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Case Number: 596310 – NYC: 245881
FINDINGS OF FACT AND DECISION
Student's Name: [REDACTED]
Date of Birth: [REDACTED]
District: [REDACTED]
Hearing Requested By: Parent
Date of Hearing: 03/27/2023
Actual Record Close Date: 04/05/2023
Decision Date: 04/07/2023
Hearing Officer: Daniel Ajello Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 3/27/2023
(All Parties Appeared Via Teleconference)
For the Student:
[REDACTED], Attorney
[REDACTED], Parent Student
For the Department of Education:
None
DOCUMENTATION ENTERED INTO THE RECORD
PARENT
Ex. Date Document Page(s) A 2.13.23 Due Process Complaint (DPC) 18 pages B 6.4.20 Individualized Education Program (IEP) 23 pages C 5.28.21 Individualized Education Program (IEP) 21 pages
D June 2021 2020-2021 Final Report Card 1 page E 3.6.22 Classroom Observation 1 page F 5.10.22 Educational Evaluation Report 6 pages G 5.24.22 Individualized Education Program (IEP) 27 pages
H June 2022 2021-2022 Final Report Card 1 page I 2.2.23 [REDACTED] ([REDACTED]) Evaluation Report 5 pages J 3.9.23 Affidavit of [REDACTED] 9 pages K 3.16.23 Affidavit of [REDACTED] 29 pages (Sworn to on 03/27/2023)
DEPARTMENT OF EDUCATION (DOE)
NONE
IMPARTIAL HEARING OFFICER
I Notice of Appointment, 02/14/2023, 4 pages
II Notice of Appearance, 03/16/2023, 1 page
INTRODUCTION
On 02/14/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.
Hearing commenced, and concluded, on 03/27/2023.
The DOE did not appear, at Hearing, to avail itself of the opportunity to defend against the allegations contained in the DPC. (Ex A)
Appended to the record are lists of persons in attendance and the documents received in evidence.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “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 § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
THE POSITION OF EACH PARTY
The DOE did not defend against the allegations contained in the DPC. (Ex A)
The Due Process Complaint (DPC) alleges a failure of the DOE to offer the Student a Free and Appropriate Public Education (FAPE) for the 20-21, and 21-22 school years. (Ex A 15-16)
Parent seeks a variety of forms of relief to remedy the alleged failure, including: DOE funded compensatory services; and Independent Educational Evaluations (IEEs). (Ex A 15-16)
Parent Attorney advised the IHO that a Partial Resolution was reached, prior to the Hearing date. (T 7)
“So we were able to resolve for the 7 evaluations. So the DOE is going to do a neuropsych, an OT, speech, and AT. And then they have issued, which the Parent has agreed to, RSAs for speech and for OT. So the remaining relief requested is the 622 hours of compensatory one-to-one tutoring…that's the remaining relief.” (T 8)
Parent Attorney continued, noting that the DOE issued Related Service Authorizations (RSAs), for the actual services the Student missed, but failed to offer compensatory services. (T 8-9)
Parent Attorney presented the Parent’s case, at Hearing, of 03/27/2023. Parent Attorney argued: the DOE failed to offer the Student a FAPE for the 20-21 and 21-22 school years; DPC was filed (Ex A); resolution session resulted in resolving several issues related to the DPC (Ex A) (T 16); and evidence presented supports an award in the Parent’s favor, awarding compensatory educational services, for the Student (T 17-26). Parent presently seeks an award of: 622 hours of compensatory tutoring services at an enhanced rate of at least $[REDACTED]an hour, including reimbursement for the $195 evaluation and $[REDACTED]enrollment -- sorry, $[REDACTED]enrollment fee at [REDACTED] that was based on denial of appropriate services and FAPE during each of the years of the relief requested. Thank you.” (T 25-26) At Hearing, the Parent supported its position via Documentary Evidence and Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:
A 2.13.23 Due Process Complaint (DPC)
Details allegations of a denial of FAPE and sets forth requested relief.
Each of the IEPs referred to are considered further below.
