Impartial Hearing Decision

CASE NUMBER: 604700 - [REDACTED]: 252283

FINDINGS OF FACT AND DECISION

Case Number: 252283

Student’s Name 1: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

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

Request Date/Date Complaint Filed: August ^[1], 2023

Date of Hearing: October 3, 2023

Actual Record Closed Date: October 27, 2023

Date of Decision: November 10, 2023

Date of Distribution if Different than Decision Date:

Hearing Officer: Lisa S. Rusk, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 3, 2023

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

[REDACTED], Interpreter

[REDACTED], Director

For the Department of Education:

[REDACTED], Attorney

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC"), dated August 2, 2023, but filed on August 1, 2023. (Ex. P-O) 2. The record does not contain any evidence of a response by [REDACTED] (hereinafter referred to as “the District”). This IHO was appointed on August ^[2], 2023. During the resolution period, a partial resolution was offered regarding requested evaluations (T:4). A prehearing conference was held on September 1, 2023, following the resolution period. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared on behalf of the District. The hearing was held on October 3, 2023. [REDACTED] appeared on behalf of the Parent. [REDACTED] appeared on behalf of the District.

On October 3, 2023, the District entered into evidence Exhibits 1-9. The District did not present any witnesses (T:35). The Parents entered into evidence exhibits A-O.^[3] Two witnesses testified on behalf of the Student, including the Student’s Parent. The District did not crossexamine the Parent or her witness (T:46,62). One extension of the compliance date was granted for the parties to submit closing briefs. The parties submitted written closing briefs on October 27, 2023. The record was closed on October 27, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq. The DPC also claimed violations of Section 504 of the Rehabilitation Act of 1973, but the Parent clarified that the Section 504 issue was subsumed under the IDEA (T:4).

ISSUES

The Parent alleges that the District denied the Student a free appropriate public education (“FAPE”) for the 2021-22 and 2022-23 school years. The Parent alleges that the District failed to conduct appropriate evaluations and failed to provide the Parent with all mandated progress reports. The Individualized Education Program (“IEP”) goals were not appropriate, but merely restatements of goals from previous IEPs. Despite clear evidence that the Student was not progressing, the District failed to make any changes to his placement or services related. The Student, therefore, regressed. The Parent also alleges that the District failed to offer a FAPE in the least restrictive environment. In the DPC, the Parent requests a reconvene of the CSE and a recommendation for a non-public school 4. The Parent requests assistive technology (“AT”), occupational therapy (“OT”) and speech evaluations5. The Parent further requests at least 800 hours of compensatory tutoring due to the lack of FAPE. She requests 40 hours each of compensatory speech therapy and counseling. (Ex. P-O-6-7).

The District argued in its opening statement that it provided the Student a FAPE for the 2021-22 and 2022-23 school years. The District recommended an IEP on March 18, 2021 and subsequently reviewed and revised it on January, February and June 2022. Each IEP had sufficient evaluative data as referenced in the IEPs and prior written notices (“PWNs”). The Committee on Special Education (“CSE”) considered the Parent’s input and reports. The IEPs contained appropriate present levels of performance, management needs, specific and measurable goals. On November ^[4], 2021, the District offered 20 hours of small group instruction as special education recovery to make up for services during the pandemic. The District reserved the right to challenge the appropriateness of the Parent’s relief and the equities (T:25-27). Parent’s counsel reiterated the claims in the DPC during her opening statement (T:27-32).

5 The District agreed to conduct the AT and OT evaluations, and the Parent withdrew her request for a speech evaluation (T:33,35).

