New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 245541

Student’s Name: AZAM, RAYAN

School District: N.Y.C. Dept. of Ed., District # [REDACTED]

Impartial Hearing Officer: Lorianne Wolseley

Date of Filing: 2/1/2023

Hearing Requested by: AZAM, MOHAMMED

Date of Hearing: 8/2/2023

Record Close Date: 9/14/2023

Date of Decision: 9/14/2023

Time Sensitive: NO

PROCEDURAL HISTORY

Parent in this matter, through their counsel, filed a due process complaint (“DPC”) on February 1, 2023, against the New York City Department of Education (“DOE”). I was appointed to hear this case as an Impartial Hearing Officer (“IHO”), pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400, and Article 89 of New York State Education Law on February 9, 2023. In the DPC, the Parent alleged, inter alia, that the DOE denied Student a Free and Appropriate Public Education (“FAPE”) for the 2018-19, 2019-20, 2020-21, 2021-22, and 2022-23 school years (“SY”). [IHO Ex. I 1]. A pre-hearing conference was held on March 8, 2023, and the matter was scheduled for a hearing.

On April 5, 2023, during his opening statement, DOE’s representative, argued that Parent’s 2018-2019 and 2019-2020 SY claims should be dismissed with prejudice because the requested relief is time barred by the applicable two-year statute of limitations (“SOL”) under the IDEA. Parent’s Attorney argued that an exception to the SOL timeline applied, Parent’s attorney stated that the DOE withheld information from Parent, and therefore Parent’s claim for the 2018-19 and 2019-20 SY should not be dismissed.

A limited hearing on DOE’s motion to dismiss Parent’s 2018-19 and 2019-20 SY claims was held on May 4 and May 25, 2023.

In an order dated June 7, 2023, the DOE’s Motion to Dismiss was denied. [See IHO Ex. VII]. However, parties were informed that if the DOE presented credible evidence establishing that Parent did in fact receive the Parent Notification of Participation in the New York State Alternate Assessment Letter, Parent’s 2018-2019 and 2019-2020 school years would be dismissed. 2 A hearing on the merits was held on June 27, 2023 and July 11, 2023. Parent submitted exhibits A – GG and presented three witnesses, Parent, Director of Private Tutoring, and Program Director at Private School. The DOE did not submit any documents at the hearing and did not present any witnesses. Parties were required to submit closing briefs by 5 PM on July 26, 2023. In an email dated July 28, 2023, the DOE representative stated that he would like to “defer to the record and testimony” and did not submit a closing brief. [IHO Ex. VIII]. Parent’s attorney submitted a closing brief. 3 There are nine IHO exhibits which include the DPC and Parent’s Closing Brief.

BACKGROUND

The CSE meet to develop an IEP for Student on the following dates:

1 The Hearing Officer Exhibits will be cited to as “IHO Ex. - followed by a roman numeral”; Parent’s Exhibits will be cited to as “P - followed by a letter”; and DOE Exhibits will be cited to as “D - followed by a number.” 2 June 8, 2023, Hearing Trans., p.6; Parent would then have the burden of establishing her claim under Section 504. 3 Parent’s attorney submitted a closing brief that was a restatement of the DPC and Parent’s Affidavit. The information and analysis of facts contained in Parent’s attorney’s brief was duplicative and not helpful in aiding the undersigned in understanding Parent’s counsel’s position and rendering a decision. November 16, 2016, May 8, 2018, May 17, 2019, May 14, 2020, and April 22, 2021. [P- G, J, K, M, R].^[4]

On April 11, 2022, the Committee on Special Education (“CSE”) convened to develop an IEP for the Student for the 2022-2023 school year. [P – U]. The April 11, 2022 IEP classified the Student as a student with Autism and recommended a special education program consisting of an 8:1+1 Special Class for ELA, Math, Social Studies, and Sciences with related services in Counseling once a week for 30 minutes individually and once a week for 30 minutes in a group of 3 and Speech and Language Therapy (“SLT”) in a group of 3 two times per week for 30 minutes each session. Id. Student’s classification and entitlement to special education programming and services is not in dispute. Parent unilaterally placed Student at Private School in September 2022. Student continues to attend the school through the present time.

