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FINDINGS OF FACT AND DECISION
Case Number: 252019
Student’s Name: [REDACTED]
School District: District #[REDACTED]
Impartial Hearing Officer: Michelle S. Babbitt
Date of Filing: 7.25.23
Hearing Requested by: Parent
Dates of Hearing: 10.2.23, 10.20.23, 10.24.23
Record Close Date: 12.4.23 Date of Post Hearing Written 11.21.23 Summation:
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10.2.23:
For the Student:
Student
[REDACTED], Educational Advocate (hereinafter referred to as “Parent’s representative”)
For the Department of Education:
[REDACTED], Esq, (barred in State other than New York), Consultant Impartial Hearing Representative
(hereinafter referred to as “District’s representative”)
[REDACTED], Student (hereinafter referred to as “Witness #1”)
[REDACTED], Parent (hereinafter referred to as “Witness #2”)
[REDACTED], Principal, [REDACTED] Charter School (hereinafter referred to as “Witness #3”)
[REDACTED], Esq., Attorney for [REDACTED] Charter School
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10.20.23:
For the Student:
Student
[REDACTED], Educational Advocate (hereinafter referred to as “Parent’s representative”)
[REDACTED], Student (hereinafter referred to as “Witness #1”)
For the Department of Education:
[REDACTED], Esq, (barred in State other than New York), Consultant Impartial Hearing Representative
(hereinafter referred to as “District’s representative”)
[REDACTED], Special Education Teacher, CSE 5 (hereinafter referred to as “Witness #4”)
NAMES AND TITLES OF PERSONS WHO APPEARED ON 10.24.23:
For the Student:
Student
[REDACTED], Educational Advocate (hereinafter referred to as “Parent’s representative”)
[REDACTED], Center Director, [REDACTED] (hereinafter referred to as “Witness #5”)
Learning Processes
[REDACTED], Tutor, (hereinafter referred to as “Witness #6”)
For the Department of Education:
[REDACTED], Esq, (barred in State other than New York), Consultant Impartial Hearing Representative
(hereinafter referred to as “District’s representative”)
Date of Decision: 12.4.23
BACKGROUND AND PROCEDURAL HISTORY
Petitioner filed a Due Process Complaint (“DPC”) on 7.25.23 against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”). In the DPC, the Parent requested the following relief:
1. Reimbursement for tutoring services paid for by Parent for Student for 21-22 and 22-23 school years.
2. 800 hours of tutoring from private tutor, [REDACTED].
3. 60 hours of compensatory speech and language services; and
4. Pay for private evaluation for Dyslexia testing for Student (Exhibit 1-4).
I was appointed as the impartial hearing officer on 7.26.23. I held a Prehearing Conference (“PHC”) in this matter on 8.25.23. The District representative appearing at the PHC stated that the District was still investigating the case. I directed the District to state its position with respect to the allegations in the DPC by sending an email to Parent and this tribunal on or before the close of business (5:00 p.m.) on 9.12.23. The Parent advised that a resolution agreement addressed part of the relief requested in the DPC, specially, tutoring, and compensatory hours for speech and language therapy. The parties selected 10.2.23 for a hearing on the merits (IHO Exhibit 1-2). Parent’s representative disclosed that she was appearing as an educational advocate, had provided tutoring services to the Student for the two years at issue, but would not be testifying as a witness as to the services rendered. The District, however, issued a subpoena for Parent’s representative to appear and testify.[1] The parties submitted written memorandum on the inherent conflict (advocate as a witness) but neither side could find caselaw on the issue as Parent’s representative is not an attorney. The District affirmatively elected not to raise any objection to the testimony of Parent’s representative based on conflict (Tr.38). Parent’s representative stated that Parent was unable to obtain representation elsewhere. In balancing the rights and desires of the parties, the absence of law and/or regulations addressing the issue, compliance deadlines, and the needs of the Student, I determined that the Parent could proceed with Parent’s representative, provided the Parent submit an affidavit, acknowledging the potential inherent conflict, credibility issues, and potential negative consequence of having an advocate testify and serve in two roles (Exhibit HH). The issue was discussed at the inception of the hearing to ascertain that the Parent was aware of potential consequences (Tr. 38-50). The issue was again discussed on the second day of the hearing when Parent’s representative stated she wished to testify on the tutoring
issue. [2]
Participating in the hearing were Parent’s representative and the District’s representative.
