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Findings of Fact and Decision Case No. 248144
FINDINGS OF FACT AND DECISION
Case Number: 248144
Student’s Name: REDCATED
Date of Birth: [REDACTED]
School District: N.Y.C. Dept. of Education
Home District: [REDACTED]
Service District: [REDACTED]
Date of Filing: 05/10/2023
Hearing Requested by: Parent
Hearing Date: 07/13/2023
Actual Record Closed Date: 07/24/2023
Date of Decision: 07/24/2023
Date of Distribution: 07/24/2023
Impartial Hearing Officer: Patricia Peña, Esq.
Findings of Fact and Decision
NAMES OF PERSONS WHO APPEARED ON 07/13/2023
For Student and Parent:
REDACTED
REDACTED
For the Department of Education:
REDACTED
Findings of Fact and Decision
INTRODUCTION AND PROCEDURAL HISTORY
On 05/10/2023, Parent, through counsel, filed a Due Process Complaint (“DPC”) against the New York City Department of Education (“DOE” or District”). alleging that DOE failed to offer Student a Free and Appropriate Public Education (“FAPE”) for the 2017-2018, 2018-2019, 2019-2020, 2020-2021-2021-2022, and 2022-2023 school years.
I was appointed as the Impartial Hearing Officer on 05/11/2023. On 06/13/2023, a Pre- Hearing conference was held wherein parties indicated that a resolution meeting was held but parties were not able to resolve any of the issues raised in the DPC.1 DOE raised statute of limitations (“SOL”) as an affirmative defense to claims arising out of the 2017-2018, 2018-2019, 2019-2020, and 2020-2021, school years (“SYs”). Parties were asked to and did submit briefs on the applicability of the statute of limitations.[2] After reviewing the parties’ brief, I had some clarifying questions and reserved decision on the motion.
A virtual due process hearing was held on 07/13/2023. REDACTED represented the District and REDACTED represented the Parent. DOE submitted exhibits 1 through 11 without objection and did not call any witnesses.3 Parent submitted exhibits A through J without objection.4 Included in Parents exhibits were affidavits from REDACTED, Director of REDACTED (“Director”), REDACTED (“Neuropsychologist”), and Parent. DOE cross examined all three witnesses. The Pre-Hearing Conference summary and order, DOE’s motion to dismiss, and Parent’s response to DOE’s motion were admitted into evidence as IHO exhibits 1 through 3 respectively.
1
IHO 1
Findings of Fact and Decision
In its opening statement, DOE reasserted its statute of limitation defense (“SOL”) for the SYs in question and stated it was resting on documents in evidence with respect to the 2021- 2022 and 2022-2023 school years.5 Parent reasserted its claims in the DPC alleging that DOE denied Student a FAPE from the 2017-2018 school year through the 2022-2023 school year.6
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
Student is a [REDACTED]-year-old child classified by DOE as a Student with Other Health Impairment.7 Student has a diagnosis of Specific Learning Disorder with impairment in reading (work recognition, inferential reading comprehension) and Attention- Deficit/Hyperactivity Disorder (“ADHD”) predominately inattentive presentation.[8] In its DPC, Parent alleges that Student’s academic struggles started at an early age. In the first grade, Student started experiencing difficulties in reading and decoding.9 Parent asserts that DOE failed Student over the years by failing to assess Student in all areas of suspected disability and by offering an inappropriate program and placement over the years.[10] The most recent IEP, dated 06/08/2022 mandates that Student be placed in an ICT class with counseling and speech and language therapy which Parent contends, is contrary to the recommendations made by the 5 Tr. 11 6 Tr. 13 7
DOE 3
Findings of Fact and Decision
Neuropsychologist and prompting Parent to file the instant action.[11] Parent seeks a declaratory finding that:
1) Student’s placement in an ICT class in a DOE public school is inappropriate and Student requires placement at an appropriate independent or nonpublic school.
2) Reimbursement in the amount of $3,900 for the Private Neuropsychological evaluation conducted by the Neuropsychologist.
