New York City Department of Education, Impartial Hearing Decision

Case Number: 597575 – NYC: 246860

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED] (“Student”)

School District: [REDACTED]

Impartial Hearing Officer: Patricia Le Goff, Esq.

Date of Filing: March 22, 2023

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

Date of Hearing: 05/31/2023

Record Close Date: 07/14/2023

Date of Decision: 07/14/2023

NAMES OF PERSONS WHO APPEARED ON MAY 31, 2023

For the Student and Parent: [REDACTED], Parent Representative

Witnesses for the Parent: [REDACTED], Special Education Consultant (“[REDACTED]”) [REDACTED], Parent

For the Department of Education:

[REDACTED], District Representative

Witnesses for the Department of Education:

None

BACKGROUND

Parent ^[1], through their advocate, filed a Due Process Complaint (“DPC”) on or about March 22, 2023, against the New York City Department of Education (“DOE” or “District”) (Ex. A). ^[2]

In the DPC, Parent alleges that DOE failed to provide Student with a free appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years (Ex. A). Parent claims, inter alia, that DOE failed to: (1) develop appropriate individualized education programs (“IEPs”) for Student and (2) appropriately evaluate Student in all areas of suspected disability (Id.).

By way of relief, Parent seeks: (1) a revised IEP to include specialized instruction in the areas of reading, math, and writing and include Special Education Teacher Support Services (“SETSS”); (2) a bank of hours for tutoring as compensatory education services for the alleged denial of FAPE; and (3) funding for several evaluations, including psychological, educational, speech language, and social history evaluations (Ex. A). ^[3]

As more fully discussed below, I find that DOE denied Student a FAPE for the 2021-2022 and 2022-2023 school years and that Parent is entitled to relief, as modified below.

PROCEDURAL HISTORY

On March 22, 2023, Parent filed a DPC. On March 23, 2023, I was appointed to serve as the Impartial Hearing Officer (“IHO”) for this case. A Settlement and a Pre-Hearing Conference (“PHC”) were held on April 7, 2023.^[4] On April 20, 2023, the parties appeared for a Status Conference. On April 26, 2023, I issued an Interim Statement of Agreement and Order ordering DOE to conduct a psychoeducational evaluation, social history evaluation and speech-language evaluation within 21 days of the date of the Order and to provide Parent with a copy of each within five days of receiving the evaluations (IHO Ex. 1). On May 19, 2023, the Parties appeared for another Status Conference and advised me that Student had not yet been evaluated. Parent Representative indicated that Parent wanted to proceed with the Due Process Hearing (“DPH”) and had enough information and evidence without the evaluative data (Status Conference Tr. at 7). On May 31, 2023, a Due Process Hearing was held. The compliance date in this matter is currently July 17, 2023. A list of exhibits admitted into evidence is attached hereto.

On May 31, 2023, both parties appeared for a virtual DPH via WebEx. DOE did not offer any documentary evidence or seek to introduce witness testimony (Tr. at 9). DOE conceded it had failed to offer Student a FAPE for the 2021-2022 and 2022-2023 school years (Tr. at 9), waived an opening statement (Tr. at 20), and gave a closing statement (Tr. at 69-73). Parent Representative offered 14 exhibits into evidence without objection (Tr. at 10-15) and gave an opening statement (Tr. at 16-20). The undersigned admitted three additional exhibits into the record (Tr. at 7, 77). Parent presented one witness, the Special Education Consultant (“[REDACTED]”) by direct affidavit testimony and DOE cross-examined the witness. Parent Representative did not call Parent, although they were listed as a witness. I asked Parent a few questions, DOE asked one question on cross-examination and Parent Representative asked a few questions on redirect (Tr. at 73-83).

Although only portions of the evidence are referenced herein, I reviewed the testimony and documents in full.

FINDINGS OF FACT AND DECISION

I make the following findings of fact and determinations.

Student is a seven-year-old student who is classified by the DOE’s Committee on Special Education (“CSE”) as a student with a speech or language impairment (Ex. P-D-1; P-F-1; Tr. at 16). This classification is not in dispute.

On April 14, 2021, the CSE convened and developed an IEP for Student which recommended Speech Language Therapy (“SLT”), individual service, two sessions per week, thirty minutes per session (Ex. P-D-8). The IEP contained three Speech Language annual goals (Ex. P-D). On April 14, 2021, DOE sent a Prior Written Notice (“PWN”) which recommended a general education curriculum with SLT (Ex. P-C). At the time of the April 2021 IEP, Student was in kindergarten and functioning at a kindergarten level in reading and math and below grade level in writing (Ex. P-B-6; Ex. P-D).

