperactivity Disorder (ADHD) – Predominantly Combined Presentation (By History); Specific Learning Disorder, With impairment in reading (word reading accuracy (i.e., dyslexia)); Specific Learning Disorder, With impairment in written expression (spelling accuracy; clarity or organization of written expression); Specific Learning Disorder, With impairment in mathematics (accurate or fluent calculation; accurate math reasoning). (P-Ex.I-15)

The Neuropsychological Evaluation recommended SETSS in ELA and Math; 1:1 academic tutoring; occupational therapy; assistive technology; school counseling; and classroom accommodations. (P-Ex.I-16-17). While the Evaluation recommended increased individualized attention in an ICT class, it also stated:

[Student]’s specific learning disabilities within the context of intact intellectual abilities matches the profile of many students who attend private specialized schools. If her academic skills are no longer progressing in her current school setting with increased supports, [Student] requires a specialized non-public school or private school program for children with complex learning needs. (P-Ex.I-16).

An academic warning letter was issued February 2022 stating Student’s community school was concerned about Student’s academic progress in Math and Humanities. (P-Ex.K). Director of [REDACTED] (“Tutoring Agency”) testified it specializes in providing oneon-one tutoring to special education students using research-based, multi-sensory techniques. Each child is typically assessed with a battery of academic assessments, including the Wide Range Achievement Test for reading, spelling, and math computation skills; student completes a writing sample using the Test of Written Language; Qualitative Reading Inventory is used to assess the student’s reading comprehension skills. Tutoring Agency uses research-based and multi-sensory methodologies, including Orton Gillingham method. (P-Ex.F). Director testified she first evaluated Student’s math, writing, and reading skills on 8/9/21. Director testified Student tested at a low third grade level for decoding and spelling; a low fourth grade level for math, a low second grade level for writing, and a fourth grade level for reading comprehension. (P-Ex.F). (Student was entering 6th grade; P-Ex.G). Director re-assessed Student on 3/1/23 and Student tested at a mid-fourth grade level for spelling, and an upper fourth grade level for both decoding and mathematics. She also tested at a low fourth grade level for writing and a fifth grade level for reading comprehension, still below the expected levels for her grade. (P-Ex.F). Director testified Student requires 700 hours of one-on-one multi-sensory tutoring using the Orton Gillingham methodology to develop her decoding and spelling skills, as well as similar multi-sensory tools to build her reading comprehension, mathematics, and writing skills. (P-Ex.F; T.pg.83-85). Director testified Tutoring Agency’s rate for one-on-one tutoring is $150 per hour, which is at or below the typical market rate for these services in the NYC area. (P-Ex.F; T.pg.86-87). Private School Academic Dean testified Student has weaknesses in decoding and encoding , organization, academic and social problem solving, written expression, and attention. To make progress, Student requires the specialized supports and services afforded by the Private School program. In classes, Student has been easily distracted, but open to redirection. She struggles to sustain attention throughout the duration of a task and benefits from frequent one-to-one teacher check-ins in order to ensure she has read and understood directions and that she is remaining on task. She also benefits from editing checklists and work completion checklists, step-by-step directions, and targeted questions to build her comprehension. (P-Ex.H). Private School Academic Dean testified Student cannot decode or encode grade-level material. She requires daily instructional support to address her decoding and encoding deficits on an individual basis and in classes where teachers understand this deficit. She requires the attention and support provided in a smaller class due to her attentional and executive function difficulties. (P-Ex.H).

DISTRICT’S MOTION TO DISMISS BASED ON STATUTE OF LIMITATIONS

The IDEA provides an opportunity for any party to present a complaint related to the identification, evaluation, or educational placement of a child, or the provision of FAPE, that occurred not more than two years before the date the parent or public agency “knew or should have known about the alleged action that forms the basis of the complaint.” Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2nd Cir. 2008), quoting 20 U.S.C. §1415(b)(6)(B). New York State has affirmatively adopted the two-year period found in the IDEA and the State Review Office (SRO) applies the same standard. Educ. Law § 4404(1)(a); 8 NYCRR § 200.5(j)(1)(i); See Application of a Child with a Disability, Appeal No. 06-086. Each IDEA claim is a “factspecific inquiry” to determine when the parent knew or should have known about the claim (K.H. v. New York City Dept’s of Educ. 2014 WL 3866430 at *16 (EDNY Aug. 6, 2014). The limitations periods under the IDEA and New York Education Law do not apply where the parent was prevented from requesting the hearing because the district did not provide IDEA mandated information to the parent. See 20 U.S.C. § 1415(f)(3)(D); N.Y. Ed. Law § 4404(1)(a); 8 N.Y.C.R.R. § 200.5(j)(i). Specifically, the IDEA requires that notice of the procedural safeguards be provided to the parent at least once a year. 20 U.S.C. § 1415(d)(1)(A); see also 8 N.Y.C.R.R. § 200.5(f). Failure to properly provide procedural safeguards of a parent’s due process rights tolls the statute of limitations. See MD. v. Southington Board of Education, 334 F.3d 217, 223-24 (2d Cir. 2003).

