New York City Department of Education, Impartial Hearing Decision

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED a Minor, by and through his/her Parent(s),

PETITIONER

FINDINGS OF FACT AND DECISION

against

THE NEW YORK CITY DEPARTMENT OF EDUCATION,

Dustin Johnson, Esq.

Impartial Hearing Officer

RESPONDENT

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

II. Overview – Administrative Procedures

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local Committee on Special Education (“CSE”) that includes, but is not limited to, parents, teachers, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]-[3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of REDACTED (“Student”). On August 21, 2023, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) (See P-A).

On August 24, 2023, the undersigned IHO was appointed to preside over this matter. On September 21, 2023, a prehearing conference was held in the above matter (See Exhibit IHO-I). On October 12, 2023, an impartial hearing on the merits of the DPC was held and completed the same day.

By DPC dated August 21, 2023, the Parent alleged, generally, that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years and was seeking compensatory tutoring services as relief (see P-A).

IV. Findings of Fact

The student here has had a disability classification of Speech or Language Impairment (see DOE-1; DOE-3; DOE-7) as well as Learning Disability (see DOE-9).

On or around October 12, 2022, the student received an Independent Neuropsychological Evaluation (P-I). The Neuropsychological Evaluator found that based on this administration of the Differential Ability Scale-Second Edition (DAS II), the student's prorated General Conceptual Ability (GCA) places him in the Low classification, and his Nonverbal Cluster abilities and his Verbal Cluster abilities were in the Low range, and that the difference between these scores is not significant and thus suggestive of similar functioning of his verbal and non-verbal processes (P-I). Based on the Woodcock Johnson IV and the Bateria IV Woodcock-Muñoz, the student’s overall performance was as follows: the student exhibited low skills in written mathematical calculations, his decoding, word reading, reading comprehension and spelling skills were in the very low range, and these results are consistent with previous assessments’ results (P-I). The results of the NEPSY II confirm the student’s strengths completing visual tasks and his weaknesses in language and executive functions (P-I).

The Neuropsychological Evaluator diagnosed the student with a Specific Learning Disorder, with impairment in reading word reading accuracy, reading rate or fluency, reading comprehension, (consistent with dyslexia), a Specific Learning Disorder, with impairment in written expression, a Specific Learning Disorder, with impairment in mathematics, a Language Disorder, and Attention Deficit Hyperactivity Disorder (ADHD) combined type (P-I). The Neuropsychological Evaluator made various recommendations, including, inter alia, academic intervention to address his Learning Disabilities (including but not limited to decoding deficits which in turn prevent the achievement of appropriate reading), as well as a structured, multisensory special education program with a high ratio of teacher to students (P-I).

The student also received an evaluation from a for-profit tutoring facility, wherein that Evaluator concluded that the student is in critical need of one-on-one multi-sensory instruction to develop his reading and spelling skills, and that the student should also receive structured, multi-sensory instruction to build his writing, mathematics, and reading comprehension skills (P-J). The for-profit tutoring facility recommended that the student receive 900 hours of intensive one-on-one multisensory tutoring using the Orton Gillingham technique as well as similar multi-sensory instruction to build his writing, mathematics, and reading comprehension skills (P-J).

The Evaluator from the for-profit tutoring facility testified at these proceedings and noted specifically that her recommendation was for the type and amount of tutoring the student would benefit from and that the Evaluator was not necessarily recommending the tutoring come from her for-profit facility. She further noted that the student’s family was under no legal obligation to use her for-profit tutoring facility (see 10/12/2023 Transcript).

On February 4, 2021, the District’s CSE generated an IEP for the student with a Disability Classification of Speech or Language Impairment (see generally DOE-3). The February 2021 IEP recommended a placement in a 10-month NYC DOE Non-Specialized School, with Integrated Co-Teaching Services in Math, ELA, Social Studies, and Sciences, as well as related services of Counseling and Speech-Language Therapy (see generally DOE-3). The IEP also noted that this student’s Instructional/Functional Levels in Reading were at a 1st Grade Level and his Math was at a 2nd Grade Level (see DOE-3-16). The student’s prior February 2020, IEP also noted that this student’s Instructional/Functional Levels in Reading were at a Kindergarten Level and Math was at a 2nd Grade Level (see DOE-1-21).