On April 4, 2022, the CSE convened again and developed another IEP for Student which also only recommended SLT, but now recommended individual service of SLT, once per week, for thirty minutes, and group service of SLT, with a group of three, once per week, for thirty minutes (Ex. P-F-7). Parent expressed concerns about Student’s ability to comprehend text independently (Ex. P-F-2). The CSE developed two Speech Language annual goals (Ex. P-F). On April 5, 2022, the DOE sent a PWN for individual and group SLT as recommended in the IEP (Ex. P-E-1). At the time of the April 2022 CSE meeting, Student was in first grade and functioning at a first-grade level in reading and math and below grade level in writing (Ex. P-B-6; Ex. P-F). The IEP only contained two Speech Language annual goals (Ex. P-F).

On March 22, 2023, the CSE convened and developed an IEP for Student (Ex. P-H-20) who was in the second grade. Parent participated in that meeting (Tr. at 61). Student was functioning at a kindergarten level in reading and a first-grade level in math (Ex. P-H-20). Student regressed in reading and made no progress in math (Ex. P-B-7). Parent expressed concerns relating to reading. Student receives “support at home when completing homework” but requires additional support in the school setting (Ex. P-H-4). Parent also indicated that Student has difficulty maintaining focus, has a short attention span, and is easily distracted and distracts other students (Id.). In developing this IEP, the CSE relied on two prior IEPs, a March 23, 2023 Speech and Language Progress Report and a March 8, 2023 Teacher report (Ex. P-G-2).

The CSE team developed a total of eight goals for Student: two Speech Language, four writing and reading, and two math goals (Ex. P-H-7-13). The CSE recommended Integrated CoTeaching Services (“ICT”), SLT related services, Special Education Teacher Support Services (“SETSS”) and compensatory SETSS because “student require[s] additional services to address lost skills and/or lack of expected progress due to the periods of remote and blended learning beginning in March 2020” (Ex. P-H-16, 20-22; Ex. P-G-1). The CSE recommended compensatory SETSS for math, 10 group sessions, 45 minutes per session and for ELA, 10 group sessions, 45 minutes per session (Ex. P-H-16; Ex. P-G-1). The projected compensatory SETSS services were for a two-month period, April 20, 2023 through June 23, 2023 (Id.).

Parent testified that Student is not receiving the compensatory SETSS services outlined in the April 2023 IEP, is only receiving SLT (Tr. at 63), and confirmed that Student is in the process of being evaluated (Tr. at 64).

In terms of a remedy, Parent requested a total of 1344 5 compensatory education hours, broken down as follows:

Reading, word recognition (decoding), eight hours per month, for three years (288 hours)

Reading, reading comprehension, eight hours per month, for three years (288 hours)

Math, math calculations, eight hours per month, for two years (192 hours)

5

I find that Parent’s actual requested remedy is 1329 hours. Parent Representative agreed that the compensatory hours in math and ELA provided in Student’s March 2023 IEP should have been included in Parent’s overall calculations (Tr. at 76). The CSE recommended 10 sessions, 45 minutes per session, of math and 10 sessions, 45 minutes per session, of ELA, for a total of 15 compensatory hours, not 20 hours as indicated during the DPH (Ex. P-H-16; Tr. at 76). Therefore, Parent’s total requested amount of 1344 is reduced by 15 hours, for a total of 1329 hours.

Math, word problems, eight hours per month, for two years (192 hours)

Writing, sentence writing, eight hours per month, for two years (192 hours)

Writing, spelling, eight hours per month, for two years (192 hours) (Tr. at 27; Ex. P-B-7-8).

Neither Parent nor [REDACTED] has a tutor or program to implement the requested compensatory education services (Tr. at 27-28, 67).

JURISDICTION

This decision is 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 STANDARDS AND FRAMEWORK

BURDEN OF PROOF

Except in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing. See Education Law § 4404(1)(c); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012).

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. See 20 U.S.C. § 1400 (d)(1)(A). 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. See 20 U.S.C. § 1401(9). 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.” Endrew 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.” 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. See 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.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in doing so. 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.

ANALYSIS

FAILURE TO PROVIDE A 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. 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). In this case, DOE has not met its burden. DOE did not present a case, or offer any witness testimony, or any evidentiary documents, and conceded that it failed to provide Student with a FAPE for the 2021-2022 and 2022-2023 school years.

Based on DOE’s concession and the hearing record, I find that DOE failed to meet its burden at hearing that it provided Student with a FAPE for the 2021-2022 and 2022-2023 school years. As a result, the only remaining question is what relief, if any, is appropriate. As explained below, I find that Student is entitled to an award of compensatory education in the amount of 520 hours.