The DOE bears the burden of proving that the parent’s claims are time barred by the applicable statute of limitations. See K.H. v. New York City Dep’t of Educ., 2014 WL 3866430, at 17-20 (E.D.N.Y. Aug. 6, 2014). Accordingly, the DOE—not the Parent—has the burden of proving that any of the claims brought here for any of the DOE’s violations are untimely. See, e.g., Y.D. v. N.Y.C. Dep’t of Educ., No. 14-CV-1137, 2016 WL 698139, at 7-8 (S.D.N.Y. Feb. 19, 2016) (holding that it is the DOE’s burden to prove that the claims are untimely when asserting the statute of limitations as an affirmative defense); M.G. v. N.Y.C Dep’t of Educ., 15 F. Supp. 3d 296, 306 (S.D.N.Y. 2014) (explaining that the statute of limitations is an affirmative defense and the burden of raising it falls on the City).

The Parties’ Claims

District filed a Motion to Dismiss seeking to dismiss Parent’s claims regarding the 2020/21 school as time barred by the 2 year statute of limitation. District asserted on April 24, 2020, an IEP review was held for the 2020-2021 school year (D-Ex.2) and on May 5, 2020 sent Parent a prior written notice detailing the student’s final IEP program recommendation and the parent’s right to due process. (D.Ex.3). District asserted the May 5, 2020 PWN was the “knew or should have known” date for SOL purposes and that, considering the 6 month COVID tolling provisions, the period expired on 11/5/2022. Since the DPC was filed on 12/13/22, District argued the claims regarding the 2020/21 school year are time barred. (District Motion; T.pg.20-21).

Parent filed the Due Process Complaint on December 13, 2022. The DPC asserts, among other claims, that the District denied FAPE in the 2020/21 school year because the District failed to implement or provide the services set forth in the 4/24/20 IEP. (P-Ex.A-2-3). At the very least, Parent’s DPC includes claims from December 13, 2020 forward. Parent would not have known of the denial of FAPE until the end of the 2021 school year, when the extent of District’s failure to provide services or the effect on Student was known. (P-Ex.G; T.pg.57-58).

District asserted the 5/5/2020 Prior Written Notice notified the Parent that a copy of the procedural safeguards notice can be downloaded on the DOE’s website or Parent could request the procedural safeguards notice from the DOE representative listed on the Prior Written Notice, which contained the DOE representative’s phone number. (District Motion; D-Ex.3). However, Parent testified she did not receive the Prior Written Notice, did not receive any procedural safeguards for the 2020/21 school year, and was not informed that she could challenge the 4/24/20 IEP. (T.pg.47-48).

Parent testified she did not receive the PWN and District failed to provide any evidence it was sent. Even if it was sent, as set forth in the June 29, 2019 letter from the United Stated Department of Education Office of Special Education and Rehabilitative Services to Judy Nathan, Executive Deputy Council for the DOE’s Office of Legal Services, “although IDEA permits an LEA to post a copy of the procedural safeguards notice on its web site, the public agency would not meet its obligation to provide a parent the notice of procedural safeguards by simply directing a parent to the web site. Rather, a public agency must still offer parents a printed copy of the procedural safeguards notice.” See January 29, 2019 OSEP Letter to Nathan at Page 3, available at https://sites.ed.gov/idea/idea-files/osep-letter-jan-29-2019-to-nathan/ (emphasis added).

To comply with the procedural safeguard notice requirement in 20 U.S.C. § 1415(f)(3)(D) — the DOE must give the parent actual notice, and directing Parent to the District’s website is not enough to meet this mandate.