Parent alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (“FAPE”) for the 2018-2019, 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years. [IHO Ex. I]. Parent now seeks an order, inter alia:

a. The DOE to fund Student’s placement at Private School for all tuition and related expenses for the 2022-2023 school year, as the school provides individually tailored services for Student’s unique needs and he has made progress;

b. The DOE to fund independent evaluations for Student including:

1) a neuropsychological evaluation;

2) an Occupational Therapy (“OT") evaluation; and

3) a Speech and Language (“SL”) evaluation;

c. The DOE to provide at least 1600 hours of compensatory tutoring at an enhanced rate;

d. The DOE to provide at least 40 hours each of compensatory OT, SLT, and Counseling at an enhanced rate;

e. An award of all attorneys’ fees incurred by the Parents in their case.

f. Any other relief that the Impartial Hearing Officer deems appropriate. [IHO Ex.

I, 13-14, IHO Ex. IX, 30].

JURISDICTION

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

LEGAL FRAMEWORK

The IDEA directs that, in general, an IHO’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C. § 1415(f)(3)(E)(i). Under the IDEA and New York law, where there is a procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE. See 20 U.S.C. § 1415 (f)(3)(E)(ii); 8 NYCRR § 200.5(j)(4)(ii).

The 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 FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”). 34 C.F.R. § 300.13. A FAPE is further defined as “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 Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). Two purposes of the IDEA 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).

A board of education may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. 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). These three conditions constitute the Burlington/Carter test in a tuition reimbursement case.

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 or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NYS Educ. Law § 4404(1)(c). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

FINDINGS OF FACT

FAPE

In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013). When asked whether the DOE provided Student with a FAPE for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022, 2022-2023 school years, the DOE representative stated, “District would rely on the evidence and testimony and admissions of the claimant in defense of its position that it offered a free and appropriate public education to student at issue in this case.” [June 27, 2023 Hearing Trans., p. 30-32]. The DOE representative added that “the district rest and they reserve the right to call rebuttal witnesses.” [Id. 43-44]. The DOE representative did not present a case or present any witness testimony at the hearing. The DOE representative offered no explanation as to how the CSE made its recommendation, how the IEP appropriately describes Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002.

Additionally, the DOE representative did not object to or contest the evidentiary material submitted by the Parent in support of their claims, and it offered no rebuttal to the testimony provided by the Parent’s witnesses. Consequently, the Parent is entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony to the extent those facts are credible and are not contradicted by the hearing record. Based on that presumption and the DOE’s failure to sustain its burden under the Education Law, the record establishes that the DOE failed to provide the Student with a FAPE for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years. ^[5]

Appropriateness of Student’s Placement at Private School

When parents unilaterally place their child in a private program and seek funding and/or reimbursement for that program, they must demonstrate the program they have selected is appropriate to meet their child’s needs. A.D. ex rel. E.D. v. Bd. of Educ. of City Sch. Dist. of New York, 690 F. Supp. 2d 193, 206 (S.D.N.Y. 2010) (citing Frank G., 459 F.3d 356 at 364). Parents are not barred from an award of tuition reimbursement or funding even if the private program does not meet the IDEA definition of a FAPE; the selected program need not employ certified special education teachers or develop its own IEP for the student, and parents’ selection of a program that has not been approved by the state does not bar reimbursement. Frank G., 459 F.3d 356 at 364 (citing Carter, 510 U.S. 7 at 14). Parents need not show that a private placement provides every special service necessary to maximize their child’s potential, but only that it is likely to produce progress and not regression and provides “educational instruction specially designed to meet the unique needs of the . . . child, supported by such services as are necessary to permit the child to benefit from instruction.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d Cir. 2007].