RELIEF REQUESTED

A. ANALYSIS OF RELIEF

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); Carter, 510 U.S. at 15-16. 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), citing Carter, 510 U.S. at 15-16. 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.

Compensatory education is a form of relief available when there has been a denial of a FAPE. See E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014); P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (“[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”). 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). 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 ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” Reid, 401 F.3d at 522 (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” Reid, 401 F.3d at 518.

There are generally two approaches to fashioning a compensatory education award, viz, 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 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, factspecific 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 a 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 (internal citations omitted).

In New York, when there is a lack of a FAPE and a parent or guardian seeks a compensation award, the burden lies with that district to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.” Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); East Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524.

Even where DOE fails to offer its “position regarding the appropriate compensatory education remedy . . . an outright default judgment awarding compensatory education . . . and all of the relief requested without question . . . is a disfavored outcome[,] 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[.]” Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005)).

Here, although DOE conceded a denial of FAPE for two school years and failed to present any evidence regarding an appropriate remedy, I am not persuaded that the appropriate remedy for Student is 1329 compensatory hours of tutoring. For the reasons outlined below, I find that a modified compensatory education award in the amount of 520 hours is warranted.

B. COMPENSATORY TUTORING

While I do not find that DOE presented any evidence or viable argument for appropriate relief, I am also not persuaded that Parent’s requested relief is appropriate or supported by the evidence. I find that when scrutinized, the requested award would be overwhelming in quantity and burdensome on Student. See M.M. v. NYC Dep’t of Educ., 2017 WL 1194685 at *8 (“services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity.”) When asked about the total amount of compensatory hours, [REDACTED] agreed that there are a lot of hours (Tr. at 36-38). Parent testified that Student gets home from school at 2:00 p.m., has no after school activities, and can receive tutoring three hours a day, Monday through Thursday, and another three or four hours on Saturday, for a total of 15 to 16 hours of one-on-one tutoring per week (Tr. at 66-67). I find that that this amount of tutoring for a seven-year-old may be overwhelming and potentially counterproductive for Student.

Parent’s recommended award assumes that Student would have progressed at least one academic year, every calendar year, in reading, writing and math had they been provided with a FAPE and that Student would be functioning at a third-grade level in June 2023, at the end of second grade but for the denial of a FAPE (Tr. at 25-26; 38-40; 44-45; Ex. P-B-7). Given the lack of recent evaluative data, I find no support in the record establishing that this Student would be operating at a third-grade level in all areas of deficiencies at the end of second grade. Rather, as explained, the limited evidence supports a finding that Student would have been functioning at a second-grade level in June 2023. In fact, during closing arguments, Parent Representative confirmed this calculation and stated that Student needs two (not three) years to make up for Student’s regression in reading (Tr. at 80-81).

[REDACTED] never formally evaluated Student before fashioning the requested remedy and relied only on Student’s evaluations from 2019 and 2020, IEPs and a report card, and [REDACTED]’s two meetings with Student and Parent. [REDACTED] testified that they “informally” evaluated Student and did not include any of the information in their report (Ex. PB-6-8; Tr. at 29-31). [REDACTED]’s recommended compensatory award is based on finding that Student’s rate of progress is one year for every academic year. [REDACTED] testified that progressing one academic grade a year is “typical expectation for, for a student to make at least one year’s progress within the school year” (Tr. at 25). Moreover, “one year is typical progress for, for a student with or without a disability (Id.). I find evidence in the record to support this rate of progress specifically for Student. Comparing Student’s April 2021 to April 2022 IEPs, the uncontroverted evidence establishes that Student did progress from kindergarten to first grade in reading and math during this one-year period (Ex. P-B-6).^[6] Moreover, Parent Representative agreed that the progression from April 2021 to April 2022 in reading and math from April 2021 to April 2022 was appropriate (Tr. at 80-81) ^[7]. I agree with Parent Representative and find that Student is not entitled to compensatory education in reading for that period. Based on the same rationale, I find that Student is not entitled to compensatory education in math for that period.

With respect to writing, Student’s progression is less clear as there is no evidence regarding Student’s actual level of performance in writing except that the April 2022 IEP noted that based on assessments, Student’s writing was below grade level (Ex. P-B-6).

The minimal evaluative data suggests that Student did not progress at the same rate from April 2022 to March 2023. According to the IEPs, Student was functioning at a kindergarten level in reading and a first-grade level in math in March 2023 (Ex. P-H-20). I find that Student made no progress in math and regressed in reading. Student’s Report Card showed that Student was functioning “below standard” in most areas (Ex. P-I-1), with some level of progress from the first to the second marking period (Ex. P-I-1). In ELA, Teacher commented that “student is approaching grade level. However, [Student] is still struggling with reading comprehension and writing” (Ex. P-I-1). With respect to reading, Student did not show improvement from one reporting period to the next, whereas Student’s writing skills and math skills improved (Id.).