HEARING
The District stated that they provided a Free and Appropriate Education (“FAPE”) to the Student for the 21-22 and 22-23 school years and that Parent’s unilateral provision of tutoring services was a Prong II Parent burden. The District intended to present two witnesses to speak to FAPE for the 22-23 school year; however, they did not have any witnesses to speak to FAPE for the 21-22 school year. The Parent agreed that placement was not in issue for the 21-22 school year because the Parent placed the Student in the Charter School (Tr.59). At the inception I noted that the lack of witness testimony would require the District representative to detail in the written summation how the documents support FAPE for the 21-22 and 22-23 school years (Tr. 53-60). At the hearing, I learned that the District did not have its two witnesses available to testify. [3]
Parent made an opening statement discussing that the IEP for the 22-23 school year was not implemented as written. The District conceded that services “started and stopped.” Neither party knew how many sessions were missed. The IEP for the Student recommended that he receive Special Education Teacher Support Services (“SETSS”) in ELA three times each week in a group and SETSS for math (Tr. 66-73). Parent’s representative was requesting compensatory services in the form of tutoring for the missed sessions (Tr.76). That issue was later resolved through a resolution agreement; accordingly, the request for compensatory tutoring services is not before this tribunal and evidence regarding that issue will not be discussed in this Findings of Fact and Decision (“FOFD”) (Tr. 292)(“Right, the SETSS hours, which we were asking for through [REDACTED], that's off the table, the 60 hours of speech services is off the table, and I believe that --the other two things have been resolved.” (Parent’s representative)).
HEARING OFFICER BABBITT: Okay, so let's just be clear.
The only issue before me is whether or not this student should be evaluated to see whether he has a disability, or some sort of deficit in learning -- dyslexia, it's commonly called -- and also in the past, the student has received tutoring services. Remind me, he received tutoring services for what school year? [Parent’s representative]: For the 2022/2023 school year.
HEARING OFFICER BABBITT: All right. So
those are the two issues that remain. [District representative], are you in agreement as to what [Parent representative] has framed as the issues that have been resolved and the issues that remain? [District representative]: Yes, I'm in agreement. Thank
You (Tr. 293).
Parent’s representative asserted that the Student did receive SETSS in math (2x week-group) and ELA (3 X week-group) for the 21-22 school year but because the teachers were not properly certified they did not have the skill set to administer such services (Tr. 82-85).[4] The Parent was not seeking reimbursement for services provided during the 21-22 school year. Further, the Parent stated no request for relief was being sought for the 21-22 school year. As Parent withdrew all claims for the 21-22 school year the District was not required to show they provided FAPE, as agreed to by the parties. (Tr. 90-91, 107, 274).
Parent asserted that for the 22-23 school year the Student did not receive any speech services or SETSS for ELA and math. The District conceded the same was true, but those issues were addressed through the resolution agreement. The Parent could not articulate how she arrived at the request for 800 tutoring hours (Tr. 95-97, 107-108). Notwithstanding, as this issue was resolved through a resolution agreement, no further discussion will be had as to this request. I note that on 10.2.23 Parent’s representative stated that no resolution agreement had been signed. Her representation was contrary to that made at the 8.25.23 PHC (Tr.101-106). [5]
Parent also sought to have the Student evaluated for dyslexia. The District representative, first, stated that the District cannot test a student for dyslexia, and then, changed her response to say that the assessment was already done (Tr. 119-124,139-141). Parent also sought reimbursement for tutoring services from August 2022-May 2023 in the amount of $3,950.00 (Tr. 143-144).
As claims for the 21-22 school year were withdrawn the District representative stated that Exhibits 2, 2b and 3 were withdrawn. Exhibits 1, 4-21, inclusive, were admitted into evidence, with no objection from the Parent (Tr. 112-117).
