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CASE NUMBER: 605229 - NYC: 252621
FINDINGS OF FACT AND DECISION
Student’s Name [1]: [REDACTED] (“Student”)
0F
Date of Birth: [REDACTED]
School District: # [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: 08/16/2023
Date(s) of Hearing: 10/19/2023
Actual Record Closed Date: 11/25/2023
Date of Decision: 11/25/2023
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
OCTOBER 19, 2023:
For the Student:
[REDACTED] (hereinafter referred to as “Parent’s representative”)
For the Parents:
[REDACTED] (hereinafter referred to as “Parent’s Witness”)
For the Department of Education:
[REDACTED] (hereinafter referred to as “District’s representative”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a [REDACTED]-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”), with a disability classification of “Speech or Language Impairment” on Student’s latest IEP on record (Ex. P-F-1). Student’s eligibility for special education supports and services is not in dispute.
On August 16, 2023, Parent, through Parent’s representative’s firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on August 18, 2023, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parent sought, inter alia, an order that the DOE conduct certain evaluations and fund a neuropsychological evaluation, as well as an award for compensatory education for the 2021-2022 and 2022-2023 school years (“SYs”) (Ex. P-A-14, through P-A-16).
The impartial hearing took place on October 19, 2023.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the 1F 2F
New York State Education Law[4] and its implementing regulations. [5]
3F 4F
Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.[6] It was confirmed that the final relief sought is subsumed under the IDEA and therefore Section 504 is not
5F addressed separately in this decision (T. P4).
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative waived the District’s opening statement and reserved the right to cross-examine Parent and Parent’s Witness, and to make a closing statement (T. P13-15). District’s representative confirmed that the DOE rested its case (T. P16) and made a closing statement at the conclusion of Parent’s case (T. P51-P52).
Parent’s representative also waived an opening statement (T. P13). Parent’s representative submitted twelve documents for admission to the record and there were no formal objections raised to any of the proposed exhibits. The twelve exhibits that are admitted to the record are listed below (see Appendix B). There were two witness affidavits included in Parent’s disclosure (Ex. P-K, & P-L). Parent’s Witness testified and was cross-examined by District’s representative (T. P23-P42). Parent was also cross-examined by District’s representative (T. P46-P50). All Parent’s disclosed documents, including the two affidavits, were admitted to the record in support of Parent’s case (T. P17, P18, P23, & P46). Parent’s representative confirmed that Parent rested Parent’s case (T. P50) and made a closing statement (T. P52-P62).
ISSUES IN DISPUTE
The parties confirmed at the prehearing conference held on September 18, 2023, that a few matters had been resolved but that two outstanding issues would proceed to hearing, namely Parent’s entitlement to: i) a neuropsychological evaluation; and ii) compensatory tutoring services (T. P2).
OUTCOME
Given the DOE’s concession that it failed to provide Student with a FAPE for the 2021-2022 and 2022-2023 SYs, and the evidence on record, I have determined that Parent is entitled to certain relief.
LEGAL FRAMEWORK
A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits [7]. 6F
If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits [8]. The IDEA directs that, in general, an IH officer’s decision must be made on 7F substantive grounds based on a determination of whether the student received a FAPE [9]. 8F
A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” [10]. To show a denial of a FAPE based on a failure to 9F implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP [11]. Courts have held that it must be ascertained whether the aspects of the IEP
10F that were not followed were substantial, or in other words, “material” [12]. 11F
The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student. [13]
12F
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[14] 13F
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 direct funding for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement – which is not applicable in this case.[15] 14F
FINDINGS OF FACT AND DECISION
[I] Denial of a FAPE:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[16] 15F
The DOE elected to concede that it failed to provide Student with a FAPE for the 2021-2022 and 2022-2023 SYs. Given the DOE’s concession, it has not discharged its burden in these proceedings to establish that it provided Student a FAPE for the two SYs at issue.
In the circumstances, I find that there was a denial of a FAPE for the 2021-2022 and 2022-2023 SYs and the District did not discharge its burden in this regard (which in any event the record established).
[II] Appropriate Remedies: Compensatory Education and Services
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[17] The compensation must be designed to “make up” for the past denials of a FAPE and place the 16F student in the position the student would have been had the District complied with its obligations under the IDEA and the Education Law.[18] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the 17F 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.”[19] 18F
The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[20] The compensation can also be awarded by either a 19F “quantitative” approach (provided equal to the period of the deprivation of a FAPE or equitable services) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the deprivation of a FAPE).
In New York, when there is a denial of a FAPE, and compensation is the appropriate remedy, the burden lies with that District to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [the student] would have been but for the denial of [a] FAPE.”[21] 20F
Parent’s Witness testified by affidavit - and was called for cross-examination and reexamination (T. P23-P42) - inter alia, as to (Ex. P-K): Her title, name Director at the Provider, which has been accredited by the Association; her education and duties, including conducting student evaluations and parent meetings, programming, reviewing evaluation results, and liaising between parents, schools, and the Provider; how she participates in and conducts assessment training through the Provider; and how she has been personally evaluating students at the Provider since November 2013.