FINDINGS OF FACT

The Student was referred to the CSE by his parent for evaluation in 2019 while he was in the third grade (Ex. P-A-1). In a May 2019 psychoeducational report, the Student’s fullscale IQ was measured to be 80 placing him in the low average range. On academic testing his applied problems score was in the very low average range, his reading comprehension was in the low average range and his letter word identification, spelling, writing samples and calculation were in the average range (Ex. P-A-4). The Student was classified as a Student with a learning disability and provided with an IEP (Ex. P-B-1). In a March 19, 2020 IEP while he was in fourth grade, his instructional/functional level in reading is listed as second grade and math is listed as second grade. He was recommended to receive integrated co-teaching (“ICT”) ELA and math for ten periods per week each (Ex. P-B-7).

A year later in March of 2021 when he was in fifth grade, the CSE convened and recommended ICT ELA and math for ten periods per week each (Ex. P-C-10). The IEP stated that in a March 2021 assessment, he was at a grade 3 level for comprehension of literature. He was at a grade 1 level for phonics, grade 2 level for vocabulary and grade 2 level for comprehension of informational text. In math, he was on a 4th grade level in numbers and operations, 2nd grade level in algebra and algebraic thinking and geometry and 1st grade level in measurement and data. There is no narrative description of his present levels of performance in writing. The IEP again lists his instructional/functional reading level as second grade, but math is increased to the third grade level (Ex. P-C-14). Despite these scores, no individual or small group direct special education teacher instruction was recommended. In a letter, dated November 4, 2021, the parent was notified that the Student would receive 20 hours of small group instruction to run between November 2021 and February 2022, as part of the District’s special education recovery services (Ex. D-9).

In a CSE meeting in January of 2022, the CSE recommended the same ICT services (Ex. D-3). In a speech and language evaluation from December 2021 and February 2022, the Student was diagnosed with a mixed receptive and expressive language impairment. Individual or small group speech therapy was recommended two times per week to address deficits in auditory processing, language formulation and narrative production (Ex. P-I-13-14).

The District updated educational testing in February of 2022 when the Student was in sixth grade. His math problem score was in the very low range, reading comprehension and word reading were in the low average range and numerical operations and spelling were in the average range (Ex. P-F-2). There is no written language score. His teacher report from February of 2022 states that his reading was at grade 1 and math was at grade 3. She stated that he has limited vocabulary, difficulty with grade level comprehension, poor writing skills, limited ability with basic multiplication and addition facts and struggles with multi-step word problems (Ex. PG-1). He was described as quiet, distracted and very shy, and she recommended counseling for his low self-esteem (Ex. P-G-2).

In April of 2022, following comprehensive evaluations, a team at [REDACTED] recommended an ICT class, special education teacher support for reading and math, intensive, structured, multi-sensory remedial reading, speech and language therapy two times per week, school counseling and a referral to an educational advocate to be considered for compensatory services (Ex. P-J).

The Student was referred by the parent for an initial speech language evaluation in May of 2022. His core language score on the clinical evaluation of language fundamentals (“CELF”) measuring his general language ability placed him in the low range of language functioning. (Ex. P-K-6). His reading comprehension was assessed at the very low range (Ex. P-K-12). He again presented with a moderate receptive-expressive language disorder and speech language therapy was recommended two times per week in a group of three, and corresponding goals were recommended (Ex. P-K-15).

On his sixth grade New York State assessments in both ELA and math he received Level 1, indicating his performance was “well below proficient in the learning standards for [his] grade.” (Ex. P-M-1).

On June 13, 2022, when the Student was at the end of sixth grade, the CSE met to review his IEP for the 2022-23 school year. His classification was changed to speech language impairment (Ex. P-L-1). His teacher reported he was making slow progress and continued to benefit from his current program (Ex. P-L-2). The IEP states that the Student requires materials to be differentiated at his reading level which is about a third grade level (Ex. P-L-3). On the IEP, his instructional/functional level in reading is listed as second grade and in math is third grade (Ex. L-16). The CSE again recommended ICT math and ELA ten periods per week, but no individual or small group direct special education instruction in reading, writing or math. Counseling in a group one time per week for 30 minutes and speech therapy two times per week for 30 minutes in a group of 3 were added to his IEP (Ex. P-L-12).

