New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 245687

Student’s Name: [REDACTED]

School District: [REDACTED]

Impartial Hearing Officer: Renée J. Adonis, Esq.

Date of Filing: 02/06/2023

Date of Filing Amended Request: 06/09/2023

Hearing Requested by: [REDACTED] (“Parent”)

Date of Hearing: 09/06/2023

Record Close Date: 10/20/2023

Date of Decision: 10/20/2023

BACKGROUND

The Parent filed a Due Process Complaint (DPC) on or about February 6, 2023. In the DPC, the Parent alleges that the Student was below grade level in reading, math, and writing and not receiving services unless the Parent contacted the school. See Initial DPC. On June 6, 2023, Parent, through counsel, filed an amended DPC adding the allegation that the Department of Education (DOE or District) failed to offer the Student a free and appropriate public education (“FAPE”) for the 2021/2022 and 2022/2023 school years. The District approved the amendment of the DPC on June 9, 2023. See Exhibit R. By way of relief, the Parent seeks in the amended DPC (1) to have the Committee on Special Education (CSE) convene to develop an appropriate IEP to address the Student’s behavioral, academic, and emotional needs; (2) Independent Educational Evaluations (IEEs) for Occupational Therapy (OT) and neuropsychological report; (3) an award of compensatory education of 500 hours of individual tutoring at an enhanced rate; and (4) ) an award of compensatory education of 20 hours of Counseling at the enhanced rate. See Id.

PROCEDURAL HISTORY

I was appointed Impartial Hearing Officer (“IHO”) for this case on April 26, 2023. On March 23, 2023, the parties appeared for a WebEx Pre-hearing Conference (“PHC”). At the PHC the Parent appeared without legal representation and sought Special Education Teacher Services (SETSS) for the 2022-2023 School year. The Parent later retained Counsel and appeared for a new PHC based upon the filing of the Amended DPC. At the July 13, 2023 PHC, the Parent sought the relief delineated in the Amended DPC as noted above.

On September 6, 2023, both parties appeared for a virtual due process hearing. The DOE conceded they did not provide FAPE under Prong I of the Burlington/Carter standard and presented no documents or witness testimony into evidence. See Tr. 32 and 334. Parent Representative (“Parent Rep.”) presented exhibits A- T for submission into the record, the DOE Representative (“DOE Rep.”) objected to the admission of exhibits A, B, C, D, M and Q. The Parent withdrew the submission of exhibits A, B, C and E^[1] and the remaining exhibits were admitted into evidence over objection of the DOE Rep. Included in Parent’s evidence were affidavits from the Student’s mother and Director from Private Tutor. See Tr. 35-67, 70. Both affidavits were admitted in the record as direct testimony and DOE Rep. cross-examined both affiants. See Tr. 13-19. A list of exhibits admitted into evidence is attached. Although only portions of the evidence are referenced in this decision, all the testimony and documents were fully reviewed. At the end of the hearing, the Parties requested to submit written closing arguments and moved for an extension of the compliance period, both requests were granted. The current compliance date for issuing a decision on this matter is October 22, 2023.

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

Both the IDEA and the New York (NY) Education Law provide that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A); NY Education Law §§ 4402(2)(a) and (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Program (“IEP”). See 20 U.S.C. §§ 1401(9), (29). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” See Endrew F. ex rel. Joseph

F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. See 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).

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). A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” Rowley, 458 U.S. at 203. However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP.” See Walczak v. Florida Union Free School Dist., 142 F.3d 119, 130 [2d Cir. 1998]; Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created” Endrew F., 137

S. Ct. at 1001. 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). Additionally, school districts are not required to “maximize” the potential of students with disabilities Rowley, 458 U.S. at 189; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide “an IEP that is ‘likely to produce progress, not regression,’ and . . . affords the student with an opportunity greater than mere ‘trivial advancement.’” Cerra v. Pawling Central School Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130. The IEP must be “reasonably calculated to provide some ‘meaningful benefit’” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 [holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances”]; Rowley, 458 U.S. at 192.

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.” See Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion. See Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA, see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” Doe v. East Lyme, 790 F.3d at 454.

Under the NY Education Law, school districts have the burden of proof, including the burden of persuasion and the burden of production, in 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 the burden of production on the appropriateness of such placement. See Education Law § 4404(1)(c); T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016); C.F. ex rel. R.F. and G.F. v. New York City Dept. of Educ., 746 F.3d 68, 76 (2d Cir. 2014), R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-

85 (2d Cir. 2012).