3) Funding for 600 hours of one-to-one multisensory academic tutoring and executive functioning coaching by EBL Coaching at a rate of $150 per hour.[12]
ISSUE
The issues for determination are whether Parent’s claims arising out of the SYs in question are barred by the statute of limitations and whether DOE denied Student a FAPE by failing to properly assess Student and failing to offer a program that adequately met Student’s needs.
In light of the foregoing and as more fully discussed below, I find that (1) Parent claims arising out of the SYs in question are barred by the SOL and that (2) DOE denied Student a FAPE for the 2021-2022 and 2023 school years.
Although only portions of the evidence are referenced herein, I reviewed the testimony and documents in full.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
Findings of Fact and Decision
DOE offered several documents into evidence. The Present Levels of Performance and Individual Needs section of the 06/08/2022 IEP references the 2022 Neuropsychological and Educational report and states that Student’s overall tests scores fell within the average range of intellectual functioning.13 The IEP notes challenges in the area of executive functioning, attention control, working memory, initiation, and task planning and organization, and self-regulation with regard to flexibility.14 The IEP further notes that Student is “significantly below average with respect to his academic skills development. This includes word recognition and very low reading fluency”15 Further, “[Student’s] teacher observe mildly hyperactivity and impulsive behaviors at school, with a significant degree of inflexibility.”[16] In math, “the class is broken down into two groups; which has helped [Student] focus on his classwork and participation in discourse. [Student] does not struggle with the math content in the classroom and demonstrates an aptitude for math.”[17] In the area of ELA and Writing, Student made great improvements. “He is self-motivated to complete work and asks questions about his grades. [Student] has shown understanding in fiction and non-fiction texts; central idea, citing evidence, and identifying supporting evidence. [Student] needs reminders to complete parts of the process during instructional time, however, this is less frequent than at the beginning of the year. During group work, which has been the majority of our ELA class, [Student] chooses to not work with classmates, so it would be great to see [Student] work with classmates in terms of academics. It would also be great to hear more of [Student] voice and opinion in our classroom.”18 Student was functioning on a 7th grade
13
DOE 3-1
14 Id. 15 Id. Findings of Fact and Decision
level in reading and a 6th grade level in math.[19] DOE recommended an ICT class for ELA, Math, Social Studies, and Science and recommended counseling services and Speech and Language therapy.[20]
The 06/14/2021 IEP refences the January 2019 Neuropsychological evaluation obtained by Parent. The Present Levels of Performance and Individual Needs section of the IEP states that Student’s “neurocognitive function (i.e., executive functioning) was also assessed on computer administered tasks from the National Institute of Health Cognition
Toolbox. Results indicate variable performance on executive functioning measures.
[Student] demonstrated average processing speed, cognitive flexibility and attention. In contrast, his working memory was below expected for his age… [Student’s] current level of academic achievement was assessed using subtests of the WIAT-111 and TOWRE-2. In math, [Student] demonstrated appropriately developed skills in completing calculations and applied math problem solving. In reading, [Student] demonstrated variable performance.
His sight-word recognition, decoding and comprehension were close to Average, however, his reading fluency was significantly below expectations for his age. Deficits in reading fluency can make gaining meaning from text significantly more difficult when decoding is effortful and slow, fewer cognitive resources are available for understanding what is read.
