New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 598979 - NYC: 247845

FINDINGS OF FACT AND DECISION

Case Number: 247845

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

Date of Birth: [REDACTED]

School District: NYC DOE

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

Request Date/Date Complaint Filed: 4/28/2023

Date(s) of Hearing: 7/7/2023

Actual Record Closed Date: 8/10/2023

Date of Decision: 8/11/2023 Time Sensitive No Hearing Officer: Daniel M. Hochbaum

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”), the New York Education Law, and Section 504 of the Rehabilitation Act of 1973. This case concerns Student, a [REDACTED]-year-old 3rd grader who attended an NYC DOE Public School. A:1. In the Parent’s Due Process Complaint (“DPC”), the Parent alleged that the Department of Education (“DOE”) failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 and 2022-2023 school years. Ex. A:16-17.

The Parent requests that I order the DOE to: (1) fund an “Applied Behavioral Analysis” (“ABA”) evaluation of the Student, (2) provide 715 hours of compensatory tutoring at the current rate of a provider chosen by the Parent, (3) reimburse the Parent $10,985 for monies paid to a tutoring provider, (4) reimburse the Parent in the amount of $3,800 for cost of a private evaluation, and (5) award any other relief I deem appropriate. IHO Ex. II:28.

As discussed below, the DOE conceded that it denied the Student a FAPE for the 2021-2022 and 2022-2023 school years. For the reasons stated below, I deny the Parent’s request for an ABA evaluation, and I award the Parent 849 hours of compensatory tutoring (including reimbursement for services already obtained) and a compensatory evaluation in the amount of $3,800.

PROCEDURAL HISTORY

The Parent filed this case on 4/28/2023. Ex. A:1. The DOE appointed me to hear this case on 5/2/2023. The DOE did not file a response to the DPC as required by law. 34 C.F.R. § 300.508(e).

I conducted a Pre-Hearing Conference (“PHC”) with the Parties on 6/6/2023. PHC Tr. 4. At the PHC, the Parties reported that they had reached a partial settlement regarding multiple elements of the requested relief. PHC Tr. 6-11. As such, the Parties reported that the only issues and relief that remained for me to hear were those outlined above. PHC Tr. 6-11.

I held a hearing on 7/7/2023. Tr. 5. It was a closed hearing. Parent’s counsel represented the Parent. Tr. 5. DOE counsel represented the DOE. Tr. 6.

During the hearing, the DOE counsel waived his opening statement, but stated that the DOE was “not contesting FAPE” but rather had questions for the Parent’s witnesses about the relief. Tr. 19. The DOE did not enter any exhibits into evidence. Tr. 12. The DOE did not call any witnesses to testify. Tr.

16. The DOE submitted a written closing brief on 7/28/2023. IHO Ex. I.

The Parent’s attorney delivered an opening statement in which she argued that the DOE denied the Student a FAPE and that all the relief would be supported by the evidence. Tr. 20-24. The Parent entered into evidence exhibits A-T.^[1] Tr. 15. The Parent’s counsel submitted two affidavits containing the testimony of the Parent and the Director at the Tutoring Agency. Ex. S, T. The DOE cross examined both witnesses. Tr, 40, 61. The Parent submitted a closing brief on 8/2/2023. IHO Ex. II.

FINDINGS OF FACT

In this case, the Parties did not dispute any material fact concerning the provision of a FAPE to the Student. As such, I will provide an abbreviated recitation of the relevant facts, and I refer the reader to more complete recitations in the Parent’s DPC and affidavit.

This case concerns Student, a [REDACTED]-year-old 3rd grader who attended an NYC DOE Public School. A:1. The Student had IEPs in effect during both years at issue in this case. DOE classified the Student with an Emotional Disability in the 6/2020 IEP and a Learning Disability in the 6/2021 IEP and the 5/2022 IEP. Ex. C:1, J:1, L:1.