The documentary evidence and uncontroverted testimony of Parent and Program Director at Private School coupled with the uncontested documentary evidence support a finding that Private School is an appropriate placement for Student. The hearing record establishes that Private School appropriately addressed Student’s needs for the 2022-2023 school year. Student Needs

According to his teacher and Student Annual Needs Determination Inventory (“SANDI”) results, Student can solve word problems using one-dollar bills, quarters, dimes, nickels, and pennies. He can solve addition and subtraction problems with 2-digit numbers, illustrations, and sums and differences up to 100. He also tells correct time to the hour & half hour on an analog clock. Student has trouble asking questions when he does not know something. He will not ask for help but is very receptive when offered help by staff or teacher. Student does not initiate conversations with his peers. [P- U, 2].

According to SANDI, Student is at a fifth-grade reading level. Student reads and decodes 10 words at a fifth-grade level. He reads a 100-word informational text at a fifth-grade level with fluency. Student has difficulty when he listens to a sixth-grade social-studies story and answers 5 questions about the theme.

In Math, Student is functioning at fourth-grade level. He can solve 5 addition and 5 subtraction problems with multi-digit whole numbers with a calculator. He can also identify positions of 5 sets of lines in figures: 3 sets of parallel lines and 2 sets of perpendicular lines. Student has difficulty when asked to multiply multi-digit whole numbers up to 999 using a calculator to find answers for all of the missing steps. [Id.].

Based on informal assessment, teacher interviews and the Citywide Speech Services (“CSS”) Communication Profile, Student learns best using a combination of auditory, tactile, and visual stimuli. Student greets his peers and answers one-two questions from his peers independently however, asking for help in class is difficult for Student. Student is able to answer who, what, when, and where questions from an informational text using details from the reading. [Id.].

In the Interdisciplinary Report of Progress Update, Student presents as a sensory seeking student and his trained classroom staff engage him in a sensory diet, created by his occupational therapist, and other movement opportunities to support Student in his regulation and shared attention. Student may become dysregulated if the classroom becomes too loud or unpredictable, or if he does not receive enough sensory input to sustain shared attention and engagement. When Student is dysregulated, he will often make vocalizations, increase the speed of his movements, and have a more difficult time processing verbal language. When dysregulated, Student may appear calm; however, he is not available for engagement or interaction. In these moments, classroom staff support Student with calm affect, a break in a quiet space and other co-regulatory strategies. In groups, Student may suddenly disengage in moments of dysregulation.

[P- GG, 1]

According to Student’s April 2022 IEP, Student requires a small, highly structured learning environment with repetition, visuals, auditory cues, manipulatives, and related services to meet his academic, language, and emotional needs. Student’s classroom ratio recommendation was 8:1+1 and Student should receive Counseling and Speech and Language Therapy several times per week. Additionally, Student requires a daily classroom schedule, redirection, repetition, graphic organizers, verbal and gestural prompting, visual cues, breaks, and a distraction-free environment. [P – R, 5].

Private School Private School’s mission is to provide a model educational program for children from 3-to-21 years old with neurodevelopmental delays in relating and communicating including students with autism spectrum disorder (“ASD”). Private School is committed to meet each child’s unique needs, celebrate their strengths, and support their limitations. [P- BB, 1].

Private School is a small school with 153 students and 18 classrooms. Typically, each classroom has 8 students, 1 head teacher, and 3 assistant teachers. About 85 percent of the students enrolled have been diagnosed with Autism and the remaining 15 percent of students have difficulties with relating and communicating, sensory processing, and fine and gross motor skills. Private School offers OT, SLT, Physical Therapy (“PT”), and Counseling by either a psychologist, social worker, or music therapist. Private School follows the Common Core standards. They also use standard curriculum that they adapt. For literacy, they use Lindamood-Bell, Talkies, Seeing Stars, Visualizing and Verbalizing, Reading from A to Z, Reading Mastery, Balanced Literacy, and Readers Theater. When students enroll at Private School, Private School assesses them over the first two weeks. The related service specialists, the speech and language pathologists, physical therapists, occupational therapists, and social worker assigned to that classroom observes the student individually and in a group. They are observing the child's strengths and where they need more support. Then they create individual related service mandates based on their observations and assessments. [P- FF, 1-4]