For the 20-21 school year Parent alleges that the IEP, of 06/04/2020 (Ex B), reveals academic struggles and delays, which were not properly addressed via the IEP supports, which kept the Student from making appropriate progress. (Ex A 2-9)
For the 22-23 school year Parent alleges that the Student continued under an inappropriate IEP (Ex B), The CSE failed to properly evaluate the Student, academic struggles and delays continued, which were not properly addressed via the IEP supports, which kept the Student from making appropriate progress. (Ex A 9-12)
An IEP was developed, on 05/28/2021 (Ex C), which continued to fail in providing the Student appropriate special education services, which resulted in Student regression. (Ex A 10-15)
Parent seeks various forms of relief, which at the present time have been limited to compensatory education relief. (Ex A 15-17)
B 6.4.20 Individualized Education Program (IEP)
Student IEP completed at the end of [REDACTED] grade, includes:
- Classification of Student Learning Disability (Ex B 1); - Details areas of Student delay (Ex B 1-5); - Recommends: Special Class 12:1+1, Occupational Therapy and Speech Language Therapy (Ex B 16-17); and - Sets forth Instructional and Functional Levels of [REDACTED] Grade for Reading and [REDACTED] Grade for Math. (Ex B 21)
C 5.28.21 Individualized Education Program (IEP)
Student IEP completed at the end of [REDACTED] grade, includes:
- Classification of Student Learning Disability (Ex C 1); - Details areas of Student delay (Ex C 1-5); - Recommends: Special Class 12:1+1, Occupational Therapy and Speech Language Therapy (Ex C 13-14); and - Sets forth Instructional and Functional Levels of [REDACTED] for Reading and [REDACTED] Grade for Math. (Ex C 18)
D June 2021 2020-2021 Final Report Card
Student [REDACTED] grade Report Card indicates passing grades.
E 3.6.22 Classroom Observation
Student [REDACTED] grade observation indicates Student was observed in class sleeping, and not participating in class.
F 5.10.22 Educational Evaluation Report
Student [REDACTED] grade report confirms severe Student delays, including teacher reporting that the Student cannot read. (Ex F 1)
G 5.24.22 Individualized Education Program (IEP)
Student IEP completed at the end of [REDACTED] grade, includes:
- Classification of Student Learning Disability (Ex G 1); - Details areas of Student delay (Ex G 1-8); - Recommends: Special Class 12:1+1, Occupational Therapy and Speech Language Therapy (Ex G 18-19); and - Sets forth Instructional and Functional Levels of [REDACTED] Grade for Reading and [REDACTED] Grade for Math. (Ex G 24)
The IEP notes the Student performed a [REDACTED] level on a Math diagnostic. (Ex G 1)
The IEPs in evidence show a continuation of failed services which have resulted in the Student presently being unable to read and regressing over the past several years. (Ex B, C & G)
H June 2022 2021-2022 Final Report Card
Student obtains passing grades, though teacher reports the Student is unable to read. (Ex F 1)
I 2.2.23 [REDACTED] ([REDACTED]) Evaluation Report Student evaluation confirms Student is significantly academically delayed, as detailed in report and Affidavit below.