How she has contact with teachers and has participated in IEP meetings at a parent’s request regarding students who are currently enrolled at the Provider; how she provides school staff with information regarding what a student is working on at the Provider and the progress that the student has made at the Provider; how generally the Provider requests a student’s IEP prior to conducting an academic evaluation and the evaluator reviews that document, as well as any other documentation provided by the parent; how after a student is evaluated at the Provider, the student’s raw data from the evaluation is input into a computer program which then generates an evaluation report; and how the report also includes handwritten observations of the student during the evaluation.
Her familiarity with Student and Parent, having had an opportunity to review the content of the evaluation and results conducted by Evaluator from the Provider on or about December 27, 2022 (“the Evaluation”), as well as Student’s December 24, 2022 IEP (Ex. P-H, & P-F, respectively); how she knows how to interpret those results; and how during the Evaluation, the Evaluator administered the following assessments: Slosson Oral Reading Test (“SORT”), Informal Reading Inventory (“IRI”), 3 Star Achievement Test, Writing Sample, and the [REDACTED] Math Placement Exam.
How the Provider’s academic evaluations are skills-based and evaluate the skills that a student requires in order to meet the expectations of the Common Core State Standards Initiative; how the Provider’s Math Placement Exam in particular is tied to the skills required to meet Common Core requirements; how all of the assessments administered by the Provider were created to be administered to students with special learning needs as well as to students with general learning needs; how the assessments assess the skill requirements for each grade; and how the prescribed programs are then individualized based on a student’s learning needs, whether a student has special learning needs or is a neurotypical student.
How the computer printout of the raw and standard score results of Student’s December 2022 academic evaluation (Ex. P-H), were generated as follows: the information from the hard copy of Student’s tests, or raw scores, were inputted into a computer system which generated the standard score data based upon a computer algorithm; how based upon the results of Student’s December 2022 Provider evaluation, the Provider recommended that Student required a total of 1,086 hours of tutoring to teach Student the academic skills Student was missing, calculated as follows: 900 hours of a verbal program (90 hours Core Reading program, 700 hours Splinter Skills; 60 hours Vocabulary/Word Attack/Spelling, and 50 hours Writing) designed to address Student’s unique needs; and 186 tutoring hours were recommended to address thirtyfour deficient math skills.
How the recommended hours can be broken down further as follows: Student requires 90 hours of the Core Reader program, based upon an estimated 15 hours of tutoring necessary to teach Student the skills Student is missing in each of 6 curriculum pieces; 700 hours of Splinter Skills based upon an estimated need of ten hours per grade level per skill, for example, with respect to the “Working Within Words” splinter skill, Student will require approximately 10 hours to acquire the fourth-grade skills, 10 hours to acquire the fifthgrade skills, 10 hours to acquire the sixth-grade skills, 10 hours to acquire the seventh-grade skills, and 10 hours to acquire the eighth-grade skills; how this hourly breakdown applies to all 14 splinter skills that Student is missing; 60 hours of Vocabulary/Word Attack/Spelling Skills, which the Provider estimates will take Student
15 hours to acquire the skills contained in each of 4 workbooks; and 50 hours of Writing skills, as Student is missing fundamental writing skills such as how to write a sentence, how to use appropriate grammar [22], how21F to write an essay, etc., with the skills that Student is missing being contained throughout 5 separate workbooks in the Provider’s writing program, with the Provider estimating that it will take 10 hours to acquire the skills contained in each of 5 workbooks.
How the Provider also recommended 186 tutoring hours to address thirty-one deficient math skills, with the Provider estimating that it will take Student six hours to acquire each of the thirty-one missing skills, which include Advanced Multiplication Division Computation and Word Problems, Fractions, Decimals, Precent, Ratio, etc.
How according to the Slosson Oral Reading Test Student earned a grade equivalence of 3.2 which was 6.2 grade levels below Student’s desired student grade level at the time of the evaluation, and in Student’s case, Student was unable to read many of the words off the page, and struggles to independently read and comprehend; how during Student’s December 2022 IRI assessment, the passages used were at seventh, eighth and ninth grade levels, which were chosen to represent past, present and future grade levels, with Student comprehending between forty and seventy percent of what was heard on the listening portion of the evaluation, and between ten and eighty percent of what Student read on the silent portion of the assessment; and how it is imperative that Student be able to read and effectively comprehend material Student reads silently, as the grade levels increase for Student, there is less opportunity for reading aloud and a higher demand for silent reading either in class or as a homework assignment.
How Student earned “very poor” scores in the twelfth percentile in both Star Reading and Star Math in the Star Achievement Test, which is below the goal score of 85%; how the Writing Sample evaluates grammar, spelling, punctuation, sentence structure, vocabulary, organization, detail development, logic, relevancy of material presented to the topic, clarity and style appropriate to grade level; how Student’s writing sample was determined to be “poor”; how Student was expected to write an essay that included an introduction, detailed supporting paragraphs, and a conclusion paragraph and was unable to do so; how writing is the active form of reading, so the Provider’s focus is first on reading and reading comprehension and that once a student has acquired those skills, the student can begin working on writing, but Student is not yet at that point; and how Student did not meet the expectations for the ninth grade based on the Provider’s Math Placement Exam, and exhibited a significant lack of understanding and knowledge with most of the skills tested, all of which should have been acquired by the time of the evaluation.