Program Director at Private School Program Director at Private School testified that Student's individualized weekly program consisted of DIR Floor-time sessions, morning meeting, reading, math, social studies, science, health, and sensory activities. Student receives SLT, Counseling, and OT. Student also receives group music facilitated by a music therapist, art group, and adaptive physical education. Student’s reading program takes on a multi-sensory, movement-based and thinking-based approach to exploring text. Student's individualized reading program focused on comprehension and reading fluency. With moderate adult support, Student made progress in answering more abstract “wh” questions. In math, Student worked on math tools, whole and part and composing and decomposing quantities up to 20. Student has made progress in decomposing quantities.

At Private School, related service providers assessed Student’s progress several times throughout the 2022-2023 school year. They often wrote session notes after each session. The head teacher or a teacher assistant also wrote classroom observations once a week related to the student's individual goals. The teachers and related service providers also create progress reports in December and June for each student. Program Director reviewed Student's mid-year progress report and spoke to Student’s teachers and providers about Student’s progress. I find the testimony provided by Program Director to be credible. Her testimony was straight forward, and consistent with other credible evidence in the hearing record.

Parent

Parent testified, in relevant part, that on August 22, 2022, he notified the DOE that the program and placement offered to Student for the 2022-2023 school year was inappropriate and he enrolled Student in Private School. Parent noted that Student began attending Private School on September 12, 2022. According to the Parent, Student made meaningful progress at Private School based on the uniquely tailored specialized instruction he received. I find the testimony provided by the Parent to be credible. I do note that Parent’s affidavit appears to be a restatement of the DPC, which was clearly created by the Parent’s attorney. For instance, Parent’s Exhibit DD-1, paragraph 3 is identical to the words used in IHO’s Exhibit I, 1-2.

The weight of the evidence and the credible testimony of Parent, and Program Director at Private School clearly demonstrate that Student has made educational progress from the individualized instruction and supports Student received at Private School during the 2022-2023 school year. Private School provided Student with the individualized differentiated instruction and intensive 1:1 support within a small class setting among similarly functioning peers.

Based on the foregoing, I find Private School an appropriate placement for Student for the 2022-2023 school year, and Parent has met the second prong of the Burlington/Carter test for tuition funding and/or reimbursement.

Equitable Considerations

Under the third and final prong of the Burlington/Carter test, courts consider “equitable factors” relevant to an order of tuition. Gagliardo, 489 F.3d at 112. “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [Department] throughout the process to ensure their child receive[s] a FAPE.” Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. See D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

Direct tuition funding is allowed under the IHO’s equitable authority. See Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so.”). See Ferreira v. New York City Dep’t of Educ., 2023 WL 2499261 (S.D.N.Y. March 14, 2023) (noting that the court found no caselaw holding that “proof of inability to pay is required to establish the propriety of direct retrospective payment,” and that “where it is undisputed that the DOE is responsible for payment, and the DOE does not contest the reasonableness of the cost of tuition, it would be nonsensical to draw a distinction on equitable grounds between requiring the DOE to pay the school directly and forcing the parents to make an initial payment in the same amount that the DOE is then required to reimburse”). “Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable.” Carter, 510 U.S. 7, 16, 114 S. Ct. 361 (1993); see also J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011) (“[T]his Court has broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. [P – W]. Therein, Parent detailed specific concerns. Parent, furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. Id. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

The hearing record establishes that Private School’s tuition rate was $130,000 for the 2022-2023 school year. Credible evidence was presented that Parent made a payment of $1,000 to Private School for Student’s tuition and the balance owed was $129,000. [P – AA, FF].