Parent sought to admit documents marked as exhibits A-HH into evidence. The District objected to Exhibits A, B, C, D, I and K. Exhibit A was marked, but not admitted into evidence. It would be admitted, subject to connection by the Parent (Exhibit A was admitted into evidence through Witness #3 (Tr. 252)). The District withdrew its objection to Exhibits B, D, I and K. Exhibit C was not allowed into evidence. Exhibits B, D-HH were admitted into evidence, without objection from the District (Tr.144-162). Exhibit II, an affidavit in lieu of direct testimony from Witness #5, was marked but not admitted into evidence; the District’s objection of the District as to relevance was sustained. As the request for tutoring hours was resolved by a resolution agreement and not before this tribunal neither the testimony nor the affidavit of Witness #5 was germane to the proceeding (Tr. 397-400). This tribunal reminded the Parent’s representative that it is up to the Parent to show, through witness testimony, how the documents are relevant to the issues before the tribunal (Tr. 162).
Witness #1, the Student, was called to testify by the District. The Student testified that he attended tutoring sessions twice a week with the Parent’s representative in a consistent manner. His mother determined that he should receive tutoring (Tr.174-175). The Student learned phonics with the Parent representative/tutor and read books that were assigned in school (Tr. 177-180). The Student testified that the tutoring was different than the work he did in his group SETSS (Tr. 180-181).
Witness #2, the Parent, stated that she determined, together with the Parent’s representative that the Student required tutoring five times each week, but she could only afford to pay for two sessions per week (Tr. 183). Witness # 2 determined that the Student needed to be assessed for dyslexia in consultation with Parent’s representative, who had included the Student in her study on the issue (Tr. 184-186).
Witness #3 testified that the Student has been at the Charter School for four years; he graduated from the school in June 2023 (Tr. 194). For the 22-23 school year the Student’s IEP mandated he receive SETSS for English (3X week) and Math (2X week) and SLT. Witness #3 did not know if the Student received the services consistently throughout the school year, but she opined that the Student needed the tutoring services provided by Parent’s representative during the 22-23 school year (Tr. 195, 200-208; Exhibit 11). At the beginning of the 22-23 school year, the Charter School did not have SETSS for either math or English. The services started in October 2022. On certain days when there was school wide testing, the Student did not receive SETSS. The testing periods, of which there were five, each lasted for a one-week period. During the testing periods, the Student did not receive SETSS (Tr. 211-214). Witness #3 testified that the Charter School had a difficult time securing a SLT for the 22-23 school year (Tr. 220-221). Witness #3 acknowledged that the Student missed certain SETSS services and thought that the CSE offered make-up services and RSAs to address the matter (Tr. 241-242, 262-265).
Witness # 3 testified that the Student “is reading below his target grade level reading. And so that was one of the struggles. His teacher said that he was inconsistent with his ability to recall the basic level, like summary of the text, plot, character solution problem. Additionally, he needed additional support with being able to provide evidence to support his claims when writing short responses” (Tr. 250). Witness # 3 testified:
So his math teacher says that he was not performing on grade level with -- in computations. He also had struggles with multiplication and division of just plain whole numbers and knowing his multiplication facts, which impeded his fluency in solving algebraic and pre-algebraic equations, which is what he was working on. They also encountered issues with him showing his work when solving problems and knowing what steps to take in multistep problems (Tr. 252; Exhibit A-4).
The sections delineated as academic performance and present levels of performance on the IEP were contributed by the school (Tr. 252-255, Exhibit A-4). Although the Charter School does not conduct evaluations, CSE 5 would conduct an assessment to determine if the Student has dyslexia (Tr. 260). Witness #4 testified on behalf of the District. An employee of the District since 1988, part of Witness #4’s duties is to serve as a special education teacher and the District representative for annual review meetings for students in nonpublic schools or charter schools (Tr.305-306). Witness #4 was present for the IEP meetings for the Student for the 22-23 and 23-24 school years (Tr. 307, 309; Exhibit 11). A teacher report and a speech and language progress report were reviewed and considered in making recommendations for the Student (Tr. 311-314, 352-355; Exhibits 12, 13 and 14). The Parent’s concerns were set forth in the IEP (Tr. 314-315; Exhibit 11-5-6). The Student’s deficits were: • in ELA - areas of comprehension and decoding. • in math- area of fractions and word problems • in speech and language comprehension, essay-writing, and main idea, and key details (Tr. 315-317; Exhibit 11-5).