[REDACTED]’s calculations are also based on an assumption that Student should be operating at a third-grade level at the end of second grade based on the premise that Student “would have progressed one grade level each year, from kindergarten to third grade by June 2023 in all three academic areas” (Ex. P-B-7). Parent calculated the award as follows: with respect to reading, Student is expected to be functioning at a third grade level, since Student is entering the third grade, but is currently at a kindergarten level and therefore, has a three-year deficit (Ex. P-B-7). Parent included two separate reading components, word recognition and reading comprehension. I do not have sufficient evidence in the record to warrant two separate awards for reading. With respect to math, Student is on a 1st grade level and therefore has a two-year deficit. Similarly, Parent included a request for compensatory hours for math calculation and another for math word problems. I do not have information sufficient to warrant compensatory hours for both math word problems and math calculations. Finally, as to writing, [REDACTED] calculated Student’s writing deficit to be two years (Id.). Parent includes two components to a writing award, one for sentence writing and one for spelling. Without specific evidence to warrant specific hours for those two components, I find that differentiating between sentence writing and spelling is not appropriate. Based on [REDACTED]’s calculations of Student’s deficits, Student needs 16 hours of tutoring per month for three years in reading, 16 hours of tutoring per month in math for two years, and 16 hours per month of tutoring in writing for two years, for a total compensatory education award of 1344 hours (Ex. P-B-8; Tr. at 27). Relying on [REDACTED]’s testimony that Student “would have progressed one grade level each year” (Ex. P-B-7), Student, who was in the second grade in March 2023, should be functioning at a second, not third, grade level at the time of Student’s March 2023 IEP.

The award should seek to place a student in the position they would have been in had the district complied with its obligations under the IDEA. See P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). The purpose of compensatory education is not to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in [their] areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student’s ability to make progress.” See Application of the Board of Ed. of the S.C.S.D, Appeal No. 21-065. [REDACTED] testified that “[Student] is still not on grade level … the fact that they was [sic] aware that [Student] was not on grade level and didn’t do anything to address it speaks to the inappropriateness of the IEP” (Tr. at 45). Although Parent’s wish to ensure their Student is performing on grade level is understandable, an award of compensatory education is aimed only to put a child in the position they would have been in but for the denial of FAPE. See Reid, 401 F.3d at 518.

In consideration of all the factors including Student’s progress in two academic areas from April 2021 to April 2022, Parent’s concern about Student’s reading ability, Student’s young age, and DOE’s failure to provide any writing and math goals in the 2021 and 2022 IEPs, I find that Student is entitled to a total of 520 hours of one-on-one tutoring to make up for past deficiencies. I rely on Parent’s assessment that Student should have progressed one academic year for every school year. Parent Representative agreed that from April 2021 to April 2022, Student made appropriate progress in math and reading, and at that time Student was functioning at a first-grade level. Based on this reasoning, in April 2023, Student should have been functioning at a secondgrade level, in reading and math. That was not the case. Student was only functioning at a firstgrade level in math and a kindergarten level in reading. Therefore, I find that Student is entitled to two hours per week of tutoring in reading, and one hour per week of tutoring in math, for two calendar years, which equates to 104 weeks ^[8], for a total of 312 compensatory tutoring hours. With respect to writing and based on [REDACTED]’s testimony that Student should have progressed one academic grade per year and the limited evidence that Student is below grade level in March 2023, I award two hours per week of tutoring in writing for two calendar years, for a total of 208 compensatory tutoring hours in writing. The total compensatory award of 520 hours is in addition to the 15 compensatory hours provided in the March 2023 IEP.

After a full review of the record, the undersigned finds 520 compensatory hours of one-on-one tutoring reasonable to make up for Student’s past deficiencies.

OTHER REQUESTED REMEDY:

Parent also requested that I order SETSS in math to be included in Student’s March 2023 IEP. DOE Representative argued that I do not have jurisdiction to issue such relief. Regardless of whether I am authorized to direct the CSE to amend the IEP to include SETSS in math, given the lack of updated evaluative data, I am not inclined to order that relief. However, I will order the CSE to reconvene to consider this FOFD and the updated evaluations that were ordered pursuant to my April 26, 2023 Interim Statement of Agreement and Order and amend the IEP, if warranted, based on the new evaluative data.

I have reviewed Parent’s remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed with prejudice.