Similarly, on measures of phonological processing (CTOPP-2), which are the foundation of reading performance, [Student] demonstrated vulnerability across measures of phonological awareness, phonological memory and rapid naming. This suggests that [Student] requires remediation using a phonologically based approach to address underlying deficits in these processes which are integral to reading. Considering that [Student] reading performance is
Findings of Fact and Decision
significantly lower than would be expected accounting for his age, intelligence, history of remediation and education, he meets DSM-5 criteria for a diagnosis of Specific Learning Disorder, with Impairment in Reading.”21 DOE recommended the same program and services recommended in the 2022 IEP with the exception of counseling which was not recommended.[22] Student was functioning on a 4th grade level in reading and on a 5th grade level for math.[23]
For Parent’s case in chief, Parent testified that Student’s struggles commenced in kindergarten. Student was evaluated in the summer of 2017, but the evaluation did not include a specific diagnosis.[24] She testified that she did not become aware of her rights until she met her attorney around the time of the January 2019 evaluation.[25] Regarding the 600 hours of compensatory relief sought, Parent testified that she does not yet know the details of when the hours would be used, whether online, after school or on weekends since she works full time and would have to move some things around.[26]
The Director testified that based on her review of Student’s records, Student has significant deficits with his “fundamental academic skills” and is functioning below grade level.[27] Student was finishing the 7th grade and functioning at a low 6th grade level for reading, writing, spelling and writing and at low 7th grade level in math.28 Based on her 05/17/2023 assessment, Student requires “intensive one on one multisensory tutoring using the Orton-Gillingham approach to develop his reading and spelling skills. It is also clear that he requires structured, multi-sensory
21
DOE 1-5
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instruction to build his written language, mathematics, and reading comprehension skills.” 29 In order to build Student’s academic skills, she recommends Student receive 600 hours of one-to-one multisensory instruction to make up for the denial of FAPE since the third grade.[30] The Director testified that the 600 hours of tutoring is based on her personal evaluation, review of prior IEPs and prior work with students with similar learning profiles.31 She estimates that the hours would be used over the course of 2 years at a frequency of six to eight hours per week. 32 The sessions would focus on all core skill areas, decoding, spelling, reading, comprehension, writing and math and once the school year starts, Student’s school work would be integrated into the sessions.33
Director testified that her company can provide the recommended services at a rate of $150 per hour.34 The Director testified that most of the instructors hold state certifications and estimated that approximately 65% of them are certified in special education.35 Company provides training for the instructors on a per student basis. The Director testified that once a match is made, she meets with the tutor and train on specific methods and materials that are unique to the student.36
The Neuropsychologist conducted an evaluation of Student in April and May of 2022. He testified that Student’s overall intellectual functioning fell within the average range. He presented with challenges with attention and areas of executive functioning, self-regulation, and in reading fell “significantly” below average in word recognition and fluency.37 The Neuropsychologist reviewed Student’s IEPs since 2017 and opined that the ICT placement since
29 Id. Findings of Fact and Decision
the 4th grade along with the related services offered were not appropriate for Student.38Further,
“[d]ue to Student’s complex profile and language based learning disability, he requires placement in a special education setting with a low student to teacher ratio that is specifically designed for students with language based learning disabilities and attention difficulties. An ICT classroom in both too large for [Student] and based on my experiences observing ICT classrooms in DOE schools, incapable of providing him with the type of specialized instruction for students with language-based learning disabilities that he requires.”39 He agreed with the Director’s recommendations that Student receive 600 hours of intensive one on one multisensory tutoring using Orthon-Gillingham as well as similar multi-sensory instruction to build Student’s writing, math, and reading skills.40
Statute of Limitations
A DPC must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the complaint.[20] U.S.C. § 1415(b)(6)(B); 34 C.F.R. § 300.507(a)(7). New York State has adopted a timeline and limitations period that is consistent with the IDEA. 8 NYCRR §
200.5(j)(1(i).