The Student has a variety disabilities that impact her learning. In 2/2021, the Student received an outside of school evaluation that diagnosed her with Attention Deficit Hyperactivity Disorder, combined presentation (“ADHD”); PICA; Specific Learning Disorder with Impairment in Reading: Decoding and word reading accuracy; and Language Disorder. Ex. D:25. In 10/2022, the Student received a neuropsychological evaluation that diagnosed her with an Intellectual Developmental Disorder; ADHD, Combined Type; Mixed Receptive-Expressive Language Disorder; Specific Speech Articulation Disorder; Specific Developmental Disorder of Motor Function/Dysgraphia; Specific Learning Disorder, Impairment in Reading; and Specific Learning Disorder, Impairment in Written Expression. Ex. M:11-

12. The record demonstrated that these diagnoses manifested in school, and the Student struggled over the two years with reading, writing, math, sitting still, syntax and grammar, deficient graphomotor skills and writing fluency/stamina, impulsive behaviors, and low frustration tolerance, among others. Ex. T:7, 9, 14, J:3.

As noted above, the Parent obtained testing of the Student outside of school via Private Evaluator #1 in 2/2021. Ex. D. The Parent sent that evaluation to the DOE. Ex. T:2. That testing recommended that the Student receive further testing related to autism. Ex. D:25-26, T:5.

On 4/7/2021, the Parent requested that the DOE reevaluate the Student. Ex. E:1. On 5/11/2021, the DOE provided the Parent with a consent form and agreed to conduct an Assistive Technology evaluation and a Psychoeducational evaluation. Ex. T:4. The DOE eventually conducted the Assistive Technology Evaluation and what it called a “Comprehensive Data Driven Assessment” instead of a psychoeducational evaluation. Ex. I. The Comprehensive Data Driven Assessment did not include the specific Autism testing measures that Private Evaluator #1 recommended but did include The Gilliam Autism Rating Scale – Third Edition (GARS-3). Id at 4. Based on that assessment, the DOE stated that “[r]esults indicate that [the Student] presents with a Probable level of ASD symptoms, which require minimal support in the classroom.” Id at 5.

The DOE developed an IEP for the Student on 6/4/2021 that would be in effect for the 2021-2022 school year. Ex. J:1. The IEP included 13 goals. Id at 12-25. The DOE recommended an 8:1+1 class for English Language Arts, Math, Social Studies, and Sciences. Id at 26. The DOE also recommended Counseling Services, Occupational Therapy, Speech-Language Therapy, a part-time behavior support paraprofessional, and Parent Counseling and Training. Id at 26-27. While the record did not contain complete progress reports covering the full year, the information showed that the Student met three of the goals before the year was over. Id at 12-25.

The DOE developed another IEP for the Student on 5/25/2022, for the 2022-2023 school year. Ex.

L. The IEP showed that the DOE carried over large portions of information concerning the Student’s present levels of performance from the 6/4/2021 IEP to the 5/25/2022 IEP. Ex. J:5, L:5. Similarly, the DOE carried over certain goals from one IEP to the next but reduced the expected progress for them. Compare, e.g., J:18-19 with L:19-20 and J:14 with L:15. The Student struggled during the 2022-2023 school year as reflected on her report card where her grades in Reading, Writing, and Math were all 1s (in other words, well below standards). Ex. O:1-2.

Due to the Student’s struggles, the Parent had the Student evaluated by the Tutoring Agency in 6/2022. Ex. T:26. The Parent then enrolled the Student in 1:1 tutoring services from 6/2022-11/2022 at her own expense. Ex. T:26. These services cost the Parent $10,985. Ex. Q:2. The Parent stopped the services because she was no longer able to afford them. Ex. T:26.

Additionally, on 10/15/2022, the Parent had the Student undergo a private neuropsychological evaluation by Evaluator #2. Ex. M:1. The Parent sought this evaluation because she believed that the DOE had not conducted testing before the 5/25/2022 IEP meeting to “figure out why [the Student] was not making progress and what type of services and IEP goals she needed in order to make progress.” Ex. T:19. Among other conclusions, Evaluator #2 concluded that the Student made “minimal reading progress in the last 12 months.” Ex. M:11. The cost of the evaluation was $3,800. Ex. N:1.

