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CASE NUMBER: 593569 NYC: 243883
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed.,
Impartial Hearing Officer: Roberta Wolf
Date of Filing: 12/15/2022
Hearing Requested by: Parent
Date of Hearing: 04/04/2023
Record Close Date: 04/12/2023
Date of Decision: 04/12/2023
NAMES AND TITLES OF PERSONS WHO APPEARED
April 4, 2023:
For the Department of Education:
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Parent Student
BACKGROUND
On December 15, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 243883, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law). [1]
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2020-2021, 2021-2022, and 2022-2023 school years when its Committee on Special Education (CSE) failed to provide the Student with sufficient services and supports in her Individualized Education Plans (IEPs), notwithstanding the Parent’s repeated requests for supplementary assistance and the Student’s consistent and documented lack of progress with the services that DOE provided.[2] The Parent thereafter unilaterally placed the Student in the Private School and now seeks tuition funding and transportation for the 10-month, 2022-2023 school year, and compensatory education for the prior school years. [3]
I was appointed impartial hearing officer on January 31, 2023; held prehearing conferences on February 16, 2023, and March 15, 2023; and adjudicated a due process hearing on April 4, 2023. DOE did not hold a resolution meeting or file a due process response. At the hearing, DOE did not present a case and did not object to the Parent’s request for relief. The Parent provided documentary and testimonial evidence, a list of which is appended to this Order.
FINDINGS OF FACT
The Student is now [REDACTED] years old and her eligibility for special education supports and services is not in dispute. Her disability classification by DOE is “Other Health Impairment”[4] and she has been diagnosed with Attention Deficit Hyperactivity Disorder and Specific Learning Disorders with Impairments in Reading and Written Expression.[5] DOE first evaluated the Student for services in February of 2019 (when she was repeating the first grade 6) and placed her in an Integrated Co-Teaching (ICT) classroom.[7] DOE subsequently arranged for a neuropsychological evaluation in July of 2019, wherein the Student scored in the ninth percentile or less for reading, spelling, and pseudoword decoding.[8] The neuropsychologist recommended that the Student attend “a structured, multi-sensory special education program with a limited student-to-teacher ratio with expertise in the remediation of severe reading and writing deficits to assist students with a history of inattention, neurocognitive deficiencies, adaptive functioning, and associated learning difficulties.”[9] The neuropsychologist also recommended that the Student receive services from “a specialist experienced in substantial reading deficits (Dyslexia).”[10] Nevertheless, the CSE continued to mandate the same ICT classroom with two teachers and 32 students.[11] During the Student’s annual review meeting in December of 2019, the Parent cited to the neuropsychological evaluation and requested a smaller classroom and a reading specialist, but the CSE denied those requests. [12]
6 Ex. A1, C1.
On December 16, 2020, the CSE again convened, and the Student’s teacher reported that the Student did not reach any of her IEP goals.[13] The Parent expressed concern that the Student was not progressing and that the current program was insufficient;[14] however, the CSE maintained its mandate of an ICT classroom, plus two, 30-minute weekly sessions of speech-language therapy (SLT) for the 2020-2021 school year. [15]
In May of 2021, the CSE again convened after evaluating the Student for occupational therapy (OT).[16] At that time, the Student was reading at a first-grade level.[17] The Parent again requested a smaller classroom and reading support, which the CSE again denied, although it added OT to the Student’s IEP.[18] DOE promoted the Student to the fourth grade. [19]
That fall, the Parent enrolled the Student in an after-school tutoring program and arranged for a neuropsychological evaluation.[20] The tutoring service assessed the Student’s reading ability at a sub-first-grade level.[21] The neuropsychologist concluded that the Student continued to meet the criteria for previous diagnoses, but now also exhibited disorders related to math and anxiety.[22] The neuropsychologist recommended “a small, specialized school setting and in a small classroom setting with teachers who are trained to teach children with learning disorders and attention and executive functioning deficits.”[23] At the annual review meeting on May 27, 2022, the Parent again renewed her request for a smaller classroom and additional services, but the CSE again maintained the same ICT recommendation.[24] The May 2022 IEP documented the Student’s instructional and functional levels for reading and math at the first-grade level.[25] At the end of the 2021-2022 school year, the Student’s report card reflected a final grade of “2” (below standards) for reading, writing, and math,[26] but DOE again promoted the Student to the fifth grade. [27]
On August 23, 2022, the Parent notified DOE that because the Student had not made academic progress for years in an ICT classroom, she intended to unilaterally place the Student in the Private School and seek public funding and special transportation.[28] DOE did not substantively respond to the Parent’s notice. [29]