In accordance with the IDEA and New York law, a claim begins to accrue when a party in question knew or should have known of the alleged harm that forms the basis of the complaint
(referred to as the “KOSHK date”) and the complaint must be filed within two years of that date.41 Calculating the accrual date and determining whether a particular claim is time barred is a
38 Id. at J002 39 Parent’s J003 40 Id. at J003 and J004 41 Findings of Fact and Decision fact specific inquiry.42
Moreover, the IDEA creates two tolling exceptions to the two-year SOL period. A claim will not be considered if “the parent was prevented from requesting the hearing due to (i) specific misrepresentations by the local education agency that it had resolved the problem forming the basis of the complaint or (ii) the local educational agency’s withholding of information from the parent “that is required to be provided under the IDEA 20 U.S.C § 1415(f)(3)(D).”43
The IDEA’s SOL is viewed as an affirmative defense in New York.44 Accordingly, the DOE has the burden of proving that the SOL barred plaintiff’s claims.45 As an affirmative defense, the SOL is considered waived if not raised at the initial administrative proceeding.46
For a defendant to avail itself of this affirmative defense, factual development beyond those plead is typically required.47
Discussion
DOE contends that Parent’s claims accrued 2 years from the date for each of the IEP meetings for the SYs in question and that considering the relevant tolling period for COVID,
Parent’s claims accrued on 09/20/2019, 01/26/2021, 12/25/2021, and 11/4/2022. At the latest,
DOE contends Parent knew or should have known of her rights upon completion of the “[REDACTED]” evaluation on January 10, 201948 which Parent relied on to file the DPC which means that considering the tolling for COVID, SOL expired on 8/27/2021. Parent’s counsel on the other hand contends that Parent did not understand her due process rights during the SYs in
42 K.H. v. New York City Dep't of Educ., 2014 WL 3866430 (E.D.N.Y. 2014 43 K.H., supra. 44 M.G. v. NYC Dept of Educ., 62 IDELR 195 (S.D.N.Y. 2014), citing Somoza, supra. 45 Id. 46 Id. 47 Wong v. State Department of Education, 71 IDELR 128 (D. Conn. 2018), citing In re S. African Apartheid Litig., 617 F. Supp 2d 228, 287 (E.D.N.Y. 2009). 48 DOE’s brief states a completion date o March 12, 2019, but the report was completed on January 10, 2019. The January 10, 2019, date will be used as the date of the [REDACTED] evaluation.
Findings of Fact and Decision
question. Parent asserts that one of the exceptions to the statute of limitation applies in this case.
Parent contends that DOE withheld information from Parent by failing to provide Parent with a copy of the Procedural Safeguard Notice (“PSN”) as required by law.49
The regulations clearly state that PSN “must be sent to the parents of a student with a disability, at a minimum one time per year...”50 The evidence submitted by DOE indicates that Parent received PSN in July 2017. At the hearing, DOE took the position that as early as 2017, Parent was notified of her rights.51 The exception to SOL based on the District’s withholding of information applies if a parent did not know his/her rights because the school district did not provide parent with PSN.52 At the hearing, Parent’s counsel conceded that Parent learned of her rights in January 2019.53 Therefore, using the 01/10/21 date as the KOSHK date, I find that Parent’s under the SYs in question are barred by the SOL.
Parent’s counsel contended that given the relief sought whether some of the SYs are barred by the SOL, does not matter much since the recommendations are based on Student’s needs as they stand today.54 I agree that in this instance whether some of the school years are barred by the SOL is of little consequence to the ultimate award. Based on the foregoing, I find that Parent’s claims arising out of the 2017-2018, 2018-2019, 2019-2020, and 2020-20221 are barred by SOL and therefore dismissed with prejudice.
FAPE
The next inquiry is whether DOE denied Student a FAPE for the 2021-2022 and 2022- 2023 school years.
49 IHO 3, Page 3 50
8 N.Y.C.R.R. §200.5(f)(3)
51 Tr. 50 52 See N.J. v. New York City Dep’t of Educ., 2021 U.S. Dist. Lexis 47980 (March 15, 2021) [citing C.M., 2017 U.S. Dist. LEXIS 94546, 2017 WL 2656253, at *9. 53 Tr. 57 54 Tr. 53 Findings of Fact and Decision
Legal Framework
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in a 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.55
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE.56 A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP.57 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 Student to receive educational benefits.58 In order 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.”59 School districts are not required to "maximize" the potential of students with disabilities60 but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords Student with an opportunity greater than mere 'trivial advancement'."61
55 NYS Educ. Law § 4404[1][c] 56
20 U.S.C. § 1400 [d] [1] [A]
57 34 C.F.R. § 300.13
58 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]. 59 Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]. 60 Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d at 132. 61 Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citation omitted]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d at 254; P v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
Findings of Fact and Decision
An appropriate remedy for a denial of FAPE can include an award of compensatory education.62 The purpose of a compensatory education award is to place the student in the position he/she would have been in had the district complied with its obligation under the
IDEA.63 A court may, therefore “award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”64 Further, “whereas ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.”65 A request for compensatory relief may be denied if there is not a sufficient a causal link in the record between any deprivation and Student’s current deficits.66
An award of compensatory education can be crafted following a “quantitative” approach or a “qualitative” approach. The “quantitative” approach is based on the amount of time that comprised the FAPE deprivation.67 The “qualitative” approach is based on a student’s needs and on the specific educational deficits that resulted from the FAPE deprivation.68 This approach requires a “fact-specific inquiry”69 and “[t]he ultimate award of compensatory education must be reasonably calculated to provide the educational benefits that likely would have accrued from
62 E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014) citing Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 (2d Cir. 2008). See also, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (finding that the “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”). 63 See Newington, 546 F.ed at 123; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] 64 Doe v. East Lyme, 790 F.3d at 454 [2nd Cir. 2015] 65 Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) 66 See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C.Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that Student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir.