CONCLUSIONS OF LAW AND ANALYSIS

This case concerns the DOE’s alleged failure to provide the Student with a FAPE for two school years. Regarding the 2021-2022 school year, the Parent alleged that the DOE: (1) failed to conduct sufficient evaluations of the Student in April 2021 (which impacted the Student into the period of claims), (2) failed to draft a legally adequate Present Levels of Performance in the 6/2021 IEP, (3) failed to conduct an FBA and develop a BIP, (4), drafted IEP goals in the 6/2021 IEP that were too advanced for the Student, (5) failed to draft IEP goals in specific areas of need (including decoding CVC words, answering complex “wh” questions, and writing with correct spacing and line alignment) in the 6/2021 IEP, (6) marked five IEP goals as “not applicable during this grading period” (7) failed to provide the Student with all of her mandated related services, and (8) failed to provide the Parent with all IEP progress reports. Regarding the 2022-2023 school year, the Parent further alleged that the DOE: (9) failed to have a school psychologist present at the 5/2022 IEP meeting, (10) failed to reevaluate the Student before the 5/2022 IEP meeting despite the Student’s lack of progress, (11) drafted a Present Levels of Performance in the 5/2022 that copied large sections from a prior IEP, (12) failed to draft a legally appropriate decoding goal for the Student, (13) drafted other inappropriate goals (including goals for reading fluency, writing a four sentence paragraph, division, counseling, and speech goals), (13) failed to reconvene the IEP team when the Student failed to make progress on a goal concerning multiplication and division, (14) failed to develop a BIP for the Student, (15) failed to provide differentiated instruction for the Student, (16) failed to provide all of the Student’s related services, (17) failed to consider the Parent’s neuropsychological evaluation, and (18) failed to implement specific recommendations from the neuropsychological evaluation. Ex. A.

A. Claims under IDEA

The IDEA states that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). To provide a Student with a FAPE, a school district must develop an IEP that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. The law states that a school district offers 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. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).

A district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. The Supreme Court has indicated that “[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” See Endrew F, 137 S. Ct. at 999. 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.” Id.

In IDEA due process hearings in New York, school districts have the burden to show that they provided the Student with a FAPE. NY Educ. Law § 4404(1)(c); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010). At hearing, the DOE stated that it was not contesting FAPE, did not call any witnesses to rebut the Parent’s allegations, and did not provide any documents to show that it provided the Student a FAPE. Tr. 12, 16, 19. Therefore, I find that the DOE did not carry its burden and denied the Student a FAPE for the 2021-2022 and 2022-2023 school years.

B. Remedies under IDEA In this case, the Parent requested multiple remedies for the DOE’s failure to provide the Student with a FAPE, but the Parties resolved certain issues and claims for relief prior to the hearing. Nevertheless, the Parties did not reach an agreement regarding the following elements of relief: (1) funding for an “Applied Behavioral Analysis” evaluation of the Student, (2) provision of 715 hours of compensatory tutoring at the current rate of a provider chosen by the Parent, (3) reimbursement to the Parent of $10,985 for monies paid to a tutoring provider, and (4) reimbursement to the Parent of $3,800 for cost of a private evaluation.

I will discuss each of the Parent’s requests in the sections that follow.

i. Funding for an “Applied Behavioral Analysis” evaluation of the Student In the DPC, the Parent requested that I order the DOE to fund an ABA assessment “to be conducted by a board-certified behavior analyst or licensed behavior analyst to be conducted at the provider’s normal and customary rates.” Ex. A:17. For the reasons stated below, I find that the record does not support the Parent’s request for funding of such evaluation.