How on December 26, 2022, Parent paid a $95.00 evaluation fee via credit card for Student’s Provider evaluation; how on January 11, 2023, Parent obtained a loan in the amount of $16,200.00 for Student’s enrollment fee at the Provider and Student’s initial 1:1 tutoring; how on August 16, 2023, Parent made an additional payment of $1,252.00 for additional 1:1 tutoring; and how between December 2022 and August 2023 Parent accrued $15,053.00 in tuition and fees for 1:1 tutoring obtained at the Provider.
How Parent paid for and Student received 176 hours of 1:1 tutoring at the Provider; and how the Provider recommends that Student still requires the remaining 910 hours of recommended 1:1 tutoring to acquire the fundamental skills Student is still missing but needs in order to independently access the curriculum in school; and how the cost of the individual tutoring is $97.00 per hour, there also being an enrollment fee of $90.00 for every student.
How on January 2, 2023, Student began 1:1 tutoring at the Provider, including a program that focused on strengthening Student’s weaknesses, enhancing Student’s strengths and bolstering Student’s confidence by starting off at Student’s comfort level; how to address Student’s areas of weakness in reading, the Provider began working with Student on key comprehension skills, beginning at a fourth grade level, which was the level that the Provider identified as Student’s instructional grade level through the Evaluation; and how the Provider’s teachers are New York State certified for the population with whom they work, and thus, special education students are guaranteed a New York State certified special education teacher.
How Student’s progress in reading due to the provided tutoring has been significant; how Student began working in a “core reader” that addressed all reading skills just as Student would need to do when reading from a textbook; how Student continued to move as Student’s skills developed and is currently[23] at a 7th
22F grade level; how Student’s significant progress in reading is also clear from Student’s performance in the curriculum pieces utilized thus far in Student’s individualized Provider reading program, with Student earning scores: ranging between 58%-100% in a Level C / fourth grade level “New Practice Reader” curriculum piece; ranging between 47%-100% in the Level D (fourth/fifth grade level) “Reading for Concepts” curriculum piece; ranging between 70%-100% in the Level 5 (fifth grade level) “Core Spectrum Reading 2015” curriculum piece; ranging from 30%-100% at a Level F / sixth grade level and scores ranging from 0% to 100% at a Level G / seventh grade level, evincing significant progress in reading comprehension as evidenced by Student’s performance in the “Getting the Facts” Curriculum piece; ranging from 40%-100% as a Level F / sixth grade level in the “Getting the Main Idea” curriculum piece; and ranging from 40%-100% at a Level G / seventh grade level on the “Working Within Words” Curriculum piece.
How with respect to Student’s math skills, the Provider started Student with the most fundamental skills that Student had not yet acquired; how each time the Provider began instruction on a specific math skill, Student’s Provider teacher would administer a pre-test that further identified specific areas of weakness within the skill; how Student’s Provider teacher worked with Student on those specific areas, and once Student appeared ready, Student’s Provider teacher administered a post-test; and how Student only moved on to the next skill when Student demonstrated acquisition of that skill.
How Student’s progress in math at the Provider has also been clear, with Student making significant progress in math word problems skills and in math computation skills, and earning scores: ranging between
84%-100% in the “General Math Concepts” curriculum piece at a third through fourth grade level; ranging between 83%-100% in the “Advanced multiplication word problems” curriculum piece at a third through fourth grade level; ranging between 52%-100% at a third through fourth grade level in the “Advanced
Addition, Subtraction & Multiplication” curriculum piece; and ranging between mid-third through mid-fourth grade levels in the “Advanced Division – Whole Numbers” curriculum piece.
Parent testified by affidavit - and was called for cross-examination (T. P46-P49) - inter alia, as to (Ex. P-L):
How Student started the 2021-2022 SY with the January 2021 IEP in place; how by Parent’s own observations, Student struggled academically throughout the 2021-2022 SY with reading, particularly with words that were not very basic words, and consistently read below grade level; how Student had difficulty understanding what Student was reading and continued to struggle with identifying the main idea, and struggled to answer questions based on text that was read; how Student needed significant help throughout the 2021-2022 SY with writing, and by Parent’s own observations, Student’s writing was illegible and sentences were not well constructed.
How by the end of the first quarter, Student’s report card stated that Student had a grade of “80” in ELA and a grade of “72” in math (Ex. P-E); how Parent disagreed with the accuracy of these grades and believed that they were inflated based upon Parent’s own observations of Student’s abilities at home and on objective evidence, such as despite a first quarter report card grade of “80”, in October 2021, Student performed at a third grade reading level on an I-Ready diagnostic, evidencing a year’s worth of regression from January 2021 (Ex. P-B-18; & P-D-3); and how by the end of the second marking period, Student’s grades in ELA and math had regressed to a “75” and a “65”, respectively (Ex. P-E-1).