As set forth in 20 U.S.C. § 1415(f)(3) and 34 C.F.R. § 300.511(f), the two-year statute of limitation does not apply to a parent if the District withheld information from that parent that it was required to provide (e.g., procedural safeguards). The District argues that Parent was given the requisite procedural safeguards in the 5/5/2020 Prior Written Notice. However, the Prior Written Notice does not contain the procedural safeguards required by the IDEA or CFR. See for example 34 C.F.R. 303.421, “Prior written notice and procedural safeguards notice”, (b) Content of notice. The notice must be in sufficient detail to inform parents about—

…(3) All procedural safeguards that are available under this subpart, including a description of mediation in §303.431, how to file a State complaint in §§303.432 through 303.434 and a due process complaint in the provisions adopted under §303.430(d), and any timelines under those procedures.

It is undisputed that the District’s Prior Written Notice to Parent did not satisfy the procedural safeguards notice. The District’s Notice set forth in D.Ex.3 states, “YOU HAVE

PROTECTIONS UNDER THE PROCEDURAL SAFEGUARDS OF THE REGULATIONS OF

THE COMMISSIONER OF EDUCATION.” The Notice states Parent can download a copy from the DOE’s website or request a copy. (D-Ex.3).

Failure to provide the required procedural notice is considered the withholding of information. See e.g. El Paso Indep. Sch. Dist. v. Richard R., 567 F.Supp.2d 918 (W.D. Tex.

2008) aff’d 591 F.3d 417 (5th Cir. 2009) (failure to provide parents with procedural safeguards and prior written notice resulted in school district withholding information from parents); D.G. v. Somerset Hills Sch. Dist., 559 F.Supp.2d 484 (D.N.J. 2008) (setting aside SOL for withholding procedural safeguards notice after parent’s repeated request for evaluation).

In light of Parent’s testimony that she did not receive the 5/5/20 PWN and in the absence of any evidence or testimony that it was sent by the DOE, District has not satisfied its burden to demonstrate that the date Parent knew or should have known of a denial of FAPE was triggered by the 5/5/20 PWN. Even if it was sent, Parent’s claims are not barred by the two-year statute of limitations because Parent’s claims span the 2020/21 school year, which ended in June 2021. Furthermore, the District’s reference to Parent to “download a copy of the Procedural Safeguards” in the 5/5/20 PWN withheld notice of procedural safeguards that the District was required to provide.

Therefore, Parent is not precluded from asserting claims based on the 2020/21 school year.

The District’s Motion to Dismiss Parent’s Claims arising from the 2020/21 school year, is DENIED.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is a comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998).

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

As set forth in 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 (1985) it is well established that a District may be required to reimburse parents for tuition payment to a private school if the services offered by the District were inadequate or inappropriate, the services selected by the parents were appropriate under the IDEA, and equitable considerations support the parent’s claim for reimbursement. Thus, consideration of such a claim has been expressed by a three prong test: (1) was student denied FAPE; (2) the appropriateness of the Parent’s unilateral placement; and (3) a balancing of the equities.

The burden of persuasion and proof is by the preponderance of the evidence standard, which requires a finding that the existence of a fact is more probable than not. When the evidence is evenly balanced, the party with the burden loses. The burden of production and persuasion is on the District for the first and third prongs. The Parent bears the burden of production and persuasion on the second prong.

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o 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, 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, “[t]he 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.” 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). A Student’s “IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” Endrew F. v. Douglas 580 U.S. ___ (2017). “It cannot be the case that the Act typically aims for grade-level advancement for children with disabilities who can be educated in the regular classroom, but is satisfied with barely more than de minimis progress for those who cannot.” Id.

DISTRICT’S BURDEN: DID THE DISTRICT PROVIDE FAPE

Here, the District did not present a case with witnesses or argument regarding the 2022/23 school year and request for tuition reimbursement and direct funding. District conceded Prong 1. (T.pg.26; 107). Parent’s claims regarding the denial of FAPE were undisputed. Therefore, the District did not meet its burden in demonstrating that the District provided the Student with FAPE during the 10-month 2022/23 school year. Based on all of the above, I find that the District did not provide the Student with FAPE for the 10-month 2022/23 school year.

Similarly, District did not provide any witnesses to demonstrate the District provided FAPE for the 2020/21 and 2021/22 school year. Parent’s allegations and testimony that Student was failing to make academic progress in the ICT program recommended by District, and that the District failed to provide the services recommended in District’s programs, was undisputed. Based on all of the above, I find that the District did not provide the Student with FAPE for the 2020/21 and 2021/22 school years.