FINDINGS OF FACT AND DECISION

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. See M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). Here the DOE conceded that they failed to provide the Student with a FAPE for the 2021/2022 and 2022/2023 school years. See Tr. 70. Moreover, the DOE did not make opening or closing statements or present any witness testimony, or documents into evidence in this proceeding. Based on the DOE’s failure to sustain its burden under NY Education Law, I find the record establishes that the DOE did not provide the Student with a FAPE for the 2021/2022 and 2022/2023 school years.

The relief requested by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE for the 2021/2022 and 2022/2023 school years. Specifically, Parent has requested that the IHO order

1) the CSE convene to develop an appropriate IEP to address the Student’s behavioral, academic, and emotional needs;

(2) the DOE to fund IEEs for OT and neuropsychological report;

(3) an award for compensatory education of 500 hours of individual tutoring at an enhanced rate; and

(4) an award for compensatory education 20 hours of counseling at the enhanced rate. 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.” See 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.” See Doe v. East Lyme, 790 F.3d at 454.

Discussion of Awarding Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. See E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit held, “[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.” See 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.” See 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.’” See 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.” See Doe. v. East Lyme, 790 F.3d at 457.

Under New York law, the District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. See NY 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].

The hearing record establishes that the Student was not provided a FAPE for the 2021/2022 and 2022/2023 school years. The uncontroverted testimony of the Director and the Parent, and the uncontested documentary evidence support a finding that Student was denied a FAPE. As such, I hold that the Student is entitled to compensatory education to compensate for what Student was deprived of during the school years in question.

Relevant Testimony

Director

The Director testified via affidavit and live testimony that on July 28, 203, she assessed the Student to determine his academic areas of strength and weakness and determine the Student’s specific instructional needs. See Exhibits Q. 1 and S. 2. The Director assessed the Student’s reading, spelling, and math skills utilizing the Wide Range Achievement Test (WRAT). The Test of Written Language (TOWL) was completed to assess the Student’s writing abilities. Finally, the Qualitative Reading Inventory assessed the Student’s reading comprehension skills. See Exhibit

Q. 1. The assessments indicated that the Student tested below his expected grade level in all areas. Specifically, the Student tested at a low sixth-grade level for math and writing, a low seventhgrade level for reading comprehension and decoding, and a mid-fourth-grade level for spelling.

Based on the assessments performed, the Director recommended that the Student receive a total of 500 hours of intensive one-on-one multi-sensory instruction to remediate gaps in the Student’s foundational skills. Moreover, this intensive remediation program is necessary to aid the Student in developing his reading and spelling skills, particularly using an Orton Gillingham technique and similar multi-sensory construction to build decoding, spelling, writing, math, and reading comprehension skills. Specifically, the Director recommended that the Student receive an average of 5-7 hours per week of one-on-one instruction over approximately a two-year period. See Exhibits Q. 1 and S. 2-3

The Director also testified that the Private Tutor provided tutoring services to the Student from September 2021 to August 2023 for approximately four hours per week.

Regarding the Student’s response to the individual tutoring sessions, the Director testified that the Student “did a fantastic job” and while he “responded very well,” the Student needed a great deal of repetition to grasp new concepts. Further, the Student was functioning at a 2nd-grade level in spelling and fourth/fifth-grade level in his other skills when tutoring sessions started in the Fall of 2021. The Student has progressed so that he is now functioning at a fourth to seventh-grade level. See Tr. 92-93. However, the Director maintains that 500 additional hours are required because the Student is currently in the [REDACTED] grade but is still functioning at a seventh-grade level academically and he needs a lot of repetition of tasks and instruction. Therefore, the Student needs tutoring services at a greater frequency than previously provided to continue building the Student’s academic skills. See Tr. 81-87.

Parent

The Parent’s testimony further demonstrates how the CSE failed to provide the Student an appropriate program or IEP goals for the 2021/2022 and 2022/2023 school years. The CSE failed to convene on time or provide the Student with the services and supports mandated in the IEP. Specifically, in the 2021/2022 school year the Student was mandated to receive (1) SETSS three times per week in ELA and two times per week for Math; (2) counseling for one 40-minute individual session and one 40-minute per month group session; and (3) use Assistive Technology (AT). However, it is uncontested that the Student did not receive these services and support. See Exhibits D. 10-11 and T. 1-4. Thereafter, for the 2022/2023 school year, without explanation, the Student’s IEP removed SETSS, even though he has remained functioning at a seventh-grade level in reading and regressed to a sixth-grade level in math. In addition, the CSE reduced the Student’s counseling sessions to once per month for 40 minutes. See Exhibits H. 7-8 and T. 4 The Parent corroborated the Director’s testimony that the Student received tutoring for approximately four hours per week during the school year and approximately eight hours per week during the Summer breaks during the period of Fall of 2021 until August 2023. See Tr. 107-108. The Parent testified that the tutors helped the Student to complete his schoolwork and homework and worked on other skills during the Summer months. Importantly, the Student passed all his classes in the 2021/2022 and 2022/2023 school years and met the requirements of his classwork due to these tutoring sessions. However, the Student still struggled with the classwork even with tutoring support. See Tr. 108-110.