The Private School is a full-time special education program for students with dyslexia, other language-based learning disorders, attention deficits, and processing delays, and it provides small classes and a multi-sensory approach to instruction.[30] The Private School also administers OT and SLT.[31] To create and implement an individualized education program for the Student, the admissions team reviewed the Student’s IEP and prior evaluations, and assessed her academic performance, abilities, and behavioral needs.[32] The Student was placed in an 8:1 classroom with students of similar age and who exhibited similar learning impairments and behavioral needs.[33] The Student also receives small-group instruction in a four-to-one setting; individual reading remediation; and SLT, OT, and counseling.[34] All instructors hold, or are in the process of obtaining, Master’s Degrees.[35] The Student’s reading instructor is State-certified and holds Master’s Degrees in Elementary Childhood Education and Special Education/Learning Disabilities.[36] She is also a dyslexia practitioner and trained in OrtonGillingham instruction.[37] The Student has progressed academically (notably, to a fourth-grade level in math), socially, and behaviorally;[38] although her reading deficits continue to require significant remedial attention. [39]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[40] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) DOE complies with the procedural requirements set forth in the IDEA.[41] For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE, (b) significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits.[42] In general, an IHO’s decision must be made on substantive grounds as to whether the student received a FAPE.[43] DOE may be required to pay for educational services obtained for a student by her parent if a preponderance of the evidence shows: (a) the services offered by DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parent were appropriate; and (c) equitable considerations support the parent’s claim. [44]
Prong 1 – FAPE Denied to the Student
A school district offers a student a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” [45] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from her disability and that enable her to make progress in the general education curriculum; and provide appropriate special education and services.[46] “A reviewing court may fairly expect [DOE] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of [her] circumstances.” [47]
Here, DOE did not defend at the hearing that the IEPs for any of the subject school years offered the Student a FAPE. Moreover, the weight of the Parent’s evidence supports my conclusion that DOE failed to offer the Student an educational program reasonably calculated to provide a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.
Prong 2 – Appropriateness of Unilateral Placement Established
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent seeking tuition reimbursement for a unilateral placement in a private school setting has the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’” [48]
The Parent notified DOE on August 23, 2022, that without a more supportive program, she would unilaterally place the Student at the Private School for the 2022-2023 school year. The Parent provided the Student’s class schedule and report cards; a program description and the Parent’s signed enrollment contract; and the testimony of the Assistant Principal of the Private School. The Private School provides full-time special education specifically for children like the Student with language-based learning disorders, taught in small class settings by highly qualified instructors. The Student exhibited progress academically, socially, and behaviorally as shown by her progress reports and the affidavits of the Parent and the Assistant Principal of the Private School. I find the Parent’s evidence to be comprehensive, consistent, and credible. I further find that the Parent established that the placement of the Student in the Private School provides educational instruction specially designed to meet her unique needs, supported by such services as are necessary to permit her to benefit from that instruction.
Prong 3 – Equitable Considerations Favor the Parent
Although the hearing officer may deny the Parent’s tuition funding claim for: (a) unreasonably rejecting DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (b) failing to make the Student available for an evaluation; or (c) failing to timely notify DOE of her intent to reject the proposed IEP and enroll the Student in a private school at public expense,[49] no facts support those findings in this case. DOE made no claim that the Parent behaved unreasonably or failed to make the Student available for an evaluation, nor did it object to her proffer of a “Ten Day Notice of Intent” to unilaterally place the Student in the Private School and seek tuition funding. In contrast, DOE failed to adhere to two procedural requirements necessary once a parent files a DPC: conducting a resolution meeting[50] and filing a due process response. [51]
The Parent’s enrollment contract shows that the Private School charged tuition of $75,000.00 for the 10-month, 2022-2023 school year, with the full amount due and owing.[52] I find that the equities favor the Parent and warrant funding forthwith.
Compensatory Relief Granted
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[53] An award must be designed to “make up” for past denials of FAPE and place the student in the position she would have been in, had the district complied with its obligations under the IDEA.[54] “[T]he inquiry must be fact-specific, and [in order] 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.”[55] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[56] It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation). Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thu]s more likely to address [the student’s] educational problems successfully.” [57]
In New York, when there is a lack of FAPE and the parent seeks a compensation award, the burden lies with DOE to “describ[e] 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 [they] would have been but for the denial of FAPE.”[58] However even where DOE fails to offer its “position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome [including] where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[59] The specific award sought, therefore, must be evaluated, because (a) “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[;]”[60] and (b) “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.” [61]
Here, the Parent asks for 400 hours of one-to-one tutoring in the areas of reading, writing, and math to offset the lack of FAPE during the 2020-2021 and 2021-2022 school years, and to accelerate the Student’s progress at the Private School.[62] The Parent’s request equates to four hours per week, administered over a 50-week period for two school years, plus transportation (i.e., metro cards).[63] As noted above, DOE did not challenge the Parent’s request.
I find that compensatory services are warranted to address the Student’s needs and deficits that resulted from the FAPE deprivation. I further find that 400 hours of compensatory services, administered over a two-year period, is reasonable in quantity and will help to place the Student in the position that she would have been in but for the denial of FAPE. I grant the Parent’s request in full.