The record contained limited information about the Student and Autism. First, the Parent provided an evaluation that noted that the Student had been previously diagnosed with Autism at age 3 (Ex. D:2,

24) and that the DOE has previously classified the Student as a student with Autism (Ex. D:3). The Neuropsychological report further stated that the Student should undergo further testing to rule out Autism. Id at 24-25. In 5/2022, the DOE conducted a Comprehensive Data Driven Assessment that included testing using a tool called GARS-3. Ex. I:4. Based on that assessment, the DOE stated that “[r]esults indicate that [the Student] presents with a Probable level of ASD symptoms, which require minimal support in the classroom.” Id at 5.

Neither party presented any other information related to this request. Notably, neither party provided any documents or testimony explaining what ABA is, what an ABA assessment consists of, or what a board certified behavior analyst is (and why they are the appropriate individual to conduct such testing). Additionally, neither party presented any information about why an ABA test would be appropriate as opposed to the other testing tools that the Student’s first private evaluation recommended (the Autism Diagnostic Observation Schedule – Second Edition, the Autism Diagnostic Interview – Revised, or the Childhood Autism Rating Scale – Second Edition 2). Ex. D:25. As a result, there is no information in the record about an entire element of the Parent’s requested relief.

It is inappropriate for me to order such an ill-defined remedy. Under state law, it was the DOE’s burden to prove that an ABA evaluation was not necessary, and the DOE did not present any information whatsoever on this point. Tr. 12, 16, 19. The Parent, on the other hand, bore no burden, but introduced the Comprehensive Data Driven Assessment, which indicated that the Student’s autism required “minimal support.” Ex. I:5. As such, the balance of the (extremely limited) information in the record indicated that the Student did not need more support in this area. Id.

The Student may require further testing related to her autism, but there was not enough information in the record in this case to support an order for ABA testing. The Parent may choose to refile and present more information or request the ABA evaluation from the DOE and file a new complaint if the DOE does not grant the new testing. Separately, I must note that the Parent could have sought an Independent Educational Evaluation (“IEE”) but did not. 8 NYCRR § 200.1(z). From the complaint, it is clear that the Parent disagreed with the DOE’s Comprehensive Data Driven Assessment (and its limited autism testing). Ex. A:2. However, it was not clear from the record whether the Parent requested an IEE from the DOE, and the Parent certainly did not request an IEE as the remedy in this case. Ex. A:17.

With no record regarding what an ABA evaluation is and with the limited information in the record seeming to indicate that the Student did not need more support for autism, the request for this evaluation is denied without prejudice.

ii. 849 hours of compensatory tutoring

The Parent also requested that I order the DOE to provide 849 hours of compensatory tutoring for the denials of FAPE during the 2021-2022 and 2022-2023 school years discussed above. Ex. A:17. The Parent split this relief into reimbursement for 134 hours already provided to the Student and 715 hours to be provided in the future. IHO Ex. II:28. However, I will discuss these requests together.

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that “[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act”).

There are two potential methods of calculating the amount of compensatory services under IDEA case law. Under the quantitative approach, courts consider the period of time the Student was deprived of a FAPE and calculate compensatory services in an amount meant to make up for the period of the deprivation. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, courts consider what is necessary to remediate the Student’s educational deficits, recognizing that this may require more or less than an hour-for-hour replacement of services. Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005).

The DOE did not contest the fact that it denied the Student a FAPE, and it did not present any information as to the remedy. The DOE has the burden of production, persuasion, and proof with respect to the remedies. NY Educ. Law § 4404(1)(c) (stating that parents only have the burden to prove the appropriateness of a unilateral private school placement). Where the DOE concedes that it did not provide a FAPE, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district’s failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). “It is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to provide the student with a FAPE.” Id.

In this case, the Parent presented evidence about the compensatory relief the Student needed from a qualitative perspective. The Parent provided testimony from the Director of a tutoring agency that tested the Student, determined what skills she was missing, and provided a recommendation regarding the number of hours of tutoring that it would take the Student to learn these missing skills. Ex. S:2-3. Specifically, the tutoring agency recommended 689 hours of a verbal program (60 hours Core Reading program, 504 hours Splinter Skills, 75 hours Vocabulary/Word Attack/Spelling and 50 hours writing) and 160 tutoring hours to address 32 deficient math skills. Ex. P:1-3, S:3; Tr. 41. This totaled 849 hours, but the Student already attended 134 hours of tutoring with the agency, hence the 715 remaining hours. Ex. Q:1-3; Tr. 48.