The Parent warned that the Student continues to have difficulty with passing Regents exams so compensatory education tutoring services will assist the Student in passing the Regents exams. See Tr. 112-113. The Parent believes that 500 hours of compensatory education is needed because the Student is in High School, yet performs on a seventh-grade level, even with private tutoring, after-school tutoring, and assistance at home. As such, the Parent feels strongly that the Student has not in fact made meaningful progress and needs this amount of intensive help, to at least, get the Student closer to a high school grade level of skills. See Tr. 115-116.

Requested Relief

Tutoring and Counseling

The Parent is requesting a compensatory education award of a bank of 500 hours of individual tutoring and a bank of 20 hours of individual counseling for the Student, to compensate for the academic deficits resulting from the DOE’s denial of FAPE for the 2021/2022 and 2022/2023 school years. As previously noted, the purpose of a compensatory education award is to “compensate for a past deficient program.” See Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). It “must be designed to provide a student with the educational benefits that [they] would have received had the school district provided appropriate special education services in the first place.” See J.N. ex rel. M.N. v. Jefferson County Bd. of Educ., 12 F.4th 1355, 1367 (11th Cir. 2021).

The hearing record establishes that the Student is below grade level in reading, writing, and math, and has been classified with a Learning Disability. See Exhibit D, E, and H. According to the testimony of the Parent’s evidence, the Student did not receive an appropriate education during the 2021/2022 and 2022/2023 school years, regressed in math, and tested below grade level in reading, writing, and math. However, the record also reflects that although the Student remains below grade level, the Student received, and progressed from receiving, approximately 4 hours per week of individual tutoring from the Private Tutor. In fact, the record shows that the Student improved at least three grade levels, from second-grade level to a fourth to seventh-grade level, and passed all his classes in the 2021/2022 and 2022/2023 school years. However, the record also substantiates that the Student is still significantly below grade level academically and struggled to pass his classes even with the support of tutoring.

The DOE did not present any witness testimony or documentary evidence to explain why it made the program recommendations contained in the IEP it developed for the Student’s 2021/2022 and 2022/2023 school years, notwithstanding the Supreme Court’s admonition that “[a] reviewing court may fairly expect those authorities [school district staff] 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 his circumstances.” See Endrew F. ex rel. Joseph

F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 (2017).

The DOE also failed to present any evidence or testimony to challenge or rebut the findings and recommendations presented by the Parent. However, in its written closing brief the DOE did argue that the Parent’s compensatory award should either be denied or reduced as the Parent’s request is based on a calculation based on the school year without establishing a causal link between the denial of FAPE for the two years and the specific amount of compensatory tutoring sought. See IHO Exhibit II. I disagree with the DOE’s assessment of Parent’s evidence. I find that part of the FAPE denial is linked to the Student not receiving SETSS and counseling services as mandated in the Student’s IEP. The IEPs for 2021/2022 and 2022/2023 entitled Student to SETSS two times per week for math and three times per week for ELA along with individual counseling^[2] for one time per month based on a 10-month program. See Exhibit D. 10-11. The Director's July 31, 2023 letter, noted the recommendation that the Student “receive 500 hours of intensive one-on-one multi-sensory tutoring using the Orton Gillingham technique as well as similar multi-sensory instruction to build his decoding, spelling, writing, mathematics and reading comprehension skills.” See Exhibit Q. As such, I find that there is a direct causal link between the FAPE denial and the need for compensatory relief resulting from the Student not receiving SETSS that would have addressed the Student’s weaknesses in reading, writing, and math. The award of compensatory tutoring will directly address the deficits in these subject areas.

Having found that the Student is entitled to compensatory services, based on a quantitative analysis, I hold that the Student is entitled to 360 individual tutoring hours. These services are required to allow the Student to reach the academic levels the Student would have otherwise attained but for the fact that the Student was provided with an inappropriate special education program for the 2021/2022 and 2022/2023 school years. See Exhibits Q and S. The record demonstrates that the Student responded positively to receiving approximately 4 hours per week of tutoring services. Moreover, the Student was entitled to 5 SETSS hours per week for each year of deprivation. Finally, the Director recommended 5-7 hours per week over the next two years.