How on January 10, 2022, the DOE conducted a three page Educational Evaluation that was limited to a parent interview, student interview, and the Wechsler Individual Achievement Test-Fourth Edition (“WIATIV”) (Ex. P-C); how the Educational evaluation noted that when presented with a list of real words in isolation to assess Student’s sight word vocabulary, Student had to “work hard to sound out low-frequency words, especially multi-syllabic words”, which did not surprise Parent and further supported Parent’s belief that Student’s grades were inflated.
How the evaluator reported that Student was below grade level with respect to oral reading fluency and explained that Student was not able to stay within the time limit allotted for the initial 7th/8th grade passage; how it was also reported that Student’s reading fluency gradually deteriorated even though Student was requested to read easier passages typically assigned to 5th/6th graders; and how Student took a long time when reading and made more decoding errors when Student was required to read multiple passages (Ex. PC-2, & P-C-3).
How Student also performed below grade level with respect math and Student’s ability to calculate using numerical operations such as addition, subtraction, multiplication and division, and made errors providing multiplication facts other than the 5s times table, struggled with completing long division, multiplying multidigit numbers and solving algebraic equations; how unsurprisingly Student’s writing skills were also determined to be below grade level (Ex. P-C-2, & P-C-3); and how Student exhibited the same difficulties during the evaluation that Student had at home, namely struggling with sentence structure, grammar, and punctuation (Ex. P-C-3).
How Student’s spelling was also deemed to be below grade level; how on January 10, 2022, the DOE amended Student’s IEP (Ex. P-D-23, & P-D-35), and that Student’s reading and math both remained at a fourthgrade level, which confirmed Parent’s observations that Student had failed to make progress in either subject during the 2021-2022 SY; how during the meeting, the January 2022 CSE discussed Student’s “Below Average” scores in all areas tested during the January 2022 academic achievement test (Ex. P-D); how the January 2022 CSE acknowledged that Student continued to struggle with basic reading, reading fluency, written expression, spelling and math, as well as with decoding; how it was also reported with respect to ELA that Student demonstrated effort but was distractable and required refocusing, as well as that Student struggled with remaining on task and focusing during class, but the DOE did not conduct any evaluations to figure out why Student was so distractible and it also failed to develop any IEP goals targeting this deficiency (Ex. P-B-2).
How the January 2022 CSE described Student’s writing as “basic in form and content. [Student] also needs to work on improving sentence structure, grammar, and punctuation”, as well as the fact that in school Student needed to be encouraged in proper word usage, proofreading, revising, and use of editing checklists when writing (Ex. P-D-3); how it was reported that in October 2021, Student was actually performing at a third-grade level in reading; and how, based only upon a comparison of this IEP (Ex. P-D) and Student’s January 2021 IEP (Ex. P-B-18), Parent realized at that Student had regressed; how the January 2022 CSE also acknowledged Student’s ongoing grammar difficulties, need to expand sentences, and failure to make progress towards vocabulary acquisition; and how the CSE had discussed Student’s vocabulary score on an October 2021 i-Ready diagnostic that suggested that Student’s substantial gaps in word knowledge made it very hard for Student to read for meaning.
How the January 2022 CSE discussed the fact that Student’s results on the October 2021 i-Ready indicated that Student needed support in literary skills and strategies such as analyzing story elements and connecting text and visuals; how Student continued to require assistance with analyzing cause-and-effect relationships and determining main idea; how with respect to math, the January 2022 CSE acknowledged that Student’s math skills were lower than expected (and highlighted Student’s other math deficiencies), although Student was able to recall “basic addition and subtraction facts” and the “easiest multiplication facts”, Student struggled to complete multi-step computations, understand and apply math concepts, and solve multi-step real life problems; and how the January 2022 IEP highlighted many of the same skills highlighted by the January 2021 CSE, which Parent believes shows, at best, maintenance of the status quo and not progress.
Student started the 2022-2023 SY with the January 2022 IEP in place; how based upon Parent’s observations, Student failed to make progress during the 2022-2023 SY; how by the end of the first marking period, Student earned scores of “72” in ELA and “70” in Math, and that these grades regressed to “65” by the end of the second marking period; how Student’s performance and academic struggles from the prior SY continued into the 2022-2023 SY; how on December 14, 2022, Parent participated in a CSE that failed to include a school psychologist to develop Student’s IEP for the remainder of the 2022-2023 SY; and how the December 2022 CSE described Student’s writing skills as being “very limited” (Ex. P-F-2), specifically, Student could only write 2-3 sentences using simple vocabulary and did not expand on ideas.
How the CSE reported that even when provided with organizers and when paragraphs are written step by step, Student still has difficulty writing a paragraph on a given topic and “require[d] a lot of assistance to produce a minimal paragraph”; how the December 2022 CSE also acknowledged that when presented with word problems, Student had difficulty identifying key words and/or phrases to ensure that Student used the correct operation to solve the problem; how the December 2022 CSE acknowledged that Student needs to continue working on expanding answers to comprehension questions, both orally and written; how Student needs to continue to work on identifying text evidence to support Student’s reasoning and needs to incorporate varying sentence structure to increase Student’s writing skills; and how the December 2022 CSE continued that, especially during writing tasks, Student will use very simple sentences or not include enough details to compose a complete paragraph.