On March 22, 2022, the District’s CSE generated an IEP for the Student with a Disability Classification of Speech or Language Impairment (see generally DOE-7). The March 2022 IEP recommended a placement in a 10-month NYC DOE Non-Specialized School, with Integrated Co-Teaching Services in Math, ELA, Social Studies, and Sciences, as well as related services of Counseling and Speech-Language Therapy (see generally DOE-7). The IEP also noted that this student’s Instructional/Functional Levels in Reading were still at a 1st Grade Level and his Math was still at a 2nd Grade Level (see DOE-7-15). The student’s subsequent June 2023, IEP again noted that this student’s Instructional/Functional Levels in Reading were still at a 1st Grade Level and his Math was still at a 2nd Grade Level (see DOE-9-21).

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are 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 (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

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]). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Additional Findings of Fact and Discussion

A. FAPE

Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District failed to offer the student a FAPE as required by Federal and State law for both the 2021-2022 and 2022-2023 school years.

At the May 16, 2023, hearing on the merits, the District offered no testimonial evidence and rested its case on the records presented; records, as discussed above, which show no progress in the student’s reading and math ability over several years.

Furthermore, the DOE representative in this matter appeared to misunderstand both the fundamental law of which these matters are litigated under as well as the relief being requested by the Petitioner. The DOEs main arguments at the hearing had little relevance to the matter at hand and misapplied the law that was used to justify the DOEs position. Additionally, the DOE representative repeatedly made arguments unrelated to the relief being requested by the Petitioner, evincing a fundamental lack of understanding of the case at bar.

In the August 21, 2023, DPC, the Parent outlines a litany of reasons why the NYC DOE failed to provide this student a FAPE and how the student failed to make educational progress (P-A).

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (See Educ. Law § 4404[1][c]).

Here, the DOE failed to offer any witness testimony or persuasive evidence to explain any of the reasoning behind the recommendations contained within the various IEPs, despite the fact that the very content of the IEPs indicated no progress in the student’s reading and math ability over several years.

A reviewing court may fairly expect those authorities 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.” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1002 (2017).

While certain limited circumstances may allow for the DOE to sustain its burden of production and persuasion on substantial and persuasive documentary evidence alone, it is generally problematic and fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under the law where those documents are rife with double, triple and even unidentified hearsay sources that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of a fair hearing (see Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing; see Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses; see Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), where in an unemployment compensation proceedings, an administrative law judge properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement; see Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).”

This matter presents a prime example of the pitfalls associated with the DOE’s strategy of attempting to sustain its burden of proof and persuasion via the submission of documentary evidence alone. Ideally, if the District intends to rest its case on documentary evidence alone, the District should offer into evidence all documentation pertaining to the evaluation of the student and the CSE's recommendations, including prior written notices, as well as substantial persuasive evidence justifying the decision making of the District (34 CFR 300.503[a]; 8 NYCRR 200.5[a]; see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016] [discussing the consequences of a CSE's failure to adequately document evaluative data, including that reviewing authorities might be left to speculate as to how the CSE formulated the student's IEP]; see also Application of a Student with a Disability, Appeal No. 23-090).

A review of the record shows that the student failed to make progress as documented by the DOE itself, and yet the DOE recommended the identical program for this student over the years at issue here without providing any explanation or justification for its actions, inactions, or general decision making regarding this student.

I find that based on the record before me, the District failed to sustain its burden and therefore denied this Student a FAPE for the 2021-2022 and 2022-2023 school years.

B. Compensatory Education

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]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). 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 [holding that compensatory education awards should be designed so as to "appropriately address [the problems with the IEP"]; 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"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

Here, as discussed above, the District failed to meet its burden to prove that it offered the student a FAPE for the 2021-2022 and 2022-2023 school years. To be sure, the District was required under the due process procedures set forth in New York State law to address its burdens by describing 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 he would have been but for the denial of a FAPE (Educ. Law § 4404[1][c]; see REDACTED v. New York City Dep't of Educ., 2017 WL 1194685, at *4 [S.D.N.Y. Mar. 30, 2017] [noting the SRO's finding that the district had the burden of proof on the issue of compensatory education]; see also E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524). Where, as here, New York State law has placed the burden of production and persuasion at an impartial hearing on the District, it is not an IHO's responsibility to craft the District's position regarding the appropriate compensatory education remedy.

However, an outright default judgment awarding compensatory education—or as in this case, any and all of the relief requested without question—is a disfavored outcome even where the District's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] [rejecting "lump sum" grant of tutoring as a compensatory remedy for a multi-year denial of FAPE]). Indeed, an award ordered so blindly could ultimately do more harm than good for a student (see REDACTED , 2017 WL 1194685, at *8 ["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"]). Moreover, if the sum and total of the compensatory education relief requested by the parent was ordered, including the monetization thereof, it would amount to a punitive award (see C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010] [noting 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."]).

The source of the Parent's request for 900 hours of compensatory education tutoring services is an April 4, 2023, letter and direct testimony by affidavit by the Director of EBL Coaching (P-C; P-J).