By way of relief, Parent seeks reimbursement and direct funding for Student’s private school tuition costs. Parent submitted documentation establishing that they paid a portion of Student’s tuition for the 2022-2023 school year. [P – AA]. I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. [See P- Z, AA, BB, DD, FF, & GG]. Student attended the Private School during the year at issue.

Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.

Request for Independent Educational Evaluations (IEE)

An Independent Educational Evaluation (IEE) is “an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.” See 8 NYCRR § 200.1(z).

The IDEA and State and Federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation. See 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted). In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).

If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE. See 8 NYCRR § 200.5(g)(1)(i). A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE. See 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989). For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE, Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011), nor can it deny an IEE at public expense based solely on financial cost. Letter of OSERS, 2002.

A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need. D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020). In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.” Id. The U.S. Department of Education's Office of Special Education Programs (“OSEP”) has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.” Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).

An IEE may also be requested by an impartial hearing officer “as part of a hearing on a due process complaint.” 8 NYCRR § 200.5(g)(2); 8 NYCRR § 200.5(j)(3)(viii); 34 CFR § 300.502(d). The Regulations do not provide limitations or guidance about hearing officer requests or directives for IEEs. There are however limitations to an IHO’s authority to order IEEs “‘as part of’ the larger process.” Lyons v. Lower Merrion Sch. Dist., 2010 WL 8913276, at *3 (E.D. Pa. Dec. 14, 2010). See also S. Kingstown Sch. Comm.

v. Joanna S., 2014 WL 197859, at *9 n.9 (D.R.I. Jan. 14, 2014), where the opinion that the regulation empowers hearing officers to solicit independent expert opinions was acknowledged, but disagreement was expressed that the regulation gives an IHO "the inherent power to make up remedies out of whole cloth", aff'd, 773 F.3d 344 (1st Cir. 2014) (cited in Application of a Student with a Disability, Appeal No. 21-021).

Furthermore, an impartial hearing officer has broad authority to grant any relief such officer deems necessary, under the particular facts and circumstances of each case as supported by the hearing record, to ensure that a child receives the free and appropriate public education to which the child is entitled. See, Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359,556 IDELR 389 (1985) (IDEA empowers courts [and hearing officers] with the broad authority to fashion appropriate relief, considering equitable factors, which will effectuate the purposes of IDEA); Forest Grove Sch. Dist. v. TA., 557 U.S. 230, 52 IDELR 151, n. 11 (2009); Cocores v. Portsmouth Sch. Dist., 18 IDELR 461 (D.N.H. 1991) (finding that a hearing officer's ability to award relief must be coextensive with that of the court); Letter to Kohn, 17 EHLR 522 (OSEP 1991) ("Although Part B does not address the specific remedies an impartial hearing officer may order upon a finding that a child has been denied FAPE, OSEP's position is that, based upon the facts and circumstances of each individual case, an impartial hearing officer has the authority to grant any relief he/she deems necessary, inclusive of compensatory education, to ensure that a child receives the FAPE to which he/she is entitled"). Here, the record establishes that Student’s triennial evaluation was completed in 2018. The DOE Representative and Parent’s Attorney confirm that, “there was a vocational assessment conducted in May of 2020, as well as a vocational assessment conducted in May of 2019, and a psychoeducational evaluation was April of 2018.” [June 27, 2023 Hearing Trans., 25-27]. A CSE must evaluate a student every three (3) years. 8 NYCRR §200.4 (b)(2) and the DOE failed to do this. Thus, due to DOE’s failure to evaluate Student in over five-years, I find that Parent is entitled to an independent neuropsychological evaluation, OT evaluation, and SL evaluation. Compensatory Related Services The relief requested by the Parent is equitable in nature, as Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years. Here, Parent requested “the [] DOE to provide at least 1600 hours of compensatory tutoring at the enhanced rate, based on the denial of an appropriate placement, services and FAPE, for the 2018-2019, 2019- 2020, 2020-2021 and 2021-2022 school years.” Additionally, Parent requested “DOE [to] provide at least 40 hours each of compensatory OT, SLT, and counseling at the enhanced rate, based on the denial of an appropriate placement, services and FAPE, 2020-2021 and 2021-2022 school years.” [IHO Ex. IX, 30]. It is important to note that while allocating an evidentiary burden to the district, a parent nevertheless has a responsibility to identify the compensatory education remedy sought in the same fact-specific manner, and it is insufficient to assert general statements.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993). As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015]. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]. Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” See Id. at 522. Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” See Id. at 518.

