Impartial Hearing Decision

CASE NUMBER: 605807- NYC: 253102

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Date of Birth: REDACTED

School District: NYC Department of Education

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 08/28/2023

Date(s) of Hearing: 10/26/2023

Actual Record Closed Date: 11/06/2023

Date of Decision: 11/06/2023

Date of Distribution (if Different than Decision Date): 11/08/2023

Hearing Officer: Edward Perkins, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/10/2023

For the Student:

REDACTED, Esq., Attorney

REDACTED, Director, REDACTED

REDACTED, Parent Student

For the Department of Education:

REDACTED Esq., Attorney

INTRODUCTION

This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). The Parent filed this case on August 28, 2023. In the Due Process Complaint (“DPC”), the Parent alleges that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years. Ex. A.

By way of relief, Parent seeks an award of 734 hours of Tutoring services, with payment made at a reasonable market rate (Tr. at 72) ^[1], 76 hours of compensatory Speech-Language Therapy (“SLT”), with payment made at a reasonable market rate (Tr. at 84), 57 hours of compensatory Occupational Therapy (“OT”), with payment made at a reasonable market rate (Tr. at 91). Parent also seeks funding for a private Neuropsychological Evaluation, SLT evaluation, and OT evaluation. Tr. at 93. I find that (a) the DOE failed to meet its burden that it offered Student a FAPE for the school years in question, and (b) Parent’s requested relief is appropriate. 2

PROCEDURAL HISTORY

On August 29, 2023, I was appointed as IHO in this matter. On September 21, 2023, the parties appeared for a Pre-Hearing Conference. On October 12, 2023, Parent appeared for the scheduled status conference, but the DOE failed to appear. On October 26 2023, the parties appeared for a due process hearing on the merits. The DOE disclosed eleven exhibits in advance of the hearing. Tr. at 22. Parent objected to three of the DOE’s proposed exhibits, and the DOE agreed to withdraw the three contested exhibits. Tr. at 23. Parent presented eleven exhibits, and the testimony of two witness, the mother of Student (“Parent”) and the Director of the agency providing Tutoring services to Student (“Director”). Tr. at 28-29. The DOE did not object to any of Parent’s proposed exhibits. Tr. at 30. The DOE waived an opening statement, and Parent gave an oral opening statement. Tr. at 31. At the conclusion of the hearing, each party presented an oral summation. Tr. at 69.

FINDINGS OF FACT

I hereby make the following findings of fact and determinations.

Student is a REDACTED old child with a DOE disability classification of Learning Disability. Ex. C. The DOE created an Individualized Education Program (“IEP”) for Student for the 2022-2023 school year on January 19, 2022. Id. The January 19, 2022 IEP mandated an Integrated Co-Teaching Services classroom setting, as well as OT services twice a week for thirty minutes in a group of^[2] and SLT services twice a week for thirty minutes in a group of 3. Id. Student failed to make meaningful progress during the school years in question. Ex. A, Tr. at 33.

CONCLUSIONS OF LAW AND ANALYSIS

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except in circumstances not present here. (NYS Educ. Law § 4404(1)(c)). The school district has the burden of proof on the issue of compensatory education. See M.M. v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (DC Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.

Provision of FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 34 C.F.R. § 300.13. A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must prove that it offered the student in question an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to a provision of FAPE, the DOE failed to meet its burden at hearing. According to the Supreme Court, a reviewing hearing officer may fairly expect the DOE to be able to offer a cogent and responsive explanation for their decisions that shows the ISEP is reasonably calculated to enable the child to make progress appropriate in light of her circumstances. Endrew F., 386, 404. Here, Parent alleged that the DOE committed a broad range of procedural and substantive violations, as noted above. The DOE plainly failed to meet its burden. While the DOE submitted documentary exhibits into the record, a review of those exhibits without accompanying testimony offers no background as to how the CSE made its recommendations, whether the IEP appropriately described Student and his needs, or whether the IEP was meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.” Endrew F., 580 U.S. at 401. I cannot determine that an IEP is appropriate based solely on its contents, without some accompanying testimony to describe why it is appropriate for a student. See J.L. v NY City Dept. of Educ., 2016 U.S. Dist. LEXIS 162328, at *16-17 (EDNY Nov. 22, 2016, No. 15-CV-1200 [CBA] [RER]. The DOE did not offer an opening statement and failed to elaborate on why it believed the documents in evidence demonstrated an appropriate program and placement.