PARENT’S BURDEN: APPROPRIATENESS OF UNILATERAL PLACEMENT

The Parent bears the burden of proof to prove by a preponderance of evidence that the placement provides educational instruction specifically designed to meet the unique needs of the student with services necessary to permit the child to benefit from instruction. C.B. v. Garden Grove Unified School Dist., 635 F.3d 1155, 1159 (9th Cir. 2011) quoting Frank G. v Bd. of Educ., 459 F.3d 356, 365 (2d Cir. 2006).

Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). When determining whether the parents' unilateral placement is appropriate, ultimately, the issue turns on whether that placement is “reasonably calculated to enable the child to receive educational benefits” (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is only appropriate if it provides education instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; 34 CFR 300.39[a][1]; Educ. Law § 4401[1]; 8 NYCRR 200.1[ww]; Rowley, 458 U.S. at 188-89.

A private school placement must be “proper under the Act” (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school must provide an educational program which meets the student's special education needs. See, Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (id. at 14). The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

“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.” (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

Parent presented the testimony of Private School Academic Dean, who testified Private School features small classes of a maximum of 12 students who are functionally grouped within a 2 year grade range. Factors considered in grouping students included their decoding and encoding skill level, their written expression, their reading comprehension, and their executive functioning. Private School’s program features a daily, individualized period that focuses exclusively on addressing the student’s areas of weakness as well as coordination among all staff who are working with the student to ensure reinforcement of skills being developed during that daily, individualized period. Private School’s program serves students with learning differences such as dyslexia, nonverbal learning disabilities, and executive functioning difficulties. (P-Ex.H; T.pg.37). Academic Dean testified Student has weaknesses in decoding and encoding , organization, academic and social problem solving, written expression, and attention. Student has been working with her instructor to address her academic and social problem solving; written expression and decoding and encoding weaknesses; developing strategies and plans to facilitate her completion of homework assignments; and recognizing distractions that interfere with her productivity in class. Private School’s Program addresses Student’s issues in written expression and reading. Academic Dean testified to Student’s improvements. (P-Ex.H). Academic Dean testified that Student benefits from frequent one-to-one teacher check-ins in order to ensure she has read and understood directions and that she is remaining on task; editing checklists and work completion checklists; step-by-step directions; and targeted questions to build her comprehension. (P-Ex.H).

Student is with the same group for her Literature and Writing, Science, and History classes. There are 7 students in these three classes who travel together. Her Literature and Writing class continues the work of teaching Student decoding and encoding skills. Student has access to a laptop with audiobooks and Google Read and Write, a text-to-speech and speech-to-text program. These tools allow Student to listen to texts to engage with higher level materials and build critical thinking skills, as well as improve her writing fluency by speaking her ideas aloud before proofreading. There are 11 students in Student’s Mathematics class. Math is grouped based on background knowledge and specific math skill level. (P-Ex.H; T.pg.38). Academic Dean testified Student benefits from the small class size because it enables the teachers to notice, address and support her struggles with attention and organization. She receives frequent one-to-one support and redirection in order to help her attend to her work and follow directions. The teachers also modify materials to support the development of Student’s language-based weaknesses while allowing her access to grade-level academics. (P-Ex.H; T.pg.42).

Parent testified to the progress Student made at Private School. (T.pg.61-63; see also P-Ex.E; G). With respect to the student’s progress at the Private School, a finding of progress is not required for a determination that a student's unilateral placement is adequate, but it is a relevant factor to be considered (Gagliardo, 489 F.3d at 115, citing Rafferty v. Cranston Pub. Sch. Comm., 315 F.3d 21, 26-27 [1st Cir. 2002]). Here the Student has made academic progress.

After reviewing the testimony and evidence provided, I find that Parent has met their burden. I find that Private School was an appropriate placement for the 2022/23 school year.

EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). The balancing of the equities examines the actions of the parents and District including:

1. Whether the Parents provided timely notice of the unilateral placement, either at the last IEP meeting or at least 10 business days prior to the removal of the student from the public school. Parent provided Notice to the DOE on August 22, 2022. (P-Ex.B). Student became enrolled at Private School on September 7, 2022 (P-Ex.E). Thus, Parent’s notice was timely.

2. The Parent’s actions were reasonable. Parent participated in the IEP meetings and shared the results of the neuropsychological evaluation with the District. The District failed to establish Parent prejudiced the District.

In balancing the equities, I find in favor of the Parent.