There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation], and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits, see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “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”].

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is appropriate in light of the purpose of the Act” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student

X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]. In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current’s needs”; however, 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.” Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted].

Parent’s request for the DOE to provide at least 1600 hours of compensatory tutoring at the enhanced rate.

Director of Private Tutoring

A February 9, 2023 report from Director and founder of Private Tutoring indicated she evaluated the student to determine his academic areas of strength and weakness and his specific instructional needs, and to help determine his reading, spelling, mathematics, and written expression skill levels. [P- Y, 1]. To assess the student's reading skills, Director reported that she asked Student to read a series of words using the Wide Range Achievement Test (“WRAT”). [Id.]. Using this same diagnostic exam, he was asked to spell a series of words to test his encoding skills and he completed a series of mathematics problems to assess his mathematics skills. [Id.]. To assess his writing abilities, Student was asked to complete a writing sample using the Test of Written Language (“TOWL”). [Id.]. Finally, the director used the Qualitative Reading Inventory (“QRI”) to assess his reading comprehension skills. Director reported that based on her assessment, Student tested at a mid-fourth grade level for spelling and a low fourth grade level for both decoding and mathematics. He also tested at a mid-third grade level for writing and a third-grade level for reading comprehension, all well below the expected levels for his grade.

Director's testimony was consistent with her February 9, 2023 report [July 11, 2023 Hearing Trans.

p. 18-26, P- CC]. She indicated that based on Student’s cognitive abilities and her experience working with students with similar profiles, she believed that Student had the potential to make progress in his areas of weakness [Id.]. In her affidavit, Director recommended that Student receive 800 hours of one-on-one multi-sensory tutoring using the Orton Gillingham methodology to develop his decoding and spelling skills, as well as similar research-based, multi-sensory tools to build his reading comprehension, writing, and mathematics skills. [Id.]. However, at the hearing, she repeatedly stated that Student should receive a minimum of 800 hours. [P - CC, 3, July 11, 2023 Hearing Trans. p. 19, 23]. She did not state specifically how many more hours Student should receive or why she believed Student needed more hours since her recommendation was based on student's overall profile, along with her evaluation of the student and her review of the student's records. [Id.].

Director explained that she personally matches each student to a Private Tutoring special education provider, and she communicates weekly with each provider to ensure that the student is constantly improving. Director testified that Student is not a student enrolled at Private Tutoring and Student has not received any tutoring sessions, but the cost of the tutoring would be $140 per hour. [P – CC, 3, July 11, 2023 Hearing Trans. p. 124]. She also testified that the current rate is $150 per hour. [Id.]. I find the testimony of Director of Private Tutoring to be credible and persuasive. I found her testimony to be straight forward and reliable.

While Parent requested 1600 hours of compensatory tutoring, which was an additional 800 hours more than the number of hours recommended by Director of Private Tutoring, the record does not support such an award. Again, Parent’s witness, Director of Private Tutoring, credibly established that given the student's overall profile, along with her evaluation of the student and her review of the student's records, she recommended 800 hours of one-to-one tutoring. I find that the hearing record is devoid of credible, and persuasive evidence showing that Parent’s requested relief of 1600 hours was warranted to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place. In her closing brief, Parent’s attorney disregarded her witness’ testimony and created her own reason explaining Parent’s requested relief, “Parents have requested 1600 hours… this constitutes 400 hours per year, which is less than 2 hours a day for a school year of 180 days, plus 6 weeks of ESY of 210 days.” Again, I am not persuaded by Parent’s argument.

