Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 252349

Student’s Name: [REDACTED] (Student)

Date of Birth: [REDACTED]

School District: New York City Department of Education (DOE)

Hearing Requested by: [REDACTED] (Parent)

Date Complaint Filed: August 4, 2023

Date of Hearing: October 10, 2023

Record Closed Date: November 20, 2023

Date of Decision: November 20, 2023

Impartial Hearing Officer: Amy Randhawa, Esq.

INTRODUCTION

This case concerns the Student whose eligibility for special education supports and services is not in dispute. The Parent, through counsel, filed a Due Process Complaint (DPC) alleging that the New York City Department of Education (DOE) failed to offer the Student a free appropriate public education (FAPE) for the 2021-2022 and 2022-2023 school years. Ex. A.^[1] The DPC alleges that during both school years, in addition to other substantive and procedural issues, the DOE failed to place the Student in an appropriate setting and failed to provide sufficient behavioral support. Id.

By way of relief, the Parent requests that the DOE fund a bank of 700 hours of compensatory one-to-one tutoring by a qualified provider of the Parent’s choosing at a rate not to exceed $150 per hour with no expiration date. Id. at 4; Tr. 36.

I find that: (1) the DOE conceded at hearing that it denied the Student a FAPE for the 2021-2022 and 2022-2023 school years; (2) the DOE did not carry its burden with respect to the relief; and, (3) the Parent’s requested relief is appropriate.

JURISDICTION

This due process hearing (DPH) was held, and a decision in this matter is being rendered pursuant to the IDEA, 20 U.S.C. § 1400 et seq., and its implementing federal regulations, 34 C.F.R. § 300 et seq.; Section 504 of the Rehabilitation Act of 1973; and New York State Education Law § 4404 et seq. and its implementing regulations at 8 NYCRR § 200.5 et seq.

PROCEDURAL HISTORY

The DPC was filed on August 4, 2023. The parties appeared for a pre-hearing conference on September 7, 2023 and a DPH on October 10, 2023. At the DPH, the Parent was represented by the Parent Attorney and the DOE was represented by the DOE Attorney. Tr. 16-17.

At the DPH, the DOE did not enter any exhibits into the record, did not call any witnesses to testify, and conceded the denial of a FAPE to the Student for the 2021-2022 and 2022-2023 school years. Tr. 19, 35. The DOE issued a joint opening/closing statement. Tr. 35-36.

Without objection from the DOE, the Parent entered exhibits A through P into the record, including testimony by affidavit from the Founder of the Tutoring Agency who evaluated the Student in September 2023 (Provider) (Ex. N). The Provider also testified at the hearing and was cross-examined by the DOE Attorney. Tr. 23-28. A Spanish interpreter provided interpretation services to the Parent; the Parent did not, however, testify. Tr. 16. The Parent issued a joint opening/closing statement. Tr. 36-38.

FINDINGS OF FACT

The Student is currently a [REDACTED]-year-old who is classified by the DOE as a student with an “Emotional Disability.” Ex. D:1. He has a history of academic retention for [REDACTED], and diagnoses of Attention-Deficit/Hyperactivity Disorder (ADHD), specific Learning Disorder with impairment in reading, written expression, and mathematics, severe, and Adjustment Disorder, unspecified. Ex. E:1-2, 14. For the 2023-2024 school year, the Student was recommended a 12:1:1 classroom in a District 75 DOE school with related services including a full-time behavior paraprofessional, individual counseling, and group speech-language therapy for the extended 12-month school year. Ex. D:24-25, 33.

The Student has documented mixed receptive-expressive language disorder; exhibits challenges in reading and focus and cognitive development; and presents with significant socialemotional challenges that impede his ability to engage productively in school, including staying in the classroom, forming positive connections with peers and adults, and progressing academically. Id. at 4, 9, 11.

The Student’s most recent Individualized Education Program (IEP), dated March 2023, notes that he was frequently absent from school, refused to attend speech therapy sessions, resisted taking notes or completing work in math, and refused to follow structure or rules at home. Id. at 4-6. In English, the Student lacked fundamental decoding skills and exhibited deficits in phonics, vocabulary, and reading comprehension. Id. at 5. The Student’s instructional reading level was at the first-grade level and his math performance was at the second-grade level, approximately 4-5 years behind grade level. Ex. D:31-32; Ex. L:2.

The Student’s teachers described him as often off-task, easily annoyed, sad/gloomy, withdrawn, anxious/restless, angry/defiant, verbally and physically aggressive, and self-abusive. Ex. D:8. Further, he refused to participate in class and complete assignments, required on task focus prompts, breaks, visual supports, and extended time to complete work, and exhibited difficulties with grammar, organizational skills, and comprehension. Ex. J:2; Ex. L:1.