The Parent testified through the interpreter that the Student has a lot of trouble with reading comprehension. Based upon her observation and reports, when he hears a story, he does not understand it well. She testified that he received compensatory services in reading and speech from the District during the 2021-22 school year. The Parent testified that this was not sufficient to address the Student’s difficulties (T:38-39). She testified that the Student also has difficulties with math problems due to his reading comprehension difficulties. She testified that he did not make meaningful academic progress during the 2021-22 school year and that she expressed her concern about this to the District (T:40). The District did not address her concerns in a meaningful way. She testified that he is in the eighth grade and reading like a second grade student (T:40).

With regard to the 2022-23 school year, the Parent testified that she did not see any progress in reading or math (T:41-42). She provided the District with a private evaluation. The District did not increase his services or add additional services (T:42-43). She did not understand how the District was passing him from grade to grade. She asked for him to be retained in fourth and fifth grade, but he wasn’t (T:43).

The Parent testified that the Student is very shy and does not socialize much. His selfesteem is okay, but sometimes he feels a little sad because he is not like his classmates (T:45). The Parent was asked whether the Student received speech or counseling during the 2022-^[23] school year and she responded that he was not receiving either (T:44). She testified that in a recent meeting, a speech therapist opined that he needs speech three times per week (T:44). When the IHO asked if he received counseling during the 2021-22 school year, the Parent responded no, but for the 2022-23 school year, he received counseling one time per week (T:46). She also clarified that he received speech two times per week from the District during the 2022The Director testified that her testing was consistent with the documentation she reviewed that he was functioning far below grade level academically (T:59). She testified that he is in critical need of academic remediation. She recommended the OG method for decoding and spelling and similar research-based multisensory techniques for reading comprehension, writing and math (T:59-60,66). She testified that he receives 10 hours per week over approximately a two-year time period for a total of 800 hours (T:60; Ex. P-N). She arrived at that recommendation based upon a thorough review of documentation, her evaluation and her extensive experience in working with students with similar profiles (T:61). She testified that the 800 hours would compensate him for the lack of appropriate instruction and that with intense remediation he has the potential to achieve grade level or very close to grade level (T:65).

She testified that tutors at [REDACTED] have a minimum of 6 years of teaching and/or tutoring experience within the field of special education, along with training in the OG methodology and similar research-based, multi-sensory techniques for reading comprehension, writing and math. The hourly rate for tutoring is $150 per hour (T:61).

The Director testified based upon her review of his IEPs that from March 2020 to March 2022 his reading level remained at a second grade level (T:62). She testified that she did not compare the standard scores in the District testing to standard scores available on the WRAT because the intent of her evaluation was not to measure his progress or to determine whether or not he made progress (T:63-63).

CONCLUSIONS OF LAW

The Individuals with Disabilities Education Act (IDEA) provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). 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 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

In New York State, 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 parental relationship seeking tuition reimbursement or payment for services for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

It is well settled that an appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).(Application of a Child with a Disability, SRO Appeal No. 22-154).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]; (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). The purpose of an award of compensatory education is to “make up for” a denial of a FAPE and place the student in the position he or she would have been had the IDEA not been violated (see E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 & n.12 [2d Cir. 2014]; P. v. Newington Board of Educ., 546 F.3d 111,123 [2nd Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123).