However, when I asked the Director whether the agency based the recommendations on this Student’s specific rate of progress, she indicated that the recommendations were based on the Student’s initial evaluation at the agency, not based on data showing how quickly the Student learned using their program. Tr. 53-54. Essentially, the Director testified that they put a single data point into their system (from the initial testing) and that it recommended the number of hours of instruction the Student needed in each area. Tr. 53-54. This is not a proper method of determining a Student’s rate of progress as one would need multiple data points over time to know how quickly the Student acquires skills.

Without knowing how quickly the Student learns in each area (reading, writing, and math), I have no way of knowing whether the 849 hours the agency recommended will compensate the Student (i.e., put her back in the position she would have been in but for the deprivation of FAPE). Reid, 401 F.3d at 518. It is possible that the Student needs more hours to learn these skills, and it is also possible that the Student needs fewer than 849 hours to compensate her. Nevertheless, it is safe to assume that the Parent would not have made a request against her own interest by asking for 849 hours if the Student needed more hours to be fully compensated for the denial of FAPE.

While I am not persuaded by the Parent’s witness and how the agency arrived at the 849 hours, it was not the Parent’s burden to prove to me the number of hours the Student needed. NY Educ. Law § 4404(1)(c). Instead, it was the DOE’s burden to explain what type and level of compensatory service the Student needed to compensate her. Id. The DOE did not provide any explanation of its view or alternative number of hours the Student should receive. Tr. 12, 16, 19.

The DOE argued that the Parent’s request should be denied because (1) the Parent “has not presented sufficient evidence establishing how an award of 849 hours of 1:1 tutoring would make up for a denial of FAPE,” (2) that the tutoring agency did not take into account the Student’s starting abilities because they did not have that information, and (3) that the agency recommended hours that would be used exclusively at their agency, which made them a self-interested witness. IHO Ex. I:3-4. First, as discussed above, it was not the Parent’s burden to establish how the award would compensate the Student, and the DOE may not “fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate” to remediate the Student. Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). Second, contrary to the DOE’s assertion, the Agency did take into account the Student’s starting abilities when they specifically considered the Student’s intake evaluation. Tr. 53-54. To the extent that this was not the proper method of determining how many compensatory hours the Student needed, again, it was the DOE’s burden to address this issue and propose an alternative. NY Educ. Law § 4404(1)(c). Third, I have no issue with the Parent presenting testimony from a particular agency about how many compensatory hours the Student needed to receive in that agency’s system. If the DOE wanted to, it could have argued that the Student could be compensated with fewer hours using that same agency’s system or could have argued that the Student could have been remediated faster and with fewer hours using a different system or approach, but the DOE – who bore the burden – did not do so. As a result, I reject the DOE’s arguments.

I also find it appropriate to provide compensatory services in the form of reimbursement for services the Student already received and a bank of 715 hours for the remaining services yet to be provided. In the closing brief, the Parent’s attorney analogized the reimbursement for the compensatory services the Student already received to tuition reimbursement for a unilateral placement and analyzed the issue under a Burlington/Carter type test, but I do not believe that is the appropriate test for this scenario. IHO Ex. II:17. First and foremost, Burlington and Carter were about unilateral parental placements in private schools, and the tutoring agency is not a school. Florence Cty. Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7 (1993); School Comm. Of Burlington v. Department of Ed., 471 U.S. 359 (1985). Second, courts have considered the issue of compensatory education and developed different tests other than Burlington/Carter for deciding these cases (for example, the Reid approach). Third, because of the allocation of the burdens in New York, if New York courts were to use a Burlington/Carter approach for cases in which the Parent paid up front for the compensatory services, this would disincentivize Parents from getting their children the help they need due to the DOE’s failures as it might force Parents to prove the appropriateness of the “placement” under Prong II. The law should not be interpreted in a manner that would cause parents to delay getting their children appropriate special education supports pending the outcome of a lawsuit.