Evaluation recommends a program of 622 hours to remediate Student delay. (Ex I 1)
J 3.9.23 Affidavit of [REDACTED] [REDACTED] Director provides Testimony which includes:
- Witness qualifications, and role at [REDACTED] (Ex J 1-2); - Familiarity with the Student, who was evaluated, by [REDACTED], in July and August of 2022 (Ex J 2); - Student evaluation tools included: Slosson Visual Motor Performance Test, Chall Phonetic Analysis, Slosson Oral Reading Test (“SORT”), Informal Reading Inventory (“IRI”), Achievement Test, Writing Sample, Parent Exhibit J:002 3 Huntington Study Skills Survey, and the Huntington Math Placement Exam (Ex J 2-3); - Witness describes the evaluation tools utilized for the Student, and the areas of weakness revealed by each (Ex J 4-7); - Recommendation is made of: Four Hundred Sixty-Two (462) hours of a verbal program (Sixty [60] hours Core Reading program, three hundred twelve [312] hours Splinter Skills; sixty [60] hours Vocabulary/Word Attack/Spelling and thirty
[30] hours writing) designed to address Student’s unique needs. One Hundred
Sixty (160) tutoring hours were recommended to address thirty-two (32) deficient math skills (Ex I 1-3, Ex J 3); - Student, presently in [REDACTED] grade, is not to be delayed academically, to such a degree, that specific recommendations are made in each area of deficit: a. Student requires sixty (60) hours of the Core Reader program. This number is based upon an estimated 12 hours of tutoring necessary to teach Student the skills she is missing in each of 5 grade levels ([REDACTED]); b. Three Hundred Twelve (312) hours of Splinter Skills. This number is based upon an estimated need of six hours per grade level per skill. For example, with respect to the “Getting the Main Idea” splinter skill, Student will require approximately 6 hours to acquire the sixth-grade skills, 6 hours to acquire the seventh grade skills, 6 hours to acquire the eighth grade skills, and 6 hours to acquire the ninth grade skills. This hourly breakdown applies to all thirteen splinter skills that Student is missing;
c. Sixth (60) hours of Vocabulary/Word Attack/Spelling Skills. Student is missing skills from [REDACTED]grade. [REDACTED] estimates that it will take 15 hours to acquire the skills contained in each of four workbooks;
d. Thirty (30) hours of Writing skills. Student is missing many fundamental writing skills which are contained throughout 3 separate workbooks in the [REDACTED] writing program. This number is based upon an estimated
10 hours of tutoring necessary for Student to acquire the skills presented in each book; e. [REDACTED] also recommends One Hundred Sixty (160) tutoring hours to address thirty-two (22) deficient math skills. [REDACTED] estimates that it will take Student five hours to acquire each of the 32 missing skills, which include but are not limited to, General Math Concepts, Advanced Multiplication and Division Computation Whole
Numbers and Word Problems, Fractions, Mixed Numbers, Percents, Ratio and Proportions, Graphs, Exponents, etc. (Ex J 4, Ex I 1-3); - [REDACTED] recommended remedial services would be delivered via one-on-one work with a special education teacher (Ex J 7); and - The cost of the [REDACTED] services: individual tutoring is Ninety-Seven
Dollars ($[REDACTED].00) per hour; cost of the academic evaluation fee was $[REDACTED].00; and there is an enrollment fee of $[REDACTED].00 for every student. (Ex J 8) K 3.16.23 Affidavit of [REDACTED] (Sworn to on 03/27/2023)
Student’s mother provides Testimony that includes:
- Participation in Student IEP meeting, of 06/04/2020 (Ex B); - Believe that the CSE did not have updated Student information needed to develop an IEP to enable Student progress; - Student was academically delayed (Ex K 2); - IEP presented Student academic and social challenges (Ex K 2-5); - Disagreement with Student goals which were not targeted to Student instructional grade level, and were repetitive (Ex K 6-8); - Recommended Student services did not include previous Special Education Teacher Support Services (SETSS) (Ex K 9-10); - Recommended services were not successful, Student failed to make progress, and regressed (Ex K 10-11); - Student IEP, of 05/28/2021 (Ex C), reflected Student regressions, indicating a Kindergarten level score in Reading (Ex K 11-12); - Parent details Student delays and challenges reflected in the IEP, and believes the IEP goals, and recommended services, failed to address the Student’s continued regression (Ex K 12-18); - Parent details the Student’s continued failure to made academic progress, during the 21-22 school year, as shown in the Classroom Observations, of 03/16/2022 (Ex K 19, Ex E); - Parent continues to contend the Student has not been properly evaluated (Ex K 19); - Student lack of progress, academically and concerns with Student’s physical abilities, continued (Ex K 20-23, Ex F & B); - Student Reading and Math continued to be delayed (Ex K 24-25); - IEP was developed, on 05/24/2022 (Ex G); - Student continued to fail to make academic, and therapeutic progress (Ex K 25-27, Ex G 1-5); - “I believe that [Student] failed to make meaningful progress during the course of the 2021-2022 school year due to the NYCDOE’s failure to properly evaluate [Student], failure to provide an appropriate educational placement and failure to develop appropriately ambitious IEP goals targeting [Student’s] unique needs.” (Ex K 28); and - “For all of the above reasons, I believe that the NYCDOE has failed to provide a FAPE to [Student] for the 2020-2021 and 2021-2022 school years, and I request that the IHO grant the relief requested in the Due Process Complaint.” (Ex K 29, Ex A)
FINDING OF FACTS AND DECISION
Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A][B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).