The Parent appears to request compensatory education for more than a full school year, requesting make-up services for approximately^[42] weeks of missed instruction during the 2021/2022 and 2022/2023 respective school years. Pursuant to New York State (NYS) regulations, a 10-month school year from September through June consists of at least 36 weeks. It is only a 12-month school year including the months of June through July, that total would be The District cites State Review Officer (SRO) decisions (23-157 and 23-153) to correctly argue that the Parent is not entitled to IEEs as the record shows the first disagreement with the District’s evaluation was raised in the DPC. The District maintains that the IDEA and NYS regulations require the Parent to have raised the disagreement with the evaluation prior to the filing of the DPC. See IHO Exhibit II.

The IDEA seeks to ensure that all children with disabilities have available to them a free appropriate public education. See 20 U.S.C.S. § 1400(d)(1)(A). Consequently, IDEA establishes a process by which school districts and parents collaborate to develop individualized education programs for students with disabilities. As part of this process, school districts evaluate children to assess any disabilities and determine their educational needs. See 20 U.S.C.S. § 1414(a)(1)(C), (d)(1), and (d)(3)(A)(iii). The IDEA and State and federal regulations allow a parent of a child with a disability 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).

When a parent disagrees with a school district’s evaluation and requests an IEE at public expense, the school district “must, without unnecessary delay,” either (1) ensure that an IEE is provided at public expense; or (2) initiate an impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. See 34 C.F.R. § 300.502(b)(2)(i) -(ii); 8 NYCRR § 200.5(g)(1)(iv) (emphasis added).

SROs have expressed reservations where the initial request for IEEs is noted in the DPC and held that such a request is not the process contemplated by the IDEA and its implementing regulations (Application of the Dep't of Educ., Appeal No. 23-034; Application of a Student with a Disability, Appeal No. 22-150). See SRO 23-157, 22.

In this action, the District did not complete a triennial evaluation which they deemed to be unnecessary. However, at Parent’s request, the District then completed a psychological evaluation of the Student on March 11, 2023. See Exhibits I, K, and T. However, there is no evidence in the record to note that the Parent gave a notice of disagreement with the District’s evaluation or to request IEEs as required by the regulations. The Parent only expressed disagreement with the District’s evaluation and requested IEEs in the DPC. Therefore, since the Parent failed to request the IEEs prior to the DPC, I find that pursuant to 8 NYCRR § 200.5(g)(1)(iv) the Parent is not entitled to IEEs at public expense.

The Parent also cited IHO's broad authority to craft appropriate remedies to order these evaluations at the District's expense. See IHO Exhibit I. However, in this case, the Parent’s Rep. failed to provide established documentary or testamentary evidence to substantiate an exercise of IHO authority to grant IEEs. While the Parent testified that she requested the evaluation, she only stated that the psychoeducational evaluation validated her concerns. The Parent did not show she gave notice that the evaluation was insufficient. See Exhibit T.5. This is of particular note as the Parent is employed as a School Counselor. See Exhibit M.1. There is nothing in the evidence to show that the lack of a social-emotional assessment in the psychological evaluation created by the District renders it deficient. The assertion that the evaluation did not contain recommendations without more, does not persuade me to exercise my discretion to order IEEs at public expense.

Similarly, the Parent has not established grounds for an OT evaluation. The Parent requests an OT evaluation because the District failed to complete OT evaluations despite the Student’s “struggles with organization and writing.” The record documents the Student’s issues with writing specifically the Student’ ability to organize; add transitions; write in a cohesive and structured manner; develop writing stamina towards writing a five-part essay and the need for support with spelling and grammar. Moreover, the IEP acknowledges that the Student “requires the use of assistive technology to complete extended writing specifically use of a laptop with grammar correction as this improved [the Student’s] engagement with written expectations.” See Exhibit DOE. 1. 2 and H. 2. Nothing in the record demonstrates that the DOE did not appropriately evaluate the Student for OT or show that OT was necessary to address the Student’s writing needs. There is no evidence that there is an area of suspected disability which would have required them to assess this area.

As such, I decline to grant of a neuropsychological and OT evaluation at public expense based upon the IHO’s broad discretion to grant IEEs based on the principle of equity.