The recommended educational program for the Student for the 22-23 school year was “integrated coteaching class, eight periods of ELA, eight periods of math, two periods of social studies, two periods of science. In addition, special education teacher support services three times a week for ELA and two times a week for math, and as a related service, the team recommended speech-language therapy once a week, 30 minutes individually, and twice a week, 30 minutes in a group no larger than three.” (Tr. 317; Exhibit 11-14-15). When asked whether the Student required a tutor for the 22-23 school year Witness #4 responded: “I believe that what the -- that what I recommended on the IEP is appropriate in meeting his needs and that the IEP is calculated for educational benefit. You know, [the Student] has a recommendation of both the ICT class and the special education support services, so those two supports together should be calculated to -- for his, you know, educational benefit” (Tr. 319). Witness #4 testified that testing for “dyslexia is usually part of a psychoeducational evaluation, but also a speech therapist can supply information about phonemic awareness and -- and decoding skills” (Tr. 356). Both the District and the Parent submitted written closing summations and briefs on 11.21.23 (IHO Exhibits 3 and 4). The Parent did not submit a corrected exhibit list and exhibits until 12.1.23.
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.
The Student is a [REDACTED]-year-old boy, who attended eighth grade at the Charter School. The Student is classified as a student with a Speech and Language Impairment (Exhibit 11-1). He presents with receptive and expressive language needs (Exhibit 11-7). The Student was below grade level academically (Exhibit 11-7). The CSE team noted that the Student “needs educational support and services with specially designed instruction to progress in the general education curriculum” (Exhibit 11-7).
During the IEP meeting of 7.27.22, the Charter School reported that the Student is at a level U, 5th grade level, for reading. He can decode with prompting but has trouble with fluency, inflection, and repeating words at grade level (Exhibit 11-2). At the IEP meeting it was also reported that the Student:
• struggles to calculate with fractions, as he lacks an understanding of fractions; • cannot differentiate between a proper and improper fraction, and a mixed number; • regarding word problems, had difficulties solving one step word problems involving division; • benefits from frequent teacher check-ins to ensure he is on task and to support him in understanding the lesson; • does well in small groups of no more than 6 students; • is at a 4th grade level in math; • fails to do his ELA homework consistently; • Has poor quality of ELA homework; • had speech and language therapy individually and in a group; • benefits from scaffolding and verbal support to recall certain details and generate higher level inferences from a text; • requires support to draw connections and formulation of central ideas; • when reading a text, benefits from guided questions to make inferences and draw conclusions about characters, their actions, thoughts, and motivations; • Requires graphic organizers; • benefits from reminders to stay on task; • benefits from reading aloud with a teacher or another student to aid in his comprehension of the material presented; • presents with difficulty decoding unfamiliar words; • demonstrates difficulty including the context as well as analysis of his evidence independently; and • benefits from sentence frames/starters, prompts to reduce rate/reread his work, checklists, revision visuals and clarifying questions to develop detail, organization, and accuracy (Exhibit 11-3-5). At the 7.27.22 IEP meeting Parent reported that the Student had a tutor for reading “She said that he has improved in decoding and is doing well with the book he is reading this summer.” The IEP does not reflect that Parent requested the CSE team to include after school tutoring services in the IEP (Exhibit 11-6). The present levels of academic performance and individual needs in the IEP were detailed (Exhibit 11-1-7). Seven goals were listed for the Student (Exhibit 11-8-14). The IEP team appears to be appropriately composed (Exhibit 11- 21). Parent did not make any assertions to the contrary. The IEP itself did not deprive the Student of FAPE. To support the Student, the CSE recommended Integrated Co-Teaching (“ICT”) services in ELA, Math, Social Studies, and Science with SETSS 3 times per week in a group for ELA and two times per week in a group for Math. Speech-language therapy (“SLT”) (1 X 30(1:1) and in a group (2 X 30) were also recommended for the Student (Exhibit 11-14-15). The Parent selected the Charter School that the Student attended (Tr.59). The deficiency for the 22-23 school year as set forth in the DPC filed by the Parent was that the Charter School failed to provide SETSS, as set forth in the IEP (Exhibit 1-2-4). To address that deficit, the District entered into a resolution agreement to provide compensatory tutoring hours for both missed SETSS and SLT. The request for payment for tutoring services employed by the Parent and provided by Parent’s representative during the 22-23 school year is not a result of the aforesaid deprivation, and if it was, it would constitute a request for double recovery. The Student was working with the Parent representative, in her role as a tutor, prior to the 22-23 school year. He first started getting tutoring sessions from Parent representative in 2020 (Tr.166). The Parent, together with the Parent representative, determined that the Student should receive these tutoring services (Tr. 183). The CSE team did not recommend after school tutoring services (Tr. 319). The after-school tutoring services appear to be an effort to maximize the Student’s potential, rather than necessary for the Student to make educational progress at the Charter School. I note the District’s argument on the issue of after-school tutoring: The Parent when asking for reimbursement for their decision to hire a private tutoring is essentially asking for a double relief. Parent stated that they had to seek additional tutoring because Student did not receive his SETSS and SLT services, however, this was resolved through a partial resolution. See Tr (8/25/23) pg. 9 and TR (10/2/12) pg. 108, 133. Additionally, Parents were compensated through Related Service Authorization (RSA) vouchers for the SETSS and SLT sessions that were missed, resulting in a triple relief. See Tr (10/2/12) pg. 232-234. See also DOE Exhibits 16-21. In addition, the [REDACTED] Charter School (“Ascend”), which Student was attending tried to rectify the lack of SETSS by offering SETSS sessions at the back of the room, only to find out it did not meet the requirements. See (Tr 10/2/23) pg. 240-241. Ascend also made up the missed sessions of SETSS during the 5 scheduled testing days. TR (10/2/23) pg. 262. (IHO Exhibit 2-6).