In discussing the formulation of compensatory relief federal courts have held that:

“In enacting the IDEA, Congress did not intend to create a right without a remedy" Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App'x 411, 415 (2d Cir. 2010) (internal citation removed). "The IDEA allows an IHO or SRO to fashion an appropriate remedy for students not provided a FAPE, and the Second Circuit has held that compensatory education is an available remedy under the IDEA to make up for denial of a FAPE." M.M. v. New York City Dep't of Educ., No. 15-CV-05846, 2017 U.S. Dist. LEXIS 47812, 2017 WL 1194685 (S.D.N.Y. Mar. 30, 2017). Such compensatory education "must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place." Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015) (quoting Reid ex rel. Reid v. District of Columbia, 401 F.3d 516, 524, 365 U.S. App. D.C. 234 (D.C. Cir. 2005)). In some situations, where the record reflects that "the alleged deficiencies suffered by the student have already been mitigated (or even totally alleviated)," an award of compensatory education may not be required. See Doe by & through Doe v. E. Lyme Bd. of Educ., No. 11-CV-00291, 2020 U.S. Dist. LEXIS 226464, 2020 WL 7078727 (D. Conn. Dec. 3, 2020)(M.T. and A.T. on behalf of R.T. v. Arlington C.S.D., 22-CV00437(S.D.N.Y. November 9, 2022).

The SRO has held that generally, compensatory services are not designed for the purpose of maximizing a student's potential or to guarantee that the student achieves a particular grade-level in the student's areas of need (see Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Rather, an award of compensatory education should place the student in the position that he would have been in had the district acted properly (see Parents of Student W., 31 F.3d at 1497 [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]).

ANALYSIS

As stated above, the District has the burden of production and persuasion. The District failed to present any testimony to demonstrate that it offered the Student a FAPE for the 2021-

22 and 2022-23 school years. It did not cross-examine or challenge the Parent’s witnesses and submitted no documentary proof (such as progress reports or program descriptions) that it provided the Student with a FAPE other than the IEPs, prior written notices and offer of special education recovery services. Additionally, the District presented a closing statement that did not contain any argument that it provided the Student a FAPE. In its closing brief the District argues inexplicably that the parent’s request “should be reduced based on the services actually provided during the 2021-22 and 2022-23 school years” with no identification of what services the District is referring to (District’s closing brief at pg. 3). There was no evidence as to how the ICT classes were meeting the Student’s unique special education needs or how reading instruction in particular was being delivered to the Student. The District made no arguments at the hearing or in its closing brief as to whether the Student was entitled to an award of compensatory education, and if so, what it should be. I find based upon the lack of a clear explanation from the District as to how the Student’s special education needs were met, as well as the Student’s significant unremedied academic deficits, that the record does not support a finding that the Student was provided a FAPE during the 2021-22 and 2022-23 school years. Based upon my findings, I do not need to address the other claims raised by the Parent.

As to remedy, if any, the record evidence showed that the Student struggled in reading, writing and math. The testing of the Director in June of 2023 did demonstrate some academic progress, however, he remained well below grade level. The Student’s June 2022 IEP stated that his functional/instructional level in reading was either at a second or third grade level as a sixth grader. Despite the Student’s significant academic deficits and concerns raised by the Parent, the CSE did not recommend any additional special education services for either the 2021-22 or 2022-23 school year beyond the ICT program.

I find that the Student is entitled to an award of compensatory education based upon the two year denial of FAPE.^[6] I do not, however, believe the record supports the 800 hours recommended by the Director whose company the Parent seeks to provide the recommended services. The Director stated that the 800 hours could get him to grade level. But the caselaw does not support an obligation on the part of the District to ensure the Student achieves grade level through compensatory services. In addition, the Director testified that she did not compare her testing to prior testing because it was not the purpose of her evaluation to determine whether or not the Student made progress. But how can the Director make a reliable recommendation with regard to the Student’s entitlement to compensatory education without considering what progress he made during the two years in question? Although no standard scores were provided to compare, based upon the Director’s own testimony that the Student was testing on a 4th grade level in reading and writing and fifth grade level for math, there is some evidence that the Student has made some progress over the last two years. However, at the end of seventh grade, he was still being assessed at least three years below grade level in reading and writing. This was not challenged by the District. Based upon a review of the facts and circumstances, I will award the equivalent of five hours per week of 1:1 instruction by a special education teacher for the two school years (36 weeks each) that the Student was denied a FAPE for a total of 360 hours as an equitable remedy.