2018) (Parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by Student in crafting an award, regardless of the substantive appropriateness of the IEP). 67M.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]. 68 See Reid, 401 F.3d 516 69 Id. at 524 Findings of Fact and Decision special education services the school district should have supplied in the first place.”70 The Second Circuit has not adopted a preferred approach and leaves the mechanics of structuring an award to the court’s discretion.71 Irrespective of the approach taken in crafting the award, “the remedy must be ‘appropriate in light of the purpose of the Act.’”72
In New York State, when a parent seeks compensatory relief, the burden is on the 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.”73 Additionally, default judgements awarding compensatory education are disfavored. In an SRO decision, the SRO stated that “an outright default judgement awarding compensatory education- or as in this case, any and all 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.”74
Further, 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.”75
ANALYSIS
70 Id. 71 Doe v. East Lyme, 790 F.3d at 457 72 Doe. v. East Lyme, 790 F.3d at 457 citing to Burlington, 471 U.S. at 369. 73 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); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524. 74 See 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). 75 See Application of the Board of Ed. of the S.C.S.D, Appeal No. 21-065 Findings of Fact and Decision
As previously stated, the District bears the burden of providing that Student was offered a FAPE. Here, while DOE offered several documents into evidence including the IEPs for the last two school years, a review of these offers no explanation regarding the CSE’s recommendations, how the IEPs are meaningfully calculated to confer educational benefit or a rebuttal to the claim that the recommended ICT class was inappropriate to meet Student’s needs. In short, DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.”76 Therefore, I find that DOE failed to offer Student FAPE for the 2021-2022 and 2022-2023 school years.
The Relief
Parent seeks 600 hours of tutoring as compensatory relief for DOE’s denial of FAPE. For the reasons set forth below, I find that while Student is entitled to compensatory relief, the record does not support an award of 600 hours.
DOE argued that achieving grade level is not the ultimate arbiter in awarding compensatory relief, rather, whether in light of Student’s circumstances, sufficient progress has been made. DOE contends that the award sought in this instance is geared towards maximation and not to target specific deficits.77 The record established that Student presents with some academic delays in reading. In his report card, Student received a grade of 69 for the second trimester in ELA. The teacher notes that part of the reason that Student received a 69 was due to incomplete work. 78 An undated progress report shows that Student earned a mark of 91% in ELA and in the notes section references an improvement since the beginning of the semester and that Student took several
76 Endrew F., 137 S.Ct. at 1002 77 Tr. 49-50 78
DOE 8-1
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opportunities to make up missing work and/or revise assignments for a higher grade. Further, a review of the 2021 and 2022 IEPs indicates that Student made progress in this area by showing self-motivation to complete work assignments, an understanding of fiction v. nonfiction texts, and in identifying supporting evidence. Further, the Director’s recommendation of 600 hours of tutoring appears to have been partly based on the denial of FAPE since the third grade, not the length of time it would take to bring Student up to grade level. I find that 6 to 8 hours a week of tutoring is excessive, is not reflective of Student’s need considering Student’s report card grades, functioning grade level and Student’s noted issue with not completing assignments, and would amount of maximization of Student’s potential. I find that considering the record before me, 4 hours a week of tutoring is appropriate. Therefore, I am awarding a total of 320 hours of tutoring.
This is based on 4 hours a week times 40 weeks in the school year times two years.