ORDERS

IT IS HEREBY

ORDERED THAT within 35 days of receiving Student’s evaluations as ordered pursuant to my April 26, 2023 Interim Statement of Agreement and Order, the CSE shall convene and consider all of Student’s evaluations and any other relevant information, including this FOFD, to determine whether Student requires any amended IEP and/or additional special education services; and it is further

ORDERED THAT DOE shall fund a bank of 104 hours of compensatory educational relief to be provided to Student, as one-on-one tutoring for math, by a qualified private provider or providers of Parent’s choosing at a reasonable market rate; and it is further

ORDERED THAT DOE shall fund a bank of 208 hours of compensatory educational relief to be provided to Student, as one-on-one tutoring for writing, by a qualified private provider or providers of Parent’s choosing at a reasonable market rate; and it is further

ORDERED THAT DOE shall fund a bank of 208 hours of compensatory educational relief to be provided to Student, as one-on-one tutoring for reading, by a qualified private provider or providers of Parent’s choosing at a reasonable market rate; and it is further

ORDERED THAT the bank of compensatory hours should be provided outside of school hours and may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations. The DOE shall issue payment directly to the provider(s) within thirty-five (35) days of submission of invoices for services rendered; and it is further

ORDERED THAT the bank of compensatory hours shall expire within two years of the date of this Order.

DATED: July 14, 2023 SO ORDERED

Patricia Le Goff, 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.

APPENDIX A-REDACTION IDENTIFICATION PAGE

[REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parent [REDACTED] Parent Representative [REDACTED] District Representative [REDACTED] Special Education Consultant

(“[REDACTED]”)

APPENDIX B- DOCUMENTATION ENTERED INTO THE RECORD

DISTRICT EXHIBITS

None

PARENT EXHIBITS

A. DUE PROCESS HEARING 2/22/2023 6 pages

B. AFFIDAVIT OF [REDACTED] 5/22/2023 9 pages

C. PRIOR WRITTEN NOTICE 4/14/2021 9 pages

D. IEP 4/29/2021 14 pages

E. PRIOR WRITTEN NOTICE 4/5/2022 9 pages

F. IEP 4/14/2022 13 pages

G. PRIOR WRITTEN NOTICE 3/31/2023 4 pages

H. IEP 4/6/2023 22 pages

I. REPORT CARD 22-23 SY 2 pages

J. EDUCATIONAL EVALUATION 1/17/2019 3 pages

K. PSYCHOLOGICAL EVALUATION 1/23/2019 4 pages

L. SPEECH/LANGUAGE EVALUATION 1/31/2019 4 pages

M. SOCIAL HISTORY 1/17/2019 2 pages

N. RESUME OF [REDACTED] N/A 3 pages

IHO EXHIBITS

1. INTERIM STATEMENT OF AGREEMENT AND 4/26/2023 2 pages DOE

ORDER

2. SPEECH AND LANGUAGE PROGRESS REPORT N/A 2

3. TEACHER REPORT 3/8/2023 7

Footnotes

[1] No personal identifying information is contained within the body of this Findings of Fact and Decision (“FOFD”). For personal identifying information, please refer to the attached appendix. Further, this FOFD contains no references to the gender binary. The pronoun “they” is used as needed.

[2] References to the Exhibits from the Due Process Hearing are denoted (“Ex.”).

[3] On April 26, 2023, I issued an Interim Statement of Agreement and Order regarding the requested evaluations and Parent withdrew their request for those evaluations (Tr. at 6-7; IHO Ex. 1).

[4] Settlement conferences are conducted by an OATH Settlement Officer or an OATH IHO not assigned to the case whose purpose is to aid the parties in exploring and facilitating a resolution to the DPC. The content of the conferences is confidential, and the parties are directed to attend with knowledge of the dispute and settlement authority should there be an interest in resolution. Settlement Conferences are not recorded and are not part of the record.

[6] When specifically asked about this progress, [REDACTED] testified that Student should have made more than one year’s worth of progress, stating that “I’ve seen students make up to three years’ worth of progress with an average or slightly below average IQ or cognitive level. So, that’s just the, the baseline expected level of growth is at least one year” (Tr. at 26). Although SEC concluded that Student should have made more progress in those two areas during that period, I find there is no evidence to support that conclusion.

[7] In closing argument, Parent Representative agreed that compensatory education was not needed for reading for one year and that Student would need compensatory education for two years to make up for the regression that occurred from 2022 to 2023 (Tr. at 80-81).

[8] Although Student is a 10-month Student, I am calculating an award based on the calendar year as Parent fashioned their proposed remedy in that way and I find no basis to disturb that analysis.