The Parent did not offer testimony regarding a need for compensatory services in speech and counseling and does not request compensatory counseling or speech services in her closing brief. The Parent testified that the Student did receive his recommended counseling and speech services during the 2022-23 school year. I find no basis in the record for an award of compensatory speech or counseling services.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby: ORDERED that the District shall provide the student with compensatory education services in the form of 360 hours of 1:1 instruction by a certified special education teacher selected by the parent; and IT IS FURTHER ORDERED that the compensatory education shall expire two years from the date of this decision.

SO ORDERED.

DATED: November 10, 2023

Lisa Rusk, Esq., IHO

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

APPENDIX A – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Exhibit Date Description # of Psychoeducational Evaluation 5.14.2019 5 pages

B. Individualized Education Program 3.19.2020 13 pages

C. Individualized Education Program 3.18.2021 16 pages

D. Psychological report 1.12.2022 8 pages

E. Psychoeducational evaluation 1.24.2022 6 pages

F. Educational evaluation 2.2.2022 3 pages

G. Teacher report 2.2.2022 2 pages

H. Individualized Education Program 2.17.2022 15 pages

I. December 2021- Speech and Language Evaluation February 2022 15 pages

J. Team Conference Summary 4.1.2022 2 pages

K. May-June 2022 Speech and Language evaluation 16 pages

L. Individualized Education Program 6.13.2022 18 pages

M. 2021-2022 NYS State Assessment Results Spring 2022 2 pages

N. Correspondence from [REDACTED] 6.26.2023 1 page

O. Request for Impartial Hearing 8.2.2023 8 pages

DISTRICT EXHIBITS

# DOCUMENT DESCRIPTION DATE PAGES

1. Individualized Education Program 2021-2022 03/18/2021 16 pages DOE

2. Prior Written Notice 2021 03/22/2021 9 pages DOE

3. Individualized Education Program January 2022 01/03/2022 13 pages DOE

4. Individualized Education Program February 2022 02/17/2022 15 pages DOE

5. Individualized Education Program June 2022 06/13/2022 19 pages DOE

6. Prior Written Notice January 2022 01/03/2022 12 pages DOE

7. Prior Written Notice February 2022 02/18/2022 12 pages DOE

8. Prior Written Notice June 2022 06/13/2022 12 pages DOE

9. Special Education Recovery Services 11/04/2021 3 pages DOE

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

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

[4] This request was withdrawn at hearing (T:34).

[23] school year (T:47). She testified that he also received the 20 hours of special education recovery service that was recommended in November of 2021 during school (T:48). She clarified, however, that he did not receive all of the 20 hours because the teacher was absent. She did not know how many hours he received, but it was not enough (T:49-50). [REDACTED] (hereinafter referred to as “the Director”) testified that she has a doctorate in education and is the founder and director of [REDACTED], specializing in 1:1 tutoring to special education students using research-based multisensory techniques since 2004 (T:52- 53,56). One method her tutors employ is the Orton-Gillingham (“OG”) method for reading and spelling, along with a similar methodology for reading comprehension, writing and math. (T:54). The Director testified that she has been conducting educational evaluations for approximately 20 years. She evaluated the student on June 23, 2023 (T:56). She reviewed documents, including prior IEPs and evaluations and administered the Wide Range Achievement Test (“WRAT”) to assess his reading, spelling and math computation skills and the Qualitative Reading Inventory (“QRI”) (T:75, 59). She testified that his scores were at a low 4th grade level for decoding, mid-fourth grade level for spelling and upper 5th grade level for math (T:57). In the Test of Written Language (“TOWL”), his scores were in the low 4th grade level. In reading comprehension on the QRI, he scored on the 4th grade level (T:58).

[6] The Parent does not seek an award of compensatory speech or counseling in its closing brief.