Considering the foregoing, and as more fully discussed below, I find that a) the DOE failed to implement the IEP for the 2022-2023 school year; b) the deprivation of services was addressed and settled through a resolution agreement; c) the request for tutoring services was not shown to be necessary for the Student to make educational progress and/or such an award would be a double recovery in light of the tutoring hours awarded under the resolution agreement; d) the District is to conduct updated evaluations, including diagnostic testing to ascertain if the Student presents with dyslexia, and if so, recommend measures to address the deficiency, and c) that there are no equitable issues to address.
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. [6]
Prong I
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE").[7] 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 (“IEP”).[8] 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.[9] 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.” [10]
Although inartfully plead, it appears that the Parent alleged a deprivation of FAPE during the 22-23 school year due to the District’s failure to implement the recommendations in the IEP. There are no allegations of procedural and substantive failures in the DPC (Exhibit 1 and IHO Exhibit 3). Testimony adduced at the hearing showed that there were interim periods during the 22-23 school year when the Student did not receive SETSS and speech-language therapy as recommended in the IEP (Exhibit 11). To address this deficit the parties entered into a resolution agreement for compensatory tutoring hours. The District’s position that they provided FAPE is inconsistent with the provision of compensatory relief. (Tr.108,133, Exhibit IHO 2-4-5). The District’s failure to implement the IEP as written constitutes a deprivation of FAPE.
Prong II
A private school placement must be "proper under the Act."[11] This means that the private school must offer an educational program that meets the student's special education needs.[12] Parents seeking tuition reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[13] Subject to certain limited exceptions, “the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.” [14]
Parents need not show that the placement provides every special service necessary to maximize the student's potential.[15] When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[16] A private placement is appropriate if it provides instruction specially designed to meet a student’s unique needs. [17]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefits, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. [18]
Here, the Parent seeks after-school tutoring services as part of the Student’s educational program, and apparently is requesting such based on the failure to provide SETSS during the school year. Even if the parent is challenging the IEP for failure to include after-school tutoring, and such is not set forth in the DPC, the Parent has not shown that the after-school tutoring was necessary for the Student to make progress.
Notwithstanding the resolution agreement providing for compensatory services in the face of missed SETSS and SLT, it appears the Parent claims that such deprivation entitles her to be reimbursed for after-school tutoring hours provided by the Parent’s representative. The Parent representative has tutored the Student since 2020. Parent, together with Parent’s representative, determined that the Student required five hours of tutoring each week. The Parent testified that she could only afford to fund two hours each week. The CSE team was aware that the Student was receiving tutoring when they convened for the 22-23 IEP meeting, and determined that after school tutoring was not warranted. There is no evidence in the record that after-school tutoring was necessary for the Student to make educational progress at the Charter School and accordingly, the request for such relief is denied. Parent simply did not meet her burden.
Based on the foregoing, the request for reimbursement for after school tutoring hours for the Student was not shown to be necessary for the Student to make meaningful progress.