ORDER
Based upon the above Findings of Fact, it is hereby:
1. ORDERED that, DOE shall fund the Student’s placement at the Private School for the 10-month, 2022-2023 school year in a sum not to exceed $75,000.00 (SeventyFive Thousand Dollars).
2. FURTHER ORDERED that, DOE shall continue to provide the Student with transportation, from the closest safe curb and with limited travel time, between her home and the Private School for the 10-month 2022-2023 school year.
3. FURTHER ORDERED that, the Student is entitled to receive 400 hours of one-to-one tutoring at a rate not to exceed $150 per hour.
4. FURTHER ORDERED that, DOE shall fund the services identified in Section 3 and issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice.
5. FURTHER ORDERED that, the Student’s bank of compensatory services set forth in Section 3 shall not expire for two years from the date of this Order.
6. FURTHER ORDERED that, DOE shall provide metro cards or their equivalent to allow the Student to travel to and from the services identified in Section 3 at no cost to the Parent.
SO ORDERED.
DATED: April 12, 2023
/s/ Roberta Wolf, Esq.
Impartial Hearing Officer
Roberta Wolf
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
PARENT EVIDENCE
A. 10-day Unilateral Placement Notice 8/23/2022 3 pages
B. Due Process Complaint 12/15/2022 9 pages
C. Neuropsychological Evaluation 9/6/2019 18 pages
D. Email btw Parent and [REDACTED] re student’s performance 11/12/2020 2 pages
E. IEP Meeting Notice 12/10/2020 3 pages
F. IEP 12/16/2020 15 pages
G. Email btw Parent and [REDACTED] re request for blended learning 12/18/2020 4 pages
H. Email btw Parent and [REDACTED] re request for in person instruction 3/24/2021 2 pages
I. Parent’s request for OT testing 3/24/2021 2 pages
J. Occupational Therapy Evaluation 5/21/2021 8 pages
K. IEP 5/27/2021 20 pages
L. Email btw Parent and School re bullying Oct' 2022 2 pages
M. Email btw Parent and School re bullying Nov' 2022 6 pages
N. Neuropsychological Evaluation Jan/Feb' 2022 40 pages
O. Email btw Parent and [REDACTED] re math support 2/9/2022 1 page
P. Email btw Parent and [REDACTED] re drop off 2/7/2022 3 pages
Q. Email btw Parent and [REDACTED] re return to 1/31/22 school/recess 3/1/22 4 pages
R. Emails btw Parent and [REDACTED] re request to consider eval 5/26/2022 3 pages
S. IEP 5/27/2022 22 pages
T. Student's Final Report Card-Attendance 21-22 SY 3 pages
U. [REDACTED] Program Description 22-23 SY 1 page
V. [REDACTED] Enrollment Contract 22-23 SY 2 pages
W. Student’s Schedule 22-23 SY 1 page
X. Student Report Card - November 22-23 SY 10 pages
Y. Student Report Card - March 22-23 SY 10 pages
Z. Affidavit of [REDACTED] (Parent) 3/28/2023 7 pages
AA. Affidavit of [REDACTED] ([REDACTED]) 3/28/2023 11 pages
Footnotes
[1] Ex. B. The Parent withdrew a claim pursuant to Section 504 of the Rehabilitation Act. Tr. p. 28 lines 18-20.
[2] Id.
[3] Id.
[4] Ex. F1.
[5] Ex. C15.
[7] Ex. B2.
[8] Ex. C12.
[9] Ex. C16.
[10] Id.
[11] Ex. Z2.
[12] Ex. Z3.
[13] Ex. Z3.
[14] Ex. F2.
[15] Ex. F8.
[16] Ex. Z4.
[17] Id.
[18] Ex. K, Z4.
[19] Ex. Z4.
[20] Id.
[21] Id.
[22] Ex. N23, Z4.
[23] Ex. N24, Z5.
[24] Ex. Z5.
[25] Ex. S20.
[26] Ex. T1.
[27] Ex. Z6.
[28] Ex. A, Z6.
[29] Ex. A.
[30] Ex. U.
[31] Id.
[32] Ex. U, AA.
[33] Ex. AA4.
[34] Id.
[35] Ex. AA3.
[36] Ex. AA4.
[37] Id.
[38] Ex. AA5, Z7.
[39] Ex. AA5.
[40] 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[41] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[42] 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[43] 20 U.S.C. § 1415(f)(3)(E)(i).
[44] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[45] Rowley, 458 U.S. at 203.
[46] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[47] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[48] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[49] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[50] 34 CFR § 300.510(a).
[51] 34 CFR § 300.508(e)(f), 8 NYCRR §§ 200.5(j)(2), (i)(4). Although DOE filed prior written notice of its recommendations on June 6, 2022, a due process response must address the subject matter contained in the DPC.
[52] Ex. V.
[53] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[54] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[55] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).
[56] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[57] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[58] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[59] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[60] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[61] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[62] Ex. B; Tr. p. 27 lines 5-10; p. 8 lines 5-8.
[63] Id.