How Parent was extremely concerned by the December 2022 CSE’s acknowledgement that Student’s reading and math levels had regressed to third grade levels; and how after attending this meeting and hearing the details of Student’s regression and failure to make progress towards Student’s IEP goals, without any assistance from the DOE, Parents[24] had Student evaluated at the Provider and enrolled Student in 1:1 private 23F tutoring at personal expense, where they finally started to see Student beginning to make progress in reading and math.
How it was clear to Parent that the skills Student was reviewing at the Provider were starting to help Student understand the basic concepts that were missing; how Parent did see some improvement in Student’s reading skills during the third and fourth quarters and Student did earn grades of “88” and “80” respectively; how Parent however, to the extent that Student made progress in reading by the end of those marking periods, attributes that progress to the private tutoring Student received from the Provider which began in January 2023; how Parent noticed Student making progress in math at the Provider and was not surprised to see that Student earned a grade of 86 in math for the fourth quarter, which Parent attributes all progress in math to the private individualized tutoring that Student receives at the Provider.
In crafting a remedy, I am mindful that “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”[25] 24F
Given the duration of the deprivation and the evidence on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e. the quantitative approach). The DOE provided no evidence to substantiate a reduction of any proposed compensatory hours to be awarded, but did cross-examine Parent’s Witness, and Parent.
District’s representative asserting in closing that the DOE is objecting to the calculation of hours from the Provider, namely 1,086 hours of compensatory tutoring on two grounds. Firstly, that it was not clear how the testing was conducted and secondly, based on the way the hours were calculated.
As regards the former, it was questioned whether there were enough breaks provided and whether it was tailored for this particular student (T. P51). I do not, for these reasons, find that the testing was unreliable. The testing was conducted over a three-hour period and Parent testified that there were small breaks (T. P48). Parent’s Witness testified that these are standardized tests, and so they are not meant to be individualized.
Curiously, however Parent did not submit testimony by the person from the Provider who conducted the testing of Student, namely Evaluator, but instead called a director at the Provider as a witness. Parent’s Witness was unable to answer specifics regarding the testing that took place with Student and had to then speak to general practices that the Provider would ordinarily follow when testing a student. Whilst I have no reason, based on the record, to doubt that the tests were not properly conducted or there was some reason why the Evaluator was not called as a witness (and I afford Parent the benefit of the doubt in that regard), I am inclined to view the recommendations made with some level of circumspection.
As regards the calculation of hours, District’s representative asserted that “it’s almost like something from the Willy Wonka Factory. You know, you just kind of put into this computer and bang, it just comes out with 1,096. But it's not clear how those hours are being developed. And again, it's based just on a three-hour evaluation without the benefit of even a benefit of even a classroom observation. It seems that it'll be hard to determine what help that [the Provider] can provide when it's not entirely clear what the student is learning at the school and how the program can best benefit what the student is learning” (T. P51, & P52).
Parent’s Witness testified that the calculation resulted from the raw scores being inputted into the Provider’s proprietary software, which then came up with the required number of hours that Student needs. There is no evidence of what computer algorithm was used, or any rules or parameters set, or any assumptions utilized, or any indication how the program arrives at the magic number based on the raw scores.
Additionally, I am mindful that the Provider is not a disinterested third party. It is the very juristic person that will be paid, and benefit financially therefrom, for the hours of compensatory hours that it recommends. Furthermore, the Provider’s stated mission “is to give every child the best education possible” (Ex. P-J-1). This is born out by the approach taken by the Provider whereby the Student is required to demonstrate mastery.
“[The Provider] only moves on to the next skill when the Student demonstrates mastery by scoring 100% accuracy on the post-test. If the Student does not score 100% on the post-test, [the Provider] resume instruction, focusing on the areas that were incorrect” (Ex. P-J-4). Not even non-special education students are required to achieve such a high level of mastery of skills before advancing grade levels and whilst it may benefit the Student, the DOE is not required to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in [Student’s] areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.” 2625F
This also highlights another concern regarding the Provider’s recommendation, namely that the focus of the hours is to get Student to grade level (Ex. P-H-2). Contrary to Parent’s representative’s assertion that the skills that Student is working on are the skills should have learned but for the denial of a FAPE (T. P55), the hours sought are disconnected to the denial of a FAPE and the DOE’s breach or failures that occurred during the two SYs, and instead focus of getting Student to grade level. While from a parent’s perspective that goal may be paramount, that is not the purpose of compensatory education and services.
There is authority that also bears mentioning in this regard, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]” (my emphasis).
The purpose of compensatory education is not to punish the District [27], and the DOE is also not required to 26F show that it attempted to “maximize” the potential of a student with disabilities.[28] 27F
26 See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
In determining an appropriate award of compensatory education hearing officers and Courts have considered the student’s rate of progress [29]. Whilst I do not find, as asserted by District’s representative, that Parent’s 28F requested relief should be denied due to any of the above factors, they certainly warrant an adjustment of the amount to be awarded.