A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).
Under the IDEA, if procedural violations are alleged, an administrative 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 parents' 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).
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 (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" (Walczak, 142 F.3d at [130]; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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, 427 F.3d at 195 [quoting Walczak, 142 F.3d at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also 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).
The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).
A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).
The burden of proof is on the school district during an impartial hearing, except that a DOE offer of FAPE for the 2020-2021 & 2021-2022 School Years The DOE opted not to present a defense to the Parent’s allegations.
The DOE has not evidenced development of an appropriate IEP for either the 20-
21 or 21-22 school years.
The IEPS, as reviewed above, evidence Student regression over the past several school years. The IEPs are evidenced not to have been able to offer the Student a FAPE for the 20-21 or 21-22 school years. (Ex B, C & G)
The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 20-21 or 21-22 school years.
I find the DOE failed to offer the Student a FAPE for the 20-21 and 21-22 school years.
COMPENSATORY SERVICES
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).
The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).
In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).
If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.
A FAPE has already been found to have been denied the Student for the 20-21 and 21-22 school years.
Student is shown to have regressed during the 20-21 and 21-22 school years, resulting in a severe academic delay. The Student’s delay, resulting from the failure to offer the Student a FAPE, is evidenced via the IEPs (Ex B, C & G), the [REDACTED] Evaluation (Ex I), and Testimony. (Ex J & K)
Student is currently in [REDACTED] grade, and as of the IEP assembled on 05/24/2022, is set at Instructional and Functional Levels of [REDACTED] Grade for Reading and [REDACTED] Grade for Math. (Ex G 24)
Evidence sets forth a reasonable plan for addressing the Student’s academic delays, via individual, special education services:
- Recommendation is made of: Four Hundred Sixty-Two (462) hours of a verbal program (Sixty [60] hours Core Reading program, three hundred twelve [312] hours Splinter Skills; sixty [60] hours Vocabulary/Word Attack/Spelling and thirty [30] hours writing) designed to address Student’s unique needs. One Hundred Sixty (160) tutoring hours were recommended to address thirty-two (32) deficient math skills (Ex I 1-3, Ex J 3). - The cost of the [REDACTED] services: individual tutoring is Ninety-Seven Dollars ($[REDACTED].00) per hour; cost of the academic evaluation fee was $[REDACTED].00; and there is an enrollment fee of $[REDACTED].00 for every student. (Ex J 8)
Evidence supports an award of Compensatory services, as Ordered below.
ORDER
1. The Department of Education (DOE) failed to offer the Student a FAPE for the 2020-2021 and 2021-2022 school years.
2. The DOE shall fund individual Student compensatory services, via a special education teacher, to be utilized by 07/31/2025, as detailed below: o Four Hundred Sixty-Two (462) hours of a verbal program, which includes:
Sixty [60] hours Core Reading program Three hundred twelve [312] hours Splinter Skills Sixty [60] hours Vocabulary/Word Attack/Spelling Thirty [30] hours writing) o One Hundred Sixty (160) tutoring hours to address thirty-two (32) deficient math skills.
3. The cost of the above services shall be funded at a reasonable market rate, via a qualified provider, presently established as [REDACTED], at a rate of Ninety-Seven
Dollars ($[REDACTED].00) per hour.
4. The DOE shall fund cost of the [REDACTED] academic evaluation fee of $[REDACTED].00; and [REDACTED] enrollment fee of $[REDACTED].00.
5. The DOE shall provide Parent with any documents or forms necessary to facilitate services, and payment under this Order, within ten days of the date of this Order.
6. This decision is subject to appeal and review by the State Review Officer.
DATED: APRIL 7, 2023
DANIEL AJELLO
DANIEL AJELLO
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.
Footnotes
[130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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 Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]). An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).