It is beyond reproach that the Student has numerous challenges and is performing academically under grade level (Exhibits L and BB). He has challenges in the area of decoding. Although Parent’s representative submitted a study that she conducted in connection with post graduate work, she failed to explain the methodology, purpose, or findings when she testified (Exhibit E). Parent’s representative offered additional testimony and explanation in her written summation, which is inappropriate. Notwithstanding, Parent’s representative admits she is unable to diagnose dyslexia (IHO Exhibit 3-2). Parent expressed her concerns to the District and asked that they test the Student to see if he presented with dyslexia (Exhibits L, O). Parent’s concern as to this condition, coupled with the Student’s poor academic performance and challenges, as heretofore detailed, (and set forth in the 7.27.22 IEP), together with the failure to conduct updated evaluations warrants current testing to assess the Student in all areas in which the Student shows suspected disabilities. 19 A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities. 20 An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services' needs, whether or not commonly linked to the disability category in which the student has been classified. 21 The speech and language evaluation is from 2021 (Exhibit 6). Current evaluations must be performed to determine the Student’s needs, including whether the Student’s needs require a smaller class size, a specialized school and additional or different services. The CSE is tasked with reviewing information about the student’s progress under current educational programming and periodically assessing the student’s needs. 22 To afford the CSE an opportunity to fulfil its task, the CSE is directed to convene within 20 school days of the date of this Order to determine what evaluations and assessments are necessary to comprehensively identify the Student’s special education and related services’ needs (including dyslexia), and after receipt of such evaluations, reconvene and develop a new IEP for the Student.
The undersigned has reviewed the parent’s remaining contentions and finds them to be either unnecessary to this decision, without merit, beyond my jurisdiction, too vague to be of use, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parent’s remaining claims not discussed herein are dismissed.
19 The District’s analysis of Parent’s request for dyslexia testing as a request for an IEE is misplaced and is not fully developed (IHO Exhibit-2-7). 20 8 NYCRR 200.4[b][3]. 21 34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]. 22 See Application of the Bd. of Ed, Appeal No. 22-176 at page 18; See Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-
97 (D.D.C. 2018) (noting with approval the hearing officer’s finding “that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school”); see also Student X, 2008 WL 4890440 at*16 (noting “that services found to be appropriate for the student during one school year are not necessarily appropriate for the student during a subsequent school year”).
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
(1) The District did not provide FAPE to the Student for the 2022-2023 school year.
(2) Parent’s claim for funding for after-school tutoring services is DENIED for the 2022-2023 school year.
(3) The CSE is to (i) convene within 20 school days from this Order to determine which updated evaluations and assessments are necessary to comprehensively evaluate the Student in all areas of suspected disability, including diagnostic testing to ascertain if the Student presents with dyslexia, (ii) conduct such evaluations and assessments within a timely manner and; (iii) thereafter, develop a new IEP recommending an educational program and services to address the Student’s deficiencies.
Dated: December 4, 2023
Michelle S. Babbitt (electronically signed)
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.
DISTRICT EVIDENCE
1. Due Process Complaint 7.25.23 6 pages DOE
2. WITHDRAWN 2b Withdrawn DOE
3. WITHDRAWN DOE
4. Social History Update 7.15.21 4 pages DOE
5. Psychoeducational Evaluation 7.28.21 3 pages DOE
6. Speech/language Evaluation 7.14.21 18 pages DOE
7. Vocational Interview 7.28.21 2 pages DOE
8. WITHDRAWN DOE
9. WITHDRAWN DOE