Parent’s request for the DOE to provide at least 40 hours each of compensatory OT, SLT, and Counseling at the enhanced rate.

Additionally, the hearing record does not support an award of “at least 40 hours each of compensatory OT, SLT, and counseling at the enhanced rate, based on the denial of an appropriate placement, services and FAPE, [for the] 2020-2021 and 2021-2022 school years.” I am not persuaded by Parent’s attorney’s arguments. It is well established that an outright default judgment awarding compensatory education—or all of the relief requested without question—is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] [rejecting "lump sum" grant of tutoring as a compensatory remedy for a multi-year denial of FAPE]).

With no evidence supporting an award of Parent’s request, I cannot grant the relief requested. The IDEA 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].

Based on the District's failure to provide Student with a FAPE for the 2018-2019, 2019-2020, 2020-2021, and 2021-2022 school years, the evidence presented at the hearing, the undersigned noting that student made minimal academic progress, I find the recommended 800 hours of compensatory instruction reasonable. No additional award is granted for the reasons stated above.

Period of Utilization of Compensatory Relief

Providing Student with no expiration date to utilize the compensatory education services is not only excessive, it calls into question whether Student would derive any educational benefit from services designed to reasonably address his immediate needs and place him in the position he should have been in but for the denial of FAPE. Accordingly, the compensatory services must be used within 3 years of this order.

Other Relief

I find that the Parent’s 504 claims are subsumed within the framework of the IDEA. Therefore, I will not separately analyze the 504 claims raised in the complaint.

The IDEA does not authorize an administrative officer to award attorneys’ fees or other costs to a prevailing party; and entitlement, if any, to costs must be determined by a court of competent jurisdiction. Only a court can determine who is entitled to attorneys’ fees and I would be exceeding the scope of my authority by determining that the Parent is the prevailing party entitled to costs.

Other than the relief set out in my Order below, I find that no basis and/or evidence in the Record supports any additional relief.

ORDER

Based on the foregoing, it is hereby:

ORDERED, the DOE failed to provide Student a FAPE for the 2018-2019, 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years, and it is further

ORDERED, Private School was an appropriate placement for Student for the 2022-2023 school year, and it is further, ORDERED, the DOE shall reimburse the Parent in the amount of $1,000 for the direct payment Parent made to the Private School for Student’s tuition for the 2022-2023 school year, and it is further, ORDERED, the DOE shall directly fund the balance of the Student’s tuition at the Private School in an amount not to exceed $129,000, and it is further, ORDERED, the DOE shall fund eight hundred (800) compensatory hours of 1:1 multisensory tutoring by [REDACTED], or a similar provider, at a rate of $150.00 per hour. Services may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations; and it is further, ORDERED that, to the extent such services, as described above, are not utilized by Student by three years from the date of this Order, any remaining services shall expire, and it is further, ORDERED, within 35 days of the date of this order, the DOE shall fund at a reasonable market rate a neuropsychological evaluation by a qualified provider of the Parent’s choosing; and it is further, ORDERED, within 35 days of the date of this order, the DOE shall fund at a reasonable market rate a speech and language evaluation by a qualified provider of the Parent’s choosing; and it is further, ORDERED, within 35 days of the date of this order, the DOE shall fund at a reasonable market rate an occupational evaluation by a qualified provider of the Parent’s choosing.

SO ORDERED.

DATED: September 14, 2022

Lorianne M. Wolseley, Esq. Impartial Hearing Officer

Lorianne M. Wolseley, Esq.

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.