Given the progress that Student made since Student commenced 1:1 tutoring on January 2, 2023, at the Provider, which Parent attributes all of Student’s progress in reading and math to the private tutoring which began on January 2023 (Ex. P-J-20, & P-J-21), I find that an appropriate award of compensatory tutoring hours in the circumstances of this case is 704 hours[30] in total. My award caters for reimbursement of all services paid for by 29F
Parent since Student commenced receiving 1:1 tutoring services, with the balance being directly funded to the Provider.
Parent confirmed in cross-examination having a contract with the Provider for the provision of these services (T. P46). Parent’s Witness confirmed the rate of the tutoring service in the amount of $97.00 per hour (Ex. P-K-9), which rate I find to be reasonable, and not excessive. Parent’s Witness confirmed that all the Provider’s teachers are New York State certified for the population they serve, and that Student would therefore be guaranteed a New York State certified special education teacher (Ex. P-K-9).
I also find the cost of the enrollment and academic evaluation fees Parent incurred in the sum of $90.00 and $95.00, respectively, are reasonable, which costs are also being reimbursed. Parent also sought an order for the DOE to fund transportation costs to and from all sessions (Ex. P-A-15), which is also being granted.
[III] Appropriate Remedies: Neuropsychological Evaluation
An IEE is an individual evaluation of a student with a disability, or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student.[31] If the parent disagrees with an evaluation obtained by the school district, the parent has a right to 30F obtain an independent educational evaluation at public expense.[32] 31F
An IEE may be requested by parents [33], or by an impartial hearing officer.[34] The Regulations do not provide
32F 33F limitations or guidance about hearing officer requests or directives for IEEs under 8 NYCRR § 200.5(g)(2).
Although the Parent’s DPC initially included relief that the DOE conduct a full battery of evaluations, including but not limited to a speech language and occupation therapy evaluation, the only IEE that Parent was seeking in these proceedings (not otherwise addressed through resolution) was that the DOE fund a neuropsychological evaluation by a provider of Parent’s choosing at the provider’s normal and customary rate (Ex. P-A-14).
Parent had testified by affidavit, inter alia, as to: How on January 15, 2021, Parent participated in a CSE to develop Student’s IEP, which was in place during the first half of the 2021-2022 SY; how the DOE did not conduct any evaluations of Student prior to holding this January 2021 CSE meeting; how at the time of that meeting, based on Parent’s recollection, the most recent cognitive and achievement testing was obtained as part of a Psychoeducational Evaluation conducted on December 3, 2018; how prior to the start of the 2021-2022 SY, the DOE failed to conduct any updated evaluations of Student, despite the fact that Student’s IEP mandated speech therapy and occupational therapy; and how by Parent’s recollection the DOE had not conducted these evaluations of Student in at least three years.
How the DOE failed to conduct any updated evaluations of Student prior to the start of the 2022-2023 SY; how the December 2022 CSE also reported that Student continued to struggle with maintaining focus and required redirection to task, which was an ongoing difficulty for Student which the DOE failed to address; and how after the December 2022 CSE’s acknowledgement of this ongoing struggle, the DOE again failed to evaluate Student to determine why Student had focusing difficulties and the December 2022 CSE failed to develop any IEP goals targeting this deficiency.
How Parent believed that due to the DOE’s failure to conduct updated evaluations, the January 2022 CSE had insufficient information to allow it to draft appropriate and sufficient IEP goals targeting all of Student’s deficiencies and which were attainable in one year; how other IEP goals were not being met, were being recycled and/or not being appropriately updated; and how despite Student’s failure to make progress, and without convening an annual CSE team, the January IEP modified Student’s special education program by reducing Student’s ELA services and changed Student’s OT therapy from individual to group.
How without updated evaluations, Parent believes that the December 2022 CSE was unable to develop appropriate IEP goals targeting all of Student’s unique needs, how Parent believes that due to the NYCDOE’s failure to properly evaluate Student, provide Student with a special education program and services that would result in progress, and failure to develop an IEP that targeted Student’s unique needs, Student failed to make progress during both SYs at issue.
The IDEA and the regulations are clear that there are two options when a parent requests an independent evaluation - first, the District can file an impartial hearing request to defend its evaluation, which did not happen here, or second, the District can grant the independent evaluations, which also did not happen here. That, however, is not the end of the enquiry. It is a prerequisite for a parent requested IEE that the parent must be found to have disagreed with the DOE’s evaluation. 35 34F
For the 2021-2022 SY (at least prior to January 10, 2022, and for three years prior thereto), there was no evaluation conducted or on record and therefore no evaluation to disagree with. Parent disclosed the Educational Evaluation Report dated January 10, 2022 (Ex. P-C). This report documents that Student “was referred for a mandated three-year evaluation in order to determine the amount of progress that [Student] had made in the past three years” (Ex. P-C-1).