AT The Parent also requested an AT device with the appropriate grammar programs. The Parent’s testimonial and documentary evidence clearly established that the Student was mandated to receive AT. See Exhibits H. 8, L and T. 2-3. Moreover, the District did not present any evidence that it met the obligations under the IEP or provided the mandated AT device. As such, the Parent’s request for AT device with appropriate grammar programs is granted.

CSE Reconvene

The Parent also requests that the CSE reconvene a duly constituted IEP team to develop an appropriate IEP for the Student to address his behavioral, academic, and emotional needs to allow for meaningful and measurable progress. Since I find that the DOE failed to provide the Student with a FAPE and the record indicates that the Student is functioning below grade level in math, reading, and writing, I am granting Parent’s request. I order the DOE to reconvene to develop an appropriate IEP program to address the Student's needs and facilitate progress.

ORDER

Based on the foregoing, it is hereby:

ORDERED, the DOE failed to provide Student a FAPE for the 2021/2022 and 2022/2023 school years; and it is ORDERED, the DOE shall within 15 days of this order, reconvene the CSE to create an appropriate program that addresses the Student’s needs to facilitate meaningful progress; and it is ORDERED, the DOE shall fund a bank of 360 hours of individual tutoring to be provided by a qualified independent provider(s) of Parent’s choosing at the provider’s normal and customary rate; and it is ORDERED, the DOE shall fund a bank of 20 hours of individual counseling to be provided by a qualified independent provider(s) of Parent’s choosing at the provider’s normal and customary rate; and it is ORDERED, the DOE shall provide the Student with an AT device (laptop) with an appropriate grammar program; and it is IT IS FURTHER ORDERED that the bank of 360 hours of individual tutoring and 20 hours of individual counseling set out in this Order shall not expire until two (2) years from the date of this Order and shall be scheduled according to Parent’s convenience.

Dated: October 20, 2023

Renee Adonis, Esq.

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. Individualized Education Program 16 pages 12/20/2021 DOE

PARENT EVIDENCE

A. Exhibit Date Description # of WITHDRAWN B C

D. Individualized Education Program 9.18.2020 18 pages

E. WITHDRAWN

F. Waiver of IEP Meeting to Amend IEP 5.12.2022 1 page

G. Report Card 6.27.2022 1 page

H. Individualized Education Program 12.20.2022 15 pages

I. Mandated Three Year Review Prior Written Notice 12.21.2022 3 pages

J. Correspondence from Parent 1.24.2023 3 pages

K. Psychological Evaluation 3.11.2023 10 pages

L. Social History 3.21.2023 2 pages

M. September 2022- Correspondence between Parent and District March 2023 23 pages

N. Teacher Progress Report—English 4.26.2023 6 pages

O. Teacher Progress Report—Algebra 4.26.2023 6 pages

P. Individualized Education Program 4.26.2023 17 pages

Q. Correspondence from [REDACTED] 7.31.2023 1 page

R. Amended Request for Impartial Hearing 6.8.2023 9 pages

S. Affidavit of [REDACTED], Director of [REDACTED] 8.24.2023 3 pages

T. Affidavit of [REDACTED], Parent 8.29.2023 6 pages

IHO EXHIBITS

PARENT

I. Closing Brief 10/10/2023 17 pages IHO

II. DOE Closing Brief 10/10/2023 8 pages IHO

Footnotes

[1] The Parent withdrew Exhibit E as the left margin of the document was missing and the District agreed to provide a legible copy which was marked and entered as Exhibit DOE 1. See Tr. 48-49 and 71.

[2] The Student was also entitled to group counseling 1 time per month in the 2021/2022 school year. See Exhibit D. 10-11.

[42] weeks. This is based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six-week program (see Educ. Law § 3604[7]; 8 NYCRR 200.1[eee]). As such, the calculation for compensatory education is based on five hours per week for a period of 36 weeks per year (a 10-month school year) for both 2021/2022 and 2022/2023. Furthermore, I grant the Parent’s request for 20 hours of counseling services. The Parent credibly testified that the Student was mandated to receive one hour of individual counseling per month pursuant to his IEP and did not receive it. The District did not present any evidence challenging Parent’s testimony. As such, based on a quantitative approach, I hold that the Student is entitled to 20 hours of individual counseling (one hour per month x a 10-month period for the two school years at issue). IEEs The Parent also requests OT and neuropsychological evaluations be conducted at public expense. The Parent argues that they are entitled to a neuropsychological evaluation since the District failed to appropriately evaluate the Student by not conducting a social-emotional assessment in its psychological evaluation and not recommending supports and strategies to help the Student progress. The Parent also argues that the Student requires an OT evaluation as the Student struggles with “organization and writing.” See IHO Exhibit I.