Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case No.: 248552

Student’s Name: [REDACTED] (Student)

District: [REDACTED]

Hearing Requested by: Parent

Record Close Date: September 18, 2023

Hearing Officer: Amy Porter

Procedural Background and Parent’s Position

On May 24, 2023, the Parent filed a due process complaint against the New York City Department Education (District) alleging a failure to provide the Student with a free appropriate public education (FAPE) for the 2021-2022 and 2022-2023 school years and requesting compensatory occupational therapy services and reimbursement for tutoring services.

Presentations of the Parties

The due process hearing was held on August 28, 2023. At the hearing, the Parent presented 15 documents and three witnesses: Dr. [REDACTED] (Director), Founder and Director of [REDACTED] (Tutoring Service); Violet Djurasevic (Tutor), Student’s tutor; and [REDACTED] (Parent), Student’s mother. The District did not present any witness or document evidence. The District waived its opening and closing statements and did not cross-examine the Parent’s witnesses.

ANALYSIS

For the reasons which follow, I find in favor of the Parent.

Student is a [REDACTED]-year-old boy diagnosed as having a Specific Learning Disorder and Impairment in Reading consistent with Dyslexia and a Specific Learning Disorder in Written Language.

FAPE

Because the District did not present a prima facia case, the District did not meet its burden to show that it provided the Student FAPE for the 2021-2022 and 2022-2023 school years. (NYS Educ. Law § 4404(1)(c)).

Parent’s Placement

The Student has been attending public school for the 2021-2022 and 2022-2023 school years. The Parent asserted that the additional services that she obtained from Tutoring Service for the 2021-2022 and 2022-2023 school years were appropriate for Student.

The Parent has the burden of proving that the services she obtained were appropriate. To do this, the Parent must establish, by a preponderance of the evidence, that the services provided “educational instruction specifically designed to meet the unique needs of the student.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d . Cir. 2007]. The program must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Gagliardo, 489 F.3d at 115.

The Parent presented sufficient testimony to support her contention that the program was appropriate for Student.

I found the Director’s testimony credible based on her expertise, assessment of Student, and ongoing supervision of Student’s tutor. (Ex. M-1). Director described how Student was struggling and how he progressed through his tutoring. (Ex. M-2). Tutor’s testimony was credible based on her background, experience, training and knowledge of Student. (Ex. N-1). Teacher explained that the Orton-Gillingham technique she uses helps Student with his reading, writing and memory. (Tr. 68).

I also found the Parent, whose testimony corroborated the testimonies of Director and Teacher, to be credible. (Ex. O ; Tr. 78-82).

Finally, the District did not offer any testimony or evidence to rebut Parent’s evidence regarding the appropriateness of Parent’s placement. Thus, I find the credible and uncontradicted facts presented by the Parent to be true. Comdyne I, Inc. v. Corbin, 908 F. 2d 1142, 1149 (3d Cir. 1990).

The uncontroverted testimony and evidence established that the tutoring services for Student for the 2022-2023 school year were reasonably calculated to enable him to receive educational benefit and make progress, and met his unique needs. I therefore find that the services provided by Parent for the 2022-2023 school year were appropriate.

I further find that the equities favor the District’s responsibility for payment for these services.

Compensatory Services

The Parent requested compensatory services for the District’s failure to provide the Student with a FAPE for the 2022-2023 school year. The District did not object to the Student receiving compensatory services.

A hearing officer may award compensatory education relief when there has been a denial of FAPE. An award of additional services should aim to place a Student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. “[T]he ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place.” Reid v. District of Columbia, 401 F.3d 516, 524 (DC Cir. 2005).

Courts have frequently used a quantitative method to calculate the amount of services missed so that they can be made up through compensatory education. M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389, 397 (3d Cir. 1996); Manchester Sch. Dist. V. Christopher B. 807 F. Supp. 860, 872 (D.N.H. 1992). Under the quantitative approach, courts examine the amount of time during which a disabled child has been deprived of a FAPE and grant compensatory service with an eye towards making up that time. Thus, the child is entitled to services “for a period equal to the period of deprivation.” M.C. v. Central Reg. Sch. Dist., 81 F.3d at 397 (3d Cir. 1996).

Parent requested compensatory occupational therapy (OT) services based on the hours of services Student did not receive.

Student’s Individualized Education Plan (IEP) dated May 25, 2021 (2021 IEP) required that Student receive OT. (Ex. B-12). However, due to staff shortages, the District was unable to provide OT. (Ex. H-1). Parent calculated that for the 2021-2022 school year Student missed the 36 hours of OT mandated by his 2021 IEP.

The IEP dated March 25, 2022 also required that Student receive OT for the 2022-2023 school year. (Ex. C-5, 18). Although the IEP dated December 2, 2022 did not include OT, the Parent indicated that she had been advised this was an oversight. (Exs. D, O2-3; Tr. 77-78). Parent calculated that Student missed 21 hours for the 2022-2023 school year.

The District did not object to, contradict, or offer rebuttal testimony regarding recommendations and statements from all three Parent witnesses or Parent’s specific request.

Thus, I find that the Parent’s request for compensatory education is supported by the record and reasonably calculated to provide the educational benefits that would have accrued from special education services the District should have supplied in the first place.

THEREFORE, I ORDER the District

1. refund the Parent for private tutoring services obtained during the 2021-2022 and 2022-2023 school years and

2. provide the Student with fifty-seven (57) hours of compensatory occupational therapy services to be provided at the market rate.

Dated: September 18, 2023

Amy Porter

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.