The regulations do not speak to how a parent must manifest this disagreement to the district [36]. It has been 35F held that a parent does not need to use a specific word or phrase to express parent’s disagreement with a district evaluation. [37]
36F
35 See D.S. v. Trumbull Bd of Educ., 975 F.3d 152 (2d Cir. 2020): “Because the only evaluations that trigger a parent's right to an IEE at public expense are the initial evaluation and triennial reevaluations discussed in Section 1414 of the Act, a parent's right to an IEE at public expense ripens each time a new evaluation is conducted. The time within which a parent must express their disagreement with an evaluation and request an IEE depends on how frequently the child is evaluated. By default, triennial reevaluations must occur at least once every three years. 20 U.S.C. § 1414(a)(2)(B)(ii). Where, as here, a child is evaluated according to the default evaluation timeline, the parent must disagree with an evaluation within that three-year timeframe. By contrast, should a parent and school agree that the child be evaluated on a more frequent basis, see id. § 1414(a)(2)(A), (a)(2)(B)(i), the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs. For example, if a child is reevaluated each year, the logical time frame within which to contest the evaluation is one year. Otherwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation. The timeframe within which a parent can disagree must be adjustable because the evaluation that a parent may contest is a moving target.” (my emphases).
The question of whether an IEE request can be made for the first time in a DPC has previously been addressed where the State Review Office initially made clear that a request for IEEs can be made for the first time in a DPC; and that where the parent requested the IEE in a DPC notice, it is incumbent on the District to respond [38]. In a 37F more recent case[39] however, the SRO noted:
38F “In past decisions SROs, including the undersigned, have permitted a parent to request a district-funded IEE in a due process complaint notice in the first instance (see, e.g. Application of the Dep't of Educ., Appeal No. 21-135); however, I have also expressed reservations that this is not the process contemplated by the IDEA and its implementing regulations (Application of the Dep't of Educ., Appeal No. 23-034; Application of a Student with a Disability, Appeal No. 22-150) and my observation is that the approach has caused more problems than it resolves (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]). The statute clearly indicates that a district is required to either grant the IEE at public expense or initiate due process to defend its own evaluation of the student, but a district need only do so "without unnecessary delay" (34 CFR 502[b][2]). The process envisions that a district has an opportunity to engage with the parent on the request for an IEE at public expense outside of due process litigation, and if a delay should occur as a result, one of the fact-specific inquiries to be addressed is whether the IEE at public expense should be granted because the district's delay in filing for due process was unnecessary under the circumstances (see Cruz v. Alta Loma Sch. Dist., 849 F. App'x 678, 679-80 [9th Cir. 2021][discussing the reasons for the delay and degree to which there was an impasse and finding that the 84-day delay was not an unnecessary delay under the fact specific circumstances]; Pajaro Valley Unified Sch. Dist. v. J.S., 2006 WL 3734289, at *2 [N.D. Cal. Dec. 15, 2006] [finding that an unexplained 82-day delay for commencing due process was unnecessary]; Alex W. v. Poudre Sch. Dist. R-1, 2022 WL 2763464, at *14 [D. Colo. July 15, 2022] [holding that simply refusing a parent's request for an IEE at public expense is not among the district's permissible options]; MP v. Parkland School District, 2021 WL 3771814, at *18 [E.D. Pa. Aug. 25, 2021] [finding that the school district failed to file a due process complaint altogether and granting IEE at public expense]; Jefferson Cnty. Bd. of Educ. v. Lolita S., 581 F. App'x 760, 765-66 [11th Cir. 2014]; Evans v. Dist. No. 17 of Douglas Cnty., Neb., 841 F.2d 824, 830 [8th Cir. 1988]). As the Second Circuit observed, at no point does a parent need to file a due process complaint notice to obtain an IEE at public expense (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 168-69 [2d Cir. 2020]). My continued study of the judicial and administrative guidance on the topic has led me to change my previous approach of allowing the parent to initially disagree with a district evaluation and request an IEE in a due process complaint notice (without attempting to raise such disagreement with the district first)” (my emphasis). Whilst Parent disagreed with the accuracy of the Student’s grades in the various report cards, disagreed with the CSE’s determination to reduce services, and disagreed with the claim that Student did not require additional services to address lost skills and/or lack of expected progress due to periods of remote and blended learning beginning in March 2020, there is no express assertion either in the DPC, in any of the IEPs on record, or in Parent’s affidavit that Parent disagreed with the DOE’s Educational Evaluation Report (Ex. P-C).
For this reason, as well as the fact that one of the purposes or reasons for granting an IEE – “[t]he IEE process attempts to level the playing field between parent and government by securing a parent’s ability to obtain an independent assessment of their child’s disability if the school’s falls short. It provides “parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion,” and it ensures that parents “are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.””[40] - cannot be 39F served in these proceedings as the proceedings are now over, Parent’s request for a neuropsychological evaluation to be ordered at the DOE’s expense is hereby denied.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER:
Based upon the above Findings of Fact and Decision, it is hereby:
1. ORDERED that, the DOE shall reimburse and/or fund no more than 704 (seven hundred and four) hours of 1:1 tutoring services that commenced during January 2023 and are being provided by the Provider to Student, by a New York State certified special education teacher, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, at the an enhanced rate of $97.00 (Ninety-Seven Dollars) per hour, by making payment directly to:
a) Parent for tutoring services paid for by Parent, upon receipt by the DOE’s Implementation Unit of copies of the Provider’s invoices and Parent’s proof of payment therefor; b) The Provider, for services provided to Student that have not been paid for by Parent, upon receipt of appropriate documentation required by the DOE’s Implementation Unit in support of such services having been provided to Student.