PARENT’S EXHIBITS

A. Exhibit Date Description # of Neuropsychological Evaluation 5.17.13 13 pages

B. Functional Behavioral Assessment 11.25.14 9 pages

C. Functional Behavioral Assessment 11.19.15 10 pages

D. Behavior Intervention Plan 11.19.15 5 pages

E. Behavior Intervention Plan 11.2.16 4 pages

F. Functional Behavioral Assessment 11.4.16 5 pages

G. Individualized Education Program 11.16.16 27 pages

H. Waiver of IEP Meeting to Amend IEP 6.22.17 2 pages

I. Psychoeducational Evaluation 4.24.18 8 pages

J. Individualized Education Program 5.8.18 34 pages

K. Individualized Education Program 5.17.19 30 pages

L. Special Education Remote Learning Plan 3.18.20 2 pages

M. Individualized Education Program 5.14.20 33 pages

O. N 2021- Student SANDI Scores 2 2022 Level 1- Parent Alternate Assessment 4.20.21 3 pages

P. Level 1 Vocational Interview- Parent 4.22.21 3 pages

Q. Level 1 Vocational Interview-Student 4.22.21 1 page

R. Individualized Education Program 4.22.21 24 pages

S. Level 1 Vocational Assessment Teacher Questionnaire 3.7.22 2 pages

T. Level 1- Parent Assessment 4.11.22 3 pages

U. Individualized Education Program 4.11.22 23 pages

V. Speech/Language Progress Report 8.9.22 2 pages

W. redacted Notice of Unilateral Placement 8.22.22 2 pages

Y. X December redacted Interdisciplinary Developmental Summary 8 2022 redacted Evaluation 2.9.23 2 pages

Z. 2022-2023 redacted School Attendance 3.13.23 1 page

AA. Tuition Affidavit of Program Director 3.17.23 1 page

BB. Program Description –redacted Undated 8 pages

CC. Affidavit of Director of Private School 3.23.23 3 pages

DD. Affidavit Parent 3.29.23 10 pages

EE. NOT ADMITTED 2.1.23 15 pages

FF. Affidavit of Director of Private School 3.29.23 7 pages

GG. redacted Interdisciplinary Report of Progress Update 6.12.23 14 pages

IHO EXHIBITS

I. DUE PROCESS Complaint 2/1/2023 14 pages IHO

II. DOE’s Motion to Dismiss 4/5/2023 5 pages IHO

III. Prior Written Notice: Package for Placement (“PWN”) 5/15/2018 7 pages IHO

IV. Prior Written Notice: Package for Placement (“PWN”) 5/20/2019 8 pages IHO

V. Parent’s Opposition to DOE’s Motion to Dismiss 4/20/2023 10 pages IHO

VI. Brief on Section 504 CLAIMS 5/9/2023 8 pages IHO

VII. Ruling on DOE’s Motion to Dismiss 6/7/2023 7 pages IHO

VIII. Email communication between Parties Regarding Closing 7/26Briefs 7/28/2023 3 pages IHO

IX. Parent’s Closing Brief 7/26/2023 33 pages IHO

Footnotes

[4] The November16, 2016 IEP shows Student “participating in the same state and district-wide assessments of student achievement that are administered to general education students.” [See P – G, 22]. The 2017 IEP was not submitted into evidence by the parties. On the May 8, 2018 IEP, a New York State Alternate Assessment (“NYSAA”) was deemed appropriate by Student’s school, according to the CSE team Student’s cognitive impairment prevented Student from participating in a standardized assessment. [P- J, 28]. No additional information is found in that IEP or the subsequent IEPs to establish that Parent was clearly informed that Student’s performance would be measured based on alternate achievement standards that are reduced in depth, breadth, and complexity and do not meet the expectations necessary to earn a regular high school diploma.

[5] The DOE did not submit credible testimonial or documentary evidence establishing that Parent received the procedural safeguards as it relates to the NY State Alternate Assessment Program and the effects on Student. As noted in an interim order, the SOL does not apply here since the DOE withheld critical information from the Parent. [IHO Ex. VII].