However, even if I were required to apply Burlington/Carter to the compensatory services the Parent already obtained, I do not believe state law supports placing any burden, including Prong II, on the Parent. As stated above, in due process hearings in New York, school districts have the burden of proof – including the burden of production and burden of persuasion – except that a Parent or person in Parental relationship seeking tuition reimbursement for a unilateral Parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NY Educ. Law § 4404(1)(c)). Even the New York State Education Department (“NYSED”) itself recognizes that parents only have a burden related to the appropriateness of a private school. See New York State Law, Regulations and Policy Not Required by Federal Law/Regulation/Policy March 2023, available at https://www.nysed.gov/sites/default/files/special-education/nys-608-analysis-updated-march-2023_.pdf (stating “[t]he law creates an exception for impartial hearings in which the parent seeks tuition reimbursement for a unilateral placement in a private school”) (emphasis added). Therefore, in this case, the DOE would have had to prove that the tutoring agency’s services were inappropriate, which it did not do. Tr. 12, 16, 19. On the other hand, the evidence showed that the tutoring agency provided the Student 1:1 instruction, focused on her deficit areas, and that she made progress^[2] in the program, all of which support it being appropriate. Ex. S:8-11, P:1-6. Therefore, the weight of the evidence indicated that the program was appropriate.

For the reasons stated above, the DOE has not carried its burden, and I agree that the Student is entitled to 849 hours from the tutoring agency.

iii. Reimbursement to the Parent in the amount of $3,800 for cost of a private evaluation

As discussed above, on 10/15/2022, Evaluator #2 conducted a neuropsychological evaluation of the Student. Ex. M:1. The Parent sought this evaluation because she believed that the DOE had not conducted testing before the 5/25/2022 IEP meeting to “figure out why [the Student] was not making progress and what type of services and IEP goals she needed in order to make progress.” Ex. T:19. The DOE did not dispute that the failure to evaluate the Student at that time was a denial of FAPE. Although the evaluation already occurred, I believe that the private evaluation compensated the Student for the DOE’s failure to conduct testing of the Student at that time. After all, compensatory education is a remedy designed to “make up for” a denial of a FAPE, and the neuropsychological evaluation made up for the DOE’s failure to evaluate this Student at that time. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); see also Falmouth Sch. Dep’t v. Doe, 2021 U.S. Dist. LEXIS 186907, at *31 (D. Me. Sep. 29, 2021) (holding that reimbursement for the cost of an evaluation was proper equitable relief); see also Application of a Student Suspected of Having a Disability, Appeal No. 23-026 (NY SRO 2023) (holding that reimbursement of a privately obtained evaluation was available equitable relief for the district’s failure to properly evaluate the student). As such, I am granting the Parent’s request for reimbursement for the cost of the evaluation.

C. Claims and Remedies Under Section 504

Section 504 prohibits discrimination against qualified students with a disability. 29 U.S.C. § 794(a). Section 504 states, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. § 104.33(a). Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of [] persons [with disabilities] as adequately as the needs of [] persons [without disabilities] are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. § 104.33(b).

Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. § 104.3(j)(1). However, only students who have a substantial limitation of a major life activity are entitled to a FAPE. 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. § 35.108(c)(1)(ii).

A student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504. See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

In this case, the record clearly demonstrates that the Student was an individual with a disability based on her multiple diagnoses and eligibility for an IEP. Ex. D:25, M:11-12, C:1, J:1, L:1. At a minimum, the Student has a physical or mental impairment that substantially limited her in the areas of speaking, learning, reading, concentrating, thinking, writing, and communicating. Ex. T:7, 9, 14, J:3. Additionally, the DOE admitted that it denied the Student a FAPE, which is applicable both to IDEA and

504. Tr. 19. The only issue that warrants brief discussion is the remedies.

Here, I have already granted two of the Parent’s requested remedies under IDEA and do not need to reconsider them under 504. However, with respect to the ABA evaluation, I believe that this evaluation is also not warranted under 504. The Parent has the burden of proof under 504 and, as discussed above, the Parent did not present evidence about what an ABA evaluation is, why it was necessary, and how the evaluation would ensure the provision of FAPE to the Student. As such, this relief is also denied without prejudice under Section 504.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. The DOE shall, within 35 days of this Order, assign an individual from its Impartial Hearing Order Implementation Unit (“IHOIU”) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 35 days of the date of this order. The contact person shall respond to any inquiry by the Parent (or their attorney) concerning the implementation of this order within 2 business days.