Reimbursement for Evaluation
In addition to compensatory relief, Parent seeks reimbursement in the amount of $3,900 for the private neuropsychological evaluation recently conducted in 2022. Parent contends that DOE is obligated to evaluate Student in all areas of suspected disability every three years and did not do so. The last comprehensive evaluation was conducted in 2019. It is undisputed that the regulations require a comprehensive evaluation every 3 years and that DOE failed to thoroughly evaluate Student. Therefore, I find that Parent is entitled to reimbursement.
ORDER
NOW, in light of the foregoing, I HEREBY FIND:
(1) Parent’s claims arising out of the 2017-2018, 2018-2019, 2019-2020, and 2020-20221 are Findings of Fact and Decision dismissed with prejudice.
(2) DOE failed to provide Student with a FAPE for the 2022-2023 school year.
IT IS THEREFORE ORDERED,
(3) DOE shall reimburse Parent for the private neuropsychological evaluation conducted by the Neuropsychologist in the amount of $3,900. DOE shall reimburse Parent within 35 days of this order upon proof of payment.
(4) DOE shall fund 320 hours of one-to-one multisensory academic tutoring and executive functioning to be provided by [REDACTED] at a rate not to exceed $150 per hour.
(5) Parent will have two years from the date of this order to use the hours of compensatory relief awarded.
SO ORDERED.
Dated: 7/24/23
Patricia Peña, Esq. (signed electronically)
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, 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. Findings of Fact and Decision Case No. 246862
DISTRICT EVIDENCE
PAGES TITLE DATE PAGE
COUNT
June 2021 Individualized Education Program (IEP) 06/14/2021
1 25
2 June 2021 Prior Written Notice 06/21/2021 5
June 2022 Individualized Education Program (IEP) 06/08/2022
3 24
4 June 2022 Prior Written Notice 06/08/2022 5
5 DOE Psychoeducational Evaluation 09/18/2017 10
[REDACTED] Private 03/12/2019
7 38
Neuropsychological Evaluation
REDACTED Private Neuropsychological Evaluation 05/14/2022
8 20
9 2022-2023 School Year Report Card 2022-2023 1 10 2022-2023 School Year Teacher Reports Undated 11 11 Due Process Complaint 05/10/2023 17
PARENT EVIDENCE
EXHIBIT DATE TITLE Pages
| A | 05/10/2023 Due Process Complaint 17 |
| B | 01/10/2019 [REDACTED] Research Report 46 |
| C | 05/15/2019 Speech Language Evaluation 17 |
| D | 05/14/2022 Neuropsychological and Educational Evaluation 11 Report |
| E | 05/18/2023 Evaluation Letter from REDACTED [1] |
| F | Undated REDACTED CV 10 |
| G | Undated REDACTED Resume 3 |
| H | 07/03/2023 Affidavit of Testimony of REDACTED [3] |
| I | 07/07/2023 Affidavit of Testimony of REDACTED 6 |
| J | 07/07/2023 Affidavit of Testimony of REDACTED 4 |
IHO EXHIBITS
Exhibit Title Date Pages
2 DOE Motion to Dismiss
Footnotes
[2] See IHO 2, 3 3 Tr. 7 4 Tr. 9
[8] Parent’s A002 9 Id.
[10] Parent’s A
[11] Parent’s A015
[12] Parent withdrew request for reimbursement for private tutoring. See Tr. 13
[16] Id. at 3-2
[17] Id. at 3-3 through 3-4 18 Id.
[19] Id. at 3-22
[20] Id. at 3-17
[22] DOE 1-17
[23] DOE 1-22 – 1-23
[24] Parent’s I001
[25] Tr. 23, Parent’s I005
[26] Tr. 23-24
[27] Parent’s H002 28 Tr. 33
[30] Parent’s H003 31 Tr. 30-31 32 Tr. 31 33 Tr. 32 34 Parent’s HOO3 35 Tr. 29 36 Tr. 30 37 Parent’s J002
[20] U.S.C. 1415(f)(3); New York State Education Law § 4401(a); 8 N.Y.C.R.R. 200.5 (j)(1)(i); Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 114 (2d Cir. 2008).
[1] Pre-Hearing Summary Conference and Order 06/13/2023 9
[3] Parent’s Response to DOE’s motion