On September 13, 2023, the Student was assessed in spelling, decoding, math, and reading comprehension skills by the Provider, a doctorate in education and master’s degree in special education who founded the Tutoring Agency which specializes in providing one-on-one tutorial support to students with special education needs. Ex. N ¶¶3, 14-15. The Student tested at a low third-grade level for decoding, spelling, and reading comprehension and a low fourth-grade level for mathematics. Id. at 16. Based on the Provider’s extensive experience conducting over five hundred student intakes, the Provider found that the Student is “in critical need of one-on-one tutoring in reading and spelling [and] receive structured, multi-sensory instruction to build his mathematics and reading comprehension skills.” Id. at 18. Specifically, based on the Student’s assessment results and a review of his educational records, the Provider recommended 700 hours one-on-one multi-sensory tutoring using the Orton Gillingham methodology to develop his decoding and spelling skills, as well as similar research-based, multi-sensory tools to build his reading comprehension and mathematics skills. Id. at 19. Further, the Provider credibly testified that the Tutoring Agency charges $150 per hour for one-on-one tutoring and that this rate is within, if not below, the typical market rate for similar services. Id. at 22.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

In New York, school districts have the burden of proof, including the burdens of persuasion and production, in IDEA due process hearings, except that a parent seeking reimbursement for a unilateral parental placement has the burdens of persuasion and production on the appropriateness of such placement. NYS Educ. Law §4404(1)(c). The DOE has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.

Provision of a FAPE

The 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 Cty. Sch. Dist. RE-1, 580 U.S. 386, 389 (2017).

Here, the DOE Attorney indicated on the record that the DOE concedes the denial of a FAPE to the Student. Tr. 19, 35. Further, the DOE did not enter any documentary or testimonial evidence into the record. I find that the DOE failed to offer the Student FAPE for the 2021-2022 and 2022-2023 school years. The only remaining issue is the appropriate relief for the denial of a FAPE.

Relief

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. When a school district denies a child a FAPE, the courts have “broad discretion” to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015), citing Carter, 510 U.S. at 15-16. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 454 (2d Cir. 2015).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he 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.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of 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.” Reid, 401 F.3d at 518, 524.

There are generally two approaches to fashioning a compensatory education award, the “quantitative” approach and the “qualitative” approach. M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996]; See, e.g., Reid, 401 F.3d at 518, 524. The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon individual assessments and is 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.” Reid, 401 F.3d at 518, 524. The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the sound discretion of the court to fashion a relief that is appropriate in light of the purpose of the Act, without articulating a specific formula or approach. Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008]. When calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current needs,” but the ultimate award “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. East Lyme, 790 F.3d at 457.

Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021]. The IHO may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation. M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017].

Here, I find that the DOE did not carry its burden to establish the appropriate relief needed to remediate the DOE’s failure to provide the Student a FAPE. The DOE did not call any of its own witnesses, propose any compensatory relief, or otherwise credibly develop the record to establish that the Parent’s request is inappropriate. Without any explanation the DOE simply argued at hearing at the Parent failed to sufficiently demonstrate the necessity for the extent of the requested tutoring services and asserted that the Parent’s relief should be denied in its entirety. Tr. 35-36.

I find that the Parent met her obligation to offer evidence in the record of a specific remedy for the denial of FAPE for the 2021-2022 and 2022-2023 school years. I find that the relief requested by the Parent is appropriate to remedy the Student’s documented academic deficits. Further, the granted relief is reasonably calculated to provide the Student with the skills that the Student would likely have accrued if the DOE had met its FAPE obligations and is supported by credible information included in the record regarding the Student’s current performance levels pursuant to September 2023 assessments.

As such, I am awarding 700 hours one-on-one tutoring by a provider of the Parent’s choosing at a rate not to exceed $150 per hour without an expiration date. The number of hours and rate are directly supported by the Provider’s credible testimony which was not refuted by the DOE through cross-examination or submission of any evidence.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered: (1) The DOE shall fund a bank of 700 hours of compensatory one-on-one tutoring by a provider of the Parent’s choosing at a rate not to exceed $150 per hour with no expiration date.

SO ORDERED.

DATED: November 20, 2023 s/ Amy Randhawa

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

Term Used In FOFD [REDACTED] Information

Student [REDACTED]

Parent [REDACTED]

Parent Attorney [REDACTED]

DOE Attorney [REDACTED]

Tutoring Agency [REDACTED]

Founder, Tutoring Agency/Provider [REDACTED] `

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE EXHIBITS: NONE

PARENT EXHIBITS

A. Letter Date Name/Description Number of Due Process Complaint August 4, 2023 5 pages

B. Individualized Education Program (IEP) June 22, 2021 29 pages

C. IEP June 16, 2022 25 pages

D. IEP March 23, 2023 34 pages

E. Neuropsychological Evaluation F January – March Documentation of Behavioral 28 2023 Concerns June 2, 2021 24 pages

G. DOE Classroom Observation January 31, 2023 2 pages

H. DOE Level I Teacher Vocational Report February 3, 2023 2 pages

I. DOE Functional Behavioral Assessment February 7, 2023 8 pages

J. DOE Teacher Report February 7, 2023 3 pages

K. DOE Social History February 28, 2023 2 pages

L. DOE Educational Evaluation Report March 6, 2023 2 pages

M. DOE Behavioral Intervention Plan March 23, 2023 10 pages

N. September 18, Affidavit, Provider 2023 3 pages

O. September 13, Raw Data, Tutoring Agency 2023 Educational Evaluation 3 pages

P. Resume, Provider May 17, 2023 4 pages

IHO EXHIBITS: NONE

Footnotes

[1] The DOE and IHO did not submit any exhibits. The Parent’s exhibits are referred to by the exhibit number, and if applicable, page number(s) and paragraph(s).