The Director indicated that she “assessed the student to help determine his reading, spelling, mathematics, and writing skill levels. To test his reading skills, [the student] was asked to read a series of words using the Wide Range Achievement Test (WRAT). Using this same diagnostic exam, he was asked to spell a series of words to test his encoding skills and he completed a series of mathematics problems to assess his mathematics skills. To assess his written expression abilities, [the student] was asked to complete a writing sample using the Test of Written Language (TOWL). Finally, [the Director] used the Qualitative Reading Inventory to assess his reading comprehension skills. Based on this assessment, [the student] tested at a mid-first grade for both decoding and spelling and a low third grade level for mathematics. He also tested at a first grade level for both reading comprehension and writing, all well below the expected levels for his grade. Based on his IEP dated 3/23/22 and this assessment, it is clear that [the student] is in critical need of one-on-one multi-sensory instruction to develop his reading and spelling skills, particularly using the Orton Gillingham approach. It is also important that he receive structured, multi-sensory instruction to build his writing, mathematics, and reading comprehension skills. [The Director] highly recommend that [the student] receive 900 hours of intensive one-on-one multisensory tutoring using the Orton Gillingham technique as well as similar multi-sensory instruction to build his writing, mathematics, and reading comprehension skills (see generally P-J).”

The Director of EBL Coaching testified that she took approximately one hour reviewing the Student’s 17-page March 23, 2022, IEP, and that the student’s evaluation took approximately one hour (see October 12, 2023, Transcript). The Director testified that her conclusions were based on, inter alia, other students with similar profiles as this student, but that she also came up with a specific recommendation for this student (see October 12, 2023, Transcript)

The Director testified that her recommendation was for the services to be provided at an average of approximately 10-12 hours per week over a two-year time period for a total recommendation of 900 hours (see October 12, 2023, Transcript). The Director noted specifically that her recommendation was for the type and amount of tutoring the student would benefit from and that the Director was not necessarily recommending the tutoring come from her for-profit facility. She further noted that the student’s family was under no legal obligation to use her for-profit tutoring facility (see 10/12/2023 Transcript).

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"]).

Based on the above, I find that the totality of the evidence in the hearing record, including the District's failure to sustain their burden of proof, supports a finding that the student here is entitled to compensatory education to remedy the District's denial of a FAPE during the two school years at issue.

Here, the DOE made no arguments advocating for a reduction in the number of hours recommended and presented no testimony or evidence regarding an appropriate compensatory award for this student. As such, I will not disturb the recommendations for the number of hours contained within the record.

I find that since the District failed to provide the Student with a FAPE for two school years, any award of compensatory education shall be limited to two school years’ worth of compensatory education. I further find that it would be appropriate for the awarded compensatory education to be used within a two-year period from the date of this decision, which will give the student sufficient flexibility.

I note with concern that the record has evidence to show that the student’s academic gaps may be due to the student’s own truancy and that this has impacted the student’s progress (see P-F-4). Therefore, I find that if the Petitioner or student rejects a reasonable offer of 1:1 instruction by the District, then this award shall be vacated.

Finally, there is nothing in the EBL Director's testimony or the hearing record indicating that the District itself cannot provide the recommended tutoring instruction, especially considering the instruction should support the student's in-school academics, which is a core function of the District (see Application of a Student with a Disability, Appeal No. 21-218).

VII. Conclusion

Based on the record before me, I find that the District has denied this student a Free Appropriate Public Education for the 2021-2022 and 2022-2023 school years.

I have considered the parties' arguments and find that the hearing record supports an order that the District provide this student with 900 hours of 1:1 instruction by a certified special education teacher as compensatory education services, to be utilized within two years.

I have reviewed all of the Petitioner’s remaining contentions contained within the DPC and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding and award of relief. Accordingly, any relief not specifically discussed in this decision is denied, and all the Petitioner’s remaining claims not discussed herein are all dismissed with prejudice.

VIII. Orders

IT IS HEREBY ORDERED that the District shall provide the Student with 900 hours of 1:1 instruction by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree. If the Petitioner or student rejects a reasonable offer of 1:1 instruction by the District, then this award shall be vacated; and

IT IS FURTHER ORDERED that the 1:1 instruction awarded above shall expire two years from the date of this decision if the student has not used them by such date.

DATED: 11/1/2023

SO ORDERED

/s/ Dustin Johnson

Dustin Johnson, Esq., IHO

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 proceedings 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.

DATED: 11/1/2023

CERTIFIED BY

/s/ Dustin Johnson

Dustin Johnson, Esq., IHO

EXHIBITS

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