2. FURTHER ORDERED that, the bank of compensatory 1:1 tutoring services set out in #1 of this Order shall expire after 2 (two) years from the date of this Order.
3. FURTHER ORDERED that, the DOE shall fund the necessary transportation costs to and from the services provided by the Provider through the supply of MetroCard(s).
4. FURTHER ORDERED that, the DOE shall reimburse Parent the enrollment and academic evaluation fees paid in the sum of $90.00 (Ninety Dollars) and $95.00 (Ninety-Five Dollars), respectively.
SO ORDERED.
DATED: November 25, 2023
__H.A.C._ (Signed Electronically) ___
Impartial Hearing Officer
Harry A. Christodoulou
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 [REDACTED]
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
P-A. Due Process Complaint 08/16/2023 17 pages
P-B. Individualized Education Program 01/15/2021 21 pages
P-C. Educational Evaluation Report 01/10/2022 3 pages
P-D. Individualized Education Program 01/10/2022 25 pages
P-E. Final Report Card 06/21/2022 2021-2022 1 page
P-F. Individualized Education Program 12/14/2022 22 pages
P-G. Second Marking Period Report Card 02/27/2023 2022-2023 1 page
P-H. The Provider’s Evaluation Report 12/27/2022 6 pages
P-I. The Provider’s Financial Report 09/13/2023 4 pages
P-J. The Provider’s Progress Report 08/24/2023 5 pages
P-K. Affidavit of Parent’s Witness 10/10/2023 10 pages
P-L. Affidavit of Parent 09/27/2023 23 pages
DOE’S EXHIBITS
- - - -
IHO’S EXHIBITS
- - - -
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution. Capitalized words not explicitly defined right after the word(s) in brackets are defined in the table in Appendix A – Redaction Identification Page on page 24.
[2] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504- delegation-Signed.pdf.
[7] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 20 U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].
[9] 20 U.S.C. § 1415[f][3][E][i].
[10] Rowley, 458 U.S. at 203.
[11] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]
[12] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].
[13] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[14] School Committee of the Town of Burlington v. Department of Ed., Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[15] NYS Educ. Law § 4404(1)(c). The burden was confirmed by the parties’ representatives at the prehearing conference held on September 18, 2023 (T. P3, & P4).
[16] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[17] See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[18] P. v. Newington, 546 F.3d 111, Provider [2d Cir. 2008].
[19] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[20] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at Provider.
[21] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[22] Parent’s Witness clarified this sentence in her affidavit (T. P41, & P42).
[23] As at the date of the affidavit, namely October 10, 2023.
[24] Parent references to “we” and “they”, I assume included a reference to himself and Student’s mother, who was mentioned earlier in Parent’s affidavit (Ex. P-L-14).
[25] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[27] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].
[28] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[29] See SRO 23-028: “It was appropriate for the IHO to take into account the student's progress when calculating the compensatory award (N. Kingston Sch. Comm. v. Justine R., 2014 WL 8108411, at *9 [D.R.I. Jun. 27, 2014], adopted, 2015 WL 1137588 [D.R.I. Mar. 12, 2015] [finding that a request for compensatory education "should be denied when the deficiencies suffered have already been mitigated"]; Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 [D.D.C. 2013] [finding even if there is a denial of a FAPE, it may be that no compensatory education is required for the denial either because it would not help or because the student has flourished in the student's current placement]”.
[30] Four times the 176 hours (Ex. P-K-9) Parent had paid for, leading to the clear progress made by Student.
[31] 8 NYCRR § 200.1(z).
[32] 8 NYCRR § 200.5(g)(1).
[33] 8 NYCRR § 200.5(g)(1).
[34] 8 NYCRR § 200.5(g)(2).
[36] 8 NYCRR § 200.5(g); 34 CFR § 300.502(b)(1).
[37] See Genn v. New Haven Board of Education, 69 IDELR 35 (D. Conn. 2016) at pgs. 14 & 15, noting that “the Court is not persuaded that a parent must announce in a formalistic manner, "I, Parent, disagree with this assessment!" to be found to have disagreed in substance with the assessment”. The Court found that the parent had expressed disagreement in substance where a more in-depth analysis was sought where the parent felt the assessment was not sufficient to identify the student’s reading difficulties and had provided more than just a generalized request for more information.
[38] See for example Application of a Student with a Disability, Appeal No. 22-008.
[39] Application of a Student with a Disability, Appeal No. 23-018.
[40] D.S. v. Trumbull Bd of Educ. supra.