10. WITHDRAWN DOE
11. IEP 7.27.22 22 pages DOE
12. PWN 8.15.22 9 pages DOE
13. Speech and language Progress Report 5.15.22 3 pages DOE
14. Teacher Progress report 7.27.22 3 pages DOE
15. Conference Notes 7.27.22 3 pages DOE
16. Related Service Individual Authorization 10.11.22 3 pages DOE
17. Related Service Individual Authorization 10.11.22 3 pages DOE
18. Authorization for Independent SETSS 3.17.22 2 pages DOE
19. Authorization for Independent SETSS 3.17.22 2 pages DOE
20. Authorization for Independent SETSS 5.29.23 3 pages DOE
21. Authorization for Independent SETSS 5.16.23 3 pages DOE
PARENT EVIDENCE
A. IEP and Attendance Sheet 7.28.23 29 pages
B. Email chain-re 7.28.23 IEP meeting with Teacher’s report 7.27-7.28.23 10 pages
C. Text-SETSS provider- Invite to IEP meeting Not admitted into evidence 7.28.23 2 pages
D. Email with [REDACTED] 4.3.23, 4.19.23 17 pages
E. Case Study on [REDACTED] for [REDACTED] University 7.27.22 26 pages
F. Email to Principal -reading concerns 3.15.23 3 pages
G. Email to Principal – reading concerns 3.8.23 2 pages
H. Email to principal- tutoring notes 3.17.23 4 pages
I. NYSED Teacher Certification pages for [REDACTED] SETSS teachers 9.16.23 8 pages
J. [REDACTED] payment for tutoring 2022-2023 15 pages
K. Text btw [REDACTED] (mom) and tutor 9..23-9.30.22 4 ([REDACTED])- payment and issue with lack of SETSS
L. Letter from Ms. [REDACTED] and Ms. [REDACTED] requesting dyslexia evaluation and request for make-up services 10.26.22 1 page
N. M Texts from tutor to Ms. [REDACTED] about no SETSS 1.21.23- 2 service 1.24.23 [REDACTED] letter about no SETSS 2.28.23 1 page
O. Emails between Principal [REDACTED], CSE, Ms. [REDACTED] and [REDACTED] concerning no SETSS service- reminder of Oct 26 email of no service 2.28.23 3 pages
P. Email to CSE chair recapping concerns with lack of SETSS reference Oct. letter 3.8.23 3 pages
Q. Email between Principal [REDACTED], Ms. [REDACTED], [REDACTED] and CSE 5 chair regarding meeting about lack of SETSS 3.1.23 1 page
R. -Email to Attorney [REDACTED] -With chain of letters to 2.28.23Principal [REDACTED] and CSE 5 Chairperson regarding meeting on March 6 3.20.23 14 pages
S. Email to [REDACTED] from NYLPI ([REDACTED]) 4.27.23 1 page
T. Text messages btw Ms. [REDACTED] and Ms. [REDACTED] about meeting with NYLPI 4.24.23 5 pages
U. Data tutor shared with Principal [REDACTED] and school team at meeting held on 3/6/23 V State test results 4th, 6th, 7th,8th grades 6 W 9.15.21- 6 Email chain from 2021- concerns about school’s inaccurate 9.16.21 reading level along with Ms. [REDACTED]’s results 3.6.23 4 pages
X. Email chain between [REDACTED] ([REDACTED]), Ms.[REDACTED] and Ms. [REDACTED] from 2021: Ms. [REDACTED]’s assessments updated 9.21.21 6 pages
Y. Email from Assistant Principal [REDACTED]- reassessment results 10.1.21 10 pages
Z. Email chain to [REDACTED] admin, Ms. [REDACTED], 11.19.21and Ms. [REDACTED]-repeated request for 12.14.21 [REDACTED]’s graded work 10 pages
AA. Tutor’s informal decoding assessment 6.18.22 4 pages
BB. Progress Report for 2021-2022 and Report Card 2022-2023 2022-2023 2 pages
CC. A-820 and letter to release data to tutor 8.27.23,10.2.23 2 pages
EE. DD DIBLES Benchmark Goals 7.20 1 REWARDS Program prerequisite skills -used by tutor 9.11.23 1 page
FF. Shifts DOE/DYCD 1 GG 4.13.23- 2 Tutor’s email to Professor Dr. [REDACTED] seeking guidance for helping [REDACTED] 4.14.23 6 pages Parents
HH. Parent Conflict of Interest Waiver 9.23.23 1 page
II. Affidavit from [REDACTED] of [REDACTED]-Not admitted into evidence 10.13.23 5 pages
IHO EXHIBITS
1. Prehearing Conference Summary and Order 8.25.23 9 pages IHO
2. DOE’s Closing Brief and Memorandum of Law 11.21.23 8 pages IHO
3. Parent’s Written Summation APPENDIX Information Term Used In FOFD [REDACTED] Student [REDACTED]. Parent Educational Advocate [REDACTED], Esq., District Representative Consultant Impartial Hearing Representative [REDACTED], Student Witness # 1 [REDACTED], Parent Witness # 2 [REDACTED], Principal, Witness #3 [REDACTED] Charter School [REDACTED], Special Witness # 4 Education Teacher, CSE 5 [REDACTED], Center Witness#5 Director, [REDACTED] [REDACTED] Charter School Charter School 11.21.23 9 pages IHO
Footnotes
[1] I signed the subpoena submitted by the District, who did not serve it on Parent’s Representative (Tr.50-53).