Further, Parent made numerous allegations relating to deficiencies in the IEP itself, as well as the DOE’s failure to appropriately evaluate Student in preparation for the IEP meeting. See generally, Ex. A. The Parent is entitled to a presumption that the asserted credible facts underlying her claims, which are not otherwise contradicted in the record, are true, in the absence of any DOE testimony to the contrary. See generally, Thomson v. Wooster, 114 U.S. 104, 111 (1885) (explaining in default, matters alleged with sufficient certainty taken as true); Cotton v. Slone, 4 F.3d 176, 181 (2d Cir 1993) (stating factual allegations taken as true in light of default judgment and absence of findings concerning liability); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990) (stating consequence of default judgment is factual allegations, except those relating to damages, are taken as true). While there was no default judgement in this matter, a case where the DOE merely presents documents and fails to make any attempt to justify, explain, or discuss their contents via testimony is directly analogous to a case where the DOE failed to present any case at all.

Finally, the only testimony in evidence regarding the provision of FAPE suggests that the recommendations contained in the IEP were not appropriate for Student. See, e.g., Ex. K 22-23. The DOE did not meet its burden of proving that it provided Student with a FAPE for the school years at issue. Therefore, I am constrained to find that the DOE failed to offer the Student a FAPE for the 2021-2022 and 2022-2023 school years.

Relief

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

v. East Lyme Bd. of Educ., 790 F.3d 454 (2d Cir. 2015). ^[3]

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

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

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

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

Where the DOE fails to meet its burden of proving it provided a FAPE, as is the case here, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district's failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). Further, it is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district's failure to provide the student with a FAPE. Id.

As previously discussed, the DOE failed to present any testimony and failed to make any effort to explain the contents of the documents it entered into evidence. Thus, I find that the DOE has failed to establish the appropriate amount of relief to remediate its failure to provide Student with a FAPE for the school years in question.

In contrast, Parent offered evidence in the record of a specific remedy for the denial of FAPE from the school years in question.

First, Parent is seeking 734 hours of compensatory Tutoring hours, to be provided by a qualified provider of Parent’s choosing at a reasonable market rate. As discussed above, Student was deprived of a FAPE for two consecutive school years. Parent provided testimony from an experienced education professional, who is the director of an agency that provides tutoring services. Ex. J. Director testified credibly that her agency evaluated Student and determined that he requires a total of 734 hours of Tutoring to teach him the skills he is missing as a result of deficiencies in his academic program over the past two years. Id. I found Director’s testimony to be persuasive and credible, and it was the only testimony from an educational professional in the record. Thus, I find that the testimony and evidence in the record supports an award of 734 hours of compensatory Tutoring, under both the quantitative and qualitative approach.

Parent is also seeking an award of 76 hours of compensatory SLT services, as student was to have received 76 hours of SLT during the school years at issue. Tr. at 84. As Student’s IEP recommends those services, there can be no question that he is entitled to SLT. Ex. C. However, Parent concedes that DOE provided 45.5 hours of SLT during the school years at issue. Thus, applying the quantitative approach, Student appears to be entitled a compensatory award of the remaining 30.5 hours of SLT services.

Similarly, Parent is seeking an award of 57 hours of compensatory OT services, as student was to have received 76 hours of SLT during the school years at issue. Tr. at 90-91. As Student’s IEP recommends those services, there can be no question that he is entitled to SLT. Ex. C. However, Parent concedes that the DOE provided 38 hours of OT during the school years at issue. Thus, applying the quantitative approach, Student appears to be entitled to a compensatory award of the remaining 19 hours of OT services.

Finally, Parent requests funding for an independent Neuropsychological evaluation, OT evaluation, and SLT evaluation. An IEP must contain objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved.” Viola v. Arlington Cent. Sch. Dist., 414 F. Supp. 2d 366, 377 (S.D.N.Y. 2006) (citing 20 U.S.C. § 1414(d)(4)(A)(i); 34 C.F.R. § 300.320(a)(1); see also 8 NYCRR § 200.4(d)). The DOE did not put forth any arguments regarding Parent’s requested evaluations. The only evidence in the record is that the DOE evaluated student, including a psychoeducational evaluation and SLT evaluation, in the first half of the 2019-2020 school year. Ex. 9, Ex. 10, Ex. 11. Following those evaluations, the student failed to make progress during two consecutive school years. Ex. K. Additionally, IHOs have broad equitable power to award relief. An appropriate equitable remedy for a failure to properly evaluate a student in all areas may be an order directing the DOE to fund any additional necessary evaluations. See Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 369, 370–71 (1985) (concluding that the equities require a school district to belatedly pay expenses it should have paid all along and would have borne in the first instance had it fulfilled its legal obligations to the student). See also, SRO No. 20-049; see also SRO No. 20-147 (upholding an IHO’s equitable award of reimbursement for the costs of a privately obtained neuropsychological evaluation). Therefore, following a finding that Student was not provided with an adequate FAPE for two consecutive school years with the evaluative data at hand, as an equitable matter I find that additional evaluations are warranted.^[4] Thus, the need for additional, up-to-date evaluative data is apparent, and in the absence of any objection or argument to the contrary from the DOE I find that Parent is entitled to the requested evaluations.