2. Within 35 days, the DOE shall reimburse the Parent $3,800 for the cost of the Neuropsychological Evaluation. The DOE shall treat Exhibit N in the hearing record as proper proof of payment for the evaluation.

3. Within 35 days, the DOE shall reimburse the Parent $10,985 for compensatory tutoring provided by the tutoring agency. The DOE shall treat Exhibit Q in the hearing record as proper proof of payment for the tutoring.

4. The DOE shall provide the Student with a bank of 715 hours of compensatory tutoring to be provided by a provider Parent’s choosing at the provider’s rate. The services shall not expire.

5. The DOE shall pay the provider(s) for the services in 4, above, within 15 days of receipt of both: a. Session notes for each session indicating the specific provider’s name, date of service, start and end time of each session, and information describing the skills taught to the Student during each session.

b. An invoice for the services provided and accompanying sworn affidavit attesting that the services billed for were provided.

6. If the Parent requests assistance finding a provider to provide the above services at any time, the DOE must locate 3 providers who are ready, willing, and able to begin providing the services to the Student, according to the terms of this order. If the Parent presents a good faith basis for rejecting the 3 providers, the DOE must locate 2 additional providers from which the Parent may choose. The DOE shall not be required to identify more than 5 providers in any given 6-month period. Nothing stated here prevents the Parent from locating and utilizing a provider of the Parent’s own choosing.

SO ORDERED.

DATED: 8/11/2023

/s Daniel M. Hochbaum

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 B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 4.28.23 (20 pages)

B. Prior Written Notice (Notice of Recommendation) 9.11.19 (4 pages)

C. Individualized Education Program 6.3.20 (29 pages)

E. Evaluator #1 Report Various 51 pages D. 2020-2021 Request for Reevaluation 4.7.21 (1 page)

F. Prior Written Notice (Notice of Recommendation) 5.11.21 (3 pages)

G. Consent for Additional Assessments 5.11.21 (2 pages)

H. Psychoeducational Evaluation Report 5.19.21 (1 page)

I. Comprehensive Data Driven Assessment 5.19.21 (5 pages)

J. Individualized Education Program 6.4.21 (34 pages)

K. Prior Written Notice (Notice of Recommendation) 6.4.21 (4 pages)

L. Individualized Education Program 5.25.22 (31 pages)

M. Neuropsychological Consultation Report 10.15.22 (19 pages)

N. Evaluator #2 Bill of Services 10.15.22 (1 page)

O. 2022-2023 Second Marking Period Report Card 2.8.23 (2 pages)

P. Tutoring Agency Evaluation Report 6.29.22 (6 pages)

Q. Tutoring Agency Financial Report 2.2.23 (3 pages)

R. Tutoring Agency Progress Report 5.3.23 (5 pages)

S. Affidavit of Director 3.31.23 (11 pages)

T. Affidavit of Parent 5.3.23 (33 pages)

DOE EXHIBITS

1. None N/A N/A

IHO EXHIBITS

I. Closing Brief of the New York City Department of Education 7/28/2023 (5 pages)

II. Petitioner’s Post Hearing Brief 8/2/2023 (30 pages)

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Footnotes

[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.

[2] While the Director from the agency did not have information at her disposal about the Student’s skills pre and post tutoring services, she testified that the Student’s scores on testing, like her 78% score in the “1000 Instant Words” program and her 80-100% range score in the “Phonics” program, represented progress. Ex. S:8-9.