[2] “I went over this when the parent was on the record. I don't expect that you're going to testify against your own interest, and your interest is to receive monies for services that you rendered, so there is an issue of credibility. You have to understand that when you're both the advocate and the witness, so there's that issue. It's not clean. I always prefer that an advocate is not a witness, but I did read both your memos, did some research, and there doesn't seem to be anything on point where we have a non-attorney being an attorney -- being an advocate and a witness. But there are credibility issues, there's conflict issues, things of that nature, but I'm not going to preclude you from presenting the case that you feel you need to present on behalf of the Parent” (Tr.297) (See also Tr. 403-404).
[3] The District Representative’s lack of preparation and inability, and/or unwillingness, to answer questions was noted on the record as a recurring problem. The District Representative (i) made statements without any underlying support; (ii) made conflicting statements; (iii) was unnecessarily argumentative; and (iv) demonstrated a lack of understanding as to conducting a hearing (including failing to send disclosure to the District’s own witness} (Tr. 60-66, 78-81, 85, 110-111. 121-130, 140-141, 169- 172, 176, 184, 308, 318-320, 334-335, 343 344-345).
[4] Parent’s representative lacked clarity throughout the proceeding as to the claims being presented and the relief being sought. At the hearing, Parent asserted that there was a deprivation of FAPE due to teacher’s not having the skill set to administer related services. However, the Parent made no such assertion in the DPC. The District objected as they received no notice of such claim.. I advised the Parent’s representative that I was precluded from hearing issues that were outside the DPC. Parent’s representative could not articulate the reasoning behind the relief sought for the 22-23 school year for Student. In addition, the Parent’s representative attempted to admit documents that were not relevant to the school year and claims at issue. A certain leniency was afforded the Parent’s representative as she is not an attorney; however, as she is an educational advocate she is expected to have the skill set to represent the Student. Parent’s representative also sought to testify on issues, although not sworn in (Tr. 86-89, 94-97,118, 149-152, 187, 215-216, 227-229). Parent’s representative had a difficult time phrasing questions and spent an inordinate amount of time having witnesses read from documents already in evidence (Tr. 249-250, 256, 325-326, 328-332). Parent’s representative inappropriately corresponded directly with one of the District’s witnesses (Tr.333-335). Parent’s representative also misunderstood the applicable law (Tr.348-351).
[5] See District’s Closing Statement: “However, Ms. [Redacted] then re-requested the relief of 800 hours of tutoring. See TR (10/2/23) pg. 91- 92, 128 - 230. She then re-requested 60 hours of SLT. See TR (10/2/12) pg. 95-96, pg. 107. And then retracted that on TR (10/2/23) pg. 125 – 136, and then re-asked for it later that same hearing date. See TR (10/2/23) pg.141 – 144. Ms. [Redacted] reiterated her request for dyslexia testing. See TR (10/2/12) pg. 118 – 120, 139, 141. Before the next hearing on October 20, 2023, a partial resolution agreement was entered into between parties. See TR (10/20/23) pg. 292 which took the SETSS hours and SLT hours off the table and tutoring from [Redacted]. So that leaves the tutoring reimbursement and dyslexia testing at issue (DPC issues number 1 and number 4). See TR (10/20/23) pg. 292 – 293.” (IHO Exhibit 2-3).
[6] See NYS Educ. Law § 4404(1)(c); R.E. v. N.Y.C. Dept. of Educ., 694 F.3d 167, 184-185 (2d Cir. 2012), C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 835-836 (2d Cir. 2014).
[7] See 20 U.S.C. § 1400 (d)(1) (A)
[8] See 34 C.F.R. § 300.13
[9] See Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[10] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[11] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 (1993); see also Sch. Comm. Of Burlington v. Dept. of Educ., 471 U.S. 359, 370 (1985).
[12] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[13] Gagliardo, 489 F.3d at 112
[14] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)
[15] See Frank G., 459 F.3d at 364-65.
[16] Frank G., 459 F.3d at 364; see also Gagliardo, 489 F.3d at 115.
[17] See 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[18] See Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65.