I find that the compensatory relief requested by the Parent is appropriate to remedy Student’s documented academic and social/emotional deficits, and the requested relief is reasonably calculated to provide Student with the skills that she would likely have accrued but for the DOE’s failure to provide a FAPE. Therefore, I find no issue with the reasonableness of the requested relief.

Even if a parent establishes a right to relief under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.” Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether there was any fraud or collusion in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Here, the DOE failed to raise any equitable issues which would be a barrier to the requested relief. Thus, equitable considerations support the requested relief, as previously discussed.

For the reasons above, I find that the record supports Parent’s requested relief.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY

ORDERED THAT:

(1) The New York City Department of Education is ordered to fund 734 hours of compensatory tutoring services, to be provided by a similarly qualified provider of Parent’s choosing, at a reasonable market rate, with payment to be made directly to the provider within 30 days of the submission of an invoice to the DOE; and

(2) The New York City Department of Education is ordered to fund 30.5 hours of compensatory Speech & Language Therapy services, to be provided by a qualified provider of Parent’s choosing, at a reasonable market rate, with payment to be made directly to the provider within 30 days of the submission of an invoice to the DOE; and

(3) The New York City Department of Education is ordered to fund 19 hours of compensatory Occupational Therapy services, to be provided by a qualified provider of Parent’s choosing, at a reasonable market rate, with payment to be made directly to the provider within 30 days of the submission of an invoice to the DOE; and

(4) The New York City Department of Education is ordered to fund a comprehensive Neuropsychological evaluation, to be conducted by a qualified provider of Parent’s choosing, at a reasonable market rate, with payment to be made directly to the provider within 30 days of the submission of an invoice to the DOE; and

(5) The New York City Department of Education is ordered to fund a comprehensive

Speech and Language evaluation, to be conducted by a qualified provider of Parent’s choosing, at a reasonable market rate, with payment to be made directly to the provider within 30 days of the submission of an invoice to the DOE; and (6) The New York City Department of Education is ordered to fund a comprehensive

Occupational Therapy evaluation, to be conducted by a qualified provider of Parent’s choosing, at a reasonable market rate, with payment to be made directly to the provider within 30 days of the submission of an invoice to the DOE.

SO ORDERED.

DATED: 11/06/2023

//s// Edward Perkins

Edward Perkins, Esq.

Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A – REDACTION IDENTIFICATION PAGE

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due Process Complaint 08/28/2023 17 pages

B. Occupational Therapy Evaluation 01/12/2022 8 pages

C. Individualized Education Program 01/19/2022 22 pages

D. Final Report Card June 2022 2021-2022 2 pages

E. Occupational Therapy Progress Report 01/06/2023 2 pages

F. Individualized Education Program 01/11/2023 26 pages

G. Final Report Card 05/28/2023 2022-2023 2 pages

H. Related Service Records Various 33 pages

I. REDACTED Evaluation Report 08/24/2023 5 pages

J. Affidavit of REDACTED 09/22/2023 8 pages

K. Affidavit of REDACTED 10/02/2023 26 pages

DOE EXHIBITS

2. IEP 02/01/2021 18 pages DOE

3. IEP 01/19/2022 22 pages DOE

4. IEP 01/11/2023 26 pages DOE

7. Prior Written Notice 12/09/2021 5 pages DOE

8. Prior Written Notice 01/20/2022 9 pages DOE

9. Psychoeducational Evaluation 11/22/2019 13 pages DOE

10. Classroom Observation 12/05/2019 1 page DOE

11. Speech-Language Evaluation 01/22/2020 7 pages DOE

Footnotes

[1] The October 26, 2023 hearing transcript is cited to using the following format: ‘Tr. at xx’ (with ‘xx’ representing the page number).

[2] The scope of the requested and awarded relief will be discussed in greater detail in the Relief section of this decision.

[3] I have elected to address the requested relief using my broad discretion to award equitable relief, as opposed to the Burlington/Carter “three prongs” analysis. During the hearing, the Parties noted no objection to my decision to do so. Tr. at 96. Under the Burlington/Carter test, a district must pay for the cost of a student’s requested relief if the three prongs are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993). While the Burlington/Carter test is sometimes applied in cases where tuition is not sought (for example by substituting ‘requested relief’ for ‘private placement’ or ‘tuition’), I believe that test was designed expressly for application in cases considering an award of tuition. However, even if the Burlington/Carter test were to be applied to the facts of this case, Parent would still prevail, as the three prongs favor her: DOE has failed to prove that it provided FAPE (prong 1), Parent has demonstrated the appropriateness of the requested relief (prong 2), and there are no equitable considerations which were raised that could be a barrier to the requested relief (prong 3).

[4] The 2021-2022 and 2022-2023 IEP teams presumably relied upon the evaluative data from the 2019-2020 school year, as it was the most up-to-date evaluative data then available.