DECISION

Based on a review of the record and the facts mentioned above, I find that the District failed to provide the Student FAPE during the 2020/21, 2021/22, and 2022/23 school years. I further find that the Parent’s unilateral placement at Private School was appropriate. Parent was unable to afford the 2022/23 tuition and is entitled to tuition reimbursement and direct funding for the 10-month 2022/23 school year.

Parent has requested an award of compensatory education for the deprivation of FAPE for the 2020/21 and 2021/22 school years. Under IDEA, an award of compensatory education “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” and be “appropriate in light of the purposes of the Act.” Doe v. E. Lyme Bd. of Educ., 790 F.3d at 454, 457 (internal citations omitted) (emphasis added).

The record reflects that compensatory services in the form of tutoring hours is necessary for Student to catch up to the levels she may have otherwise attained. Director testified Student tested at a low third grade level for decoding and spelling; a low fourth grade level for math, a low second grade level for writing, and a fourth grade level for reading comprehension. (P-Ex.F). (Student was entering 6th grade; P-Ex.G). Director re-assessed Student on 3/1/23 and Student tested at a mid-fourth grade level for spelling, and an upper fourth grade level for both decoding and mathematics. She also tested at a low fourth grade level for writing and a fifth grade level for reading comprehension, still below the expected levels for her grade. (P-Ex.F).

Director testified Student requires 700 hours of one-on-one multi-sensory tutoring using the Orton Gillingham methodology to develop her decoding and spelling skills, as well as similar multi-sensory tools to build her reading comprehension, mathematics, and writing skills. (P-Ex.F; T.pg.83-85). The District failed to offer any evidence in opposition to the recommendation.

Based on the District’s failure to provide Student FAPE for the 2020/21 and 2021/22 school years, the Student is entitled to the compensatory education set forth in my Order.

Given parent’s prior requests for an occupational therapy evaluation and District’s recommendation of services without an evaluation, Student is entitled to an independent

Occupational Therapy evaluation as set forth in my Order.

Parent’s remaining claims are rejected for lack evidence in the record.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

1. ORDER THAT, the District shall reimburse Parent and directly fund Private School for all tuition and fees for the Student’s unilateral placement at Private School for the 10-month 2022/23 school year;

2. ORDER THAT, District shall fund compensatory education for the 2020/21 and 2021/22 school years, in the form of a bank of 700 hours of 1:1 multisensory academic tutoring, which shall not expire, to be provided by a certified provider of Parent’s choosing, at a rate not to exceed $150/hour;

3. ORDER THAT, The District shall fund an independent Occupational Therapy evaluation for the Student, to be conducted by a New York state licensed Occupational therapist of the Parent’s choosing, at market rate.

SO ORDERED

DATED: May 27, 2023

David R. Gronbach

David R. Gronbach, 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. Exhibit DATE NAME PAGES Due Process Complaint 12/12/2022 8 pages DOE

2. Individualized Education Program 4/24/2020 17 pages DOE

3. Prior Written Notice 5/5/2020 4 pages DOE

4. Individualized Education Program 4/19/2021 21 pages DOE

5. Prior Written Notice 5/22/2021 9 pages DOE

6. Individualized Education Program 11/15/2021 21 pages DOE

7. Prior Written Notice 11/22/2021 9 pages DOE

8. Individualized Education Program 2/17/2022 20 pages DOE

9. Prior Written Notice 4/26/2022 9 pages DOE

PARENT EVIDENCE

A. Impartial Hearing Request December 18, 2022 7 pages

B. 10-Day Letter August 22, 2022 1 page

C. School Contract July 1, 2022 7 pages

D. Payment Affidavit and Proof of Payment March 2, 2023 9 pages

E. Winter Progress Report Winter 2023 9 pages

F. Affidavit of Tutoring Agency Director March 2, 2023 3 pages

G. Affidavit of Parent March 12, 2023 3 pages

H. Affidavit of Private School March 13, 2023 5 pages

I. Neuropsychological Evaluation November 5, 2021 25 pages

J. May 9, June 11, and Clinical Research Feedback Report July 12, 2019 42 pages

K. Academic Warning Letter February 2022 1 page

Footnotes

[1] Exhibits shall be referred to as follows: “P” for Parent Exhibit; “D” for the District’s or Department’s Exhibits; and “IHO” for the Impartial Hearing Officer’s exhibits.

[2] Reference to the Transcript shall be referred to as “T”.

[3] A more detailed list of exhibits is attached.