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FINDINGS OF FACT & DECISION
Case Number: 179041
Student Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearings: November 28, 2018
May 27, 2020
Actual Record Close Date: October 13, 2020
Hearing Officer: Jeffrey J. Schiro, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2018
ESQ., Attorney — Student
Curriculum Coordinator, (via telephone) — Student
Admissions Coordinator, (via telephone) — Student
District Representative, — DOE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 27, 2020
ESQ., Attorney — Student
Special Education Teacher, (via telephone) — Student
Teacher for the, (via telephone) — Student
District Representative, — DOE
I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES
This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was originally requested by the attorneys for the student and the parent in a due process complaint notice dated October 29, 2018. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) during the 2018/19 and 2019/20 school years (Exs. P-A, P-D).[1]
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 (the “CSE”) that includes, but is not limited to, p arents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 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. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 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.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R. §§ 300.503(a)(1)-(2), 300.507(a)(1).
An impartial hearing officer (“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 (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(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 forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 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. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).
II. PROCEDURAL HISTORY
The DOE appointed the undersigned to serve as the IHO in this matter on October 30, 2018. See 8 NYCRR § 200.5(j)(3)(i). At a hearing held on November 28, 2019, the parent moved for an interim order on pendency (R. 6-7; Ex. P-H at 3). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). The DOE opposed the parent’s motion (R. 8). In an Interim Order on Pendency dated March 15, 2019, I directed the DOE to fund the student’s placement at the , effective October 29, 2018, for the duration of these proceedings (Ex. P-H at 14).
On November 15, 2019, the parent filed another due process complaint in which she asserted that the DOE denied the student a FAPE for the 2019/20 school year (Case No. )
(Ex. P-D). In an Interim Order dated April 23, 2020, I directed that Case No. be consolidated with in the interests of judicial economy and the interests of the student (Ex. P-I at 3). A hearing on the merits of the consolidated matters was thereafter held on May 27, 2020.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).
III. FACTUAL BACKGROUND
At the time of the October 29, 2018 due process complaint, the student was seven (7)
years old and has been diagnosed with cerebral palsy and cortical visual impairment (Ex. P-A).
For the 2018/19 and 2019/20 school years, the student attended the , which has not been approved by the Commissioner of Education as a school with which public school districts may contract to provide special education and related services to student with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with multiple disabilities is not in dispute in this hearing (Exs.
P-A, P-D). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1). [3]
The student is considered legally blind and displays low muscle tone in the oral motor area, causing excessive drooling and open mouth posture. His visual delays impact his behavior and ability to function during daily tasks in the school environment. Further, he has a history of some aggressive behaviors and a short attention span. As of spring 2016, the student’s receptive and expressive language was at a twenty-four (24) month level and all language skills were significantly delayed. In terms of self-management or daily living skills, the student will request to use the bathroom, but needs support to wash his hands and dress. He can feed himself finger foods and drink from a straw, but had difficulty drinking from an open cup. The student relies on his parents and adults working with him to dress and feed him (Ex. P-D at 3).
The parties’ familiarity with the student’s educational history prior to the 2018/19 school year, as detailed in the due process complaints and the undersigned’s Findings of Fact and
Decisions in Case No. and Case No. (Exs. P-A, P-B, P-D, P-E), is assumed and will not be restated here.
During the 2016/17 and 2017/18 school years, the student attended the , which was a New York State-approved nonpublic school that specialized in educating blind and visually impaired students.
On May 8, 2018, the CSE reconvened to develop an IEP for the student for the 2018/19 school year. The CSE recommended that the student receive the majority of his instruction in an approved non-public school, which the parent understood meant the (Ex. P-A at 5).
On June 22, 2018, however, the parent received a letter announcing that the would be closing its doors as of December 31, 2018 and that the student would need to secure a new educational placement (Ex. P-A at 6).
On September 25, 2018, the CSE reconvened and recommended an interim placement for the student and deferred the case to the DOE’s Central Based Support Team (the
“CBST”) for selection of another approved nonpublic day school (Exs. P-A at 6, P-F at 42). As of the October 29, 2018 due process complaint, the parent did not receive a copy of the September 2018 IEP and the DOE did not secure another approved nonpublic day school placement for the student (Ex. P-A at 7).[4]
On October 12, 2018, the parent filed a ten-day notice with the CSE, advising the DOE of her intent to enroll the student at the at public expense absent an offer of an appropriate public placement (Ex. P-J). On October 24, 2018, the parent signed an enrollment contract with the for tuition and related services for the student (Exs. P-A at 8, P-L). The student attended the for the entire
2018/19 school year.
On June 10, 2019, the parent received a school location letter, offering an interim placement at a school, in Queens. The placement appeared to be based on information and recommendations made during the September 25, 2018 CSE meeting. On June 19, 2019, the parent visited . Due to the fact that the school did not offer vision services of any kind, the parent determined that it could not offer the student a FAPE (Ex. P-D at 10-11).
The CSE reconvened on August 15, 2019 to develop an IEP for the student for the 2019/20 school year. No staff from the were in attendance at the meeting. The CSE recommended that the student receive the majority of his instruction in a 12:1
+ (3:1) special class in a specialized ( ) school on a twelve (12) month basis. The CSE also recommended that the student receive a full-time 1:1 health paraprofessional for toileting and ambulation. The CSE increased the student’s speech services to 3x30 1:1( from 2x30 1:1)
and occupational therapy to 3x30 1:1 (from 2x30 1:1), but failed to recommend any vision services for this visually impaired student (Exs. P-D at 11, P-F at 20).
The parent later received a school location letter from the DOE, dated August 21, 2019, indicating that the student’s program would be implemented at ,a school in Queens. On September 4, 2019, the parent visited the school. From her tour of the school, the parent determined it was not appropriate because it could not offer all of the services recommended in the student’s IEP. The parent, therefore, arranged for the student to continue to attend the for the 2019/20 school year (Ex. P-D at 13).
IV. POSITIONS OF THE PARTIES
A. The DOE
The DOE did not present a case at the hearing (R. 134).
B. The Parent
The DOE failed to offer and/or provide the student with a FAPE during the 2018/19 and 2019/20 school years. The DOE should be ordered to reimburse the parent, and/or directly pay, all costs associated with the student’s unilateral placement at the during the disputed school years. The DOE should also be ordered to provide the student with vision services (Ex. P-D at 7). compensatory additional services to remedy inadequate related service mandates contained in the student’s IEPs (R. 135-138; Exs. P-A, P-D).
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. Applicable Legal Standards
Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ.
of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[5]
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.
See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ. , 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); 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. Florida 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). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see 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., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir.
2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).
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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v.
Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).
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. See 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." See 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 statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist. , 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192.
The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp.
2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y.
2008).
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 C.F.R. § 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).
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. See Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); School Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 (1985). The remedy of tuition reimbursement has been extended to authorize direct payments to a private school for educational services rendered where Burlington/Carter factors are satisfied. Mr. A. v. New York City Dep’t of Educ. , 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ. , 646 F. Supp. 2d 346, 358-60 (S.D.N.Y.
2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).
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. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
B. Denial of FAPE - 2018/19 & 2019/20 School Years
At the hearing, the DOE declined to present a case, thereby conceding that it failed to offer and/or provide the student with a FAPE for the 2018/19 and 2019/20 school years (R. 134).
Accordingly, I find that the student was denied a FAPE for the 2018/19 and 2019/20 school years.
C. Appropriateness of the
Given my finding that the DOE failed to provide the student with a FAPE during the 2018/19 and 2019/20 school years, I turn to the appropriateness of the parent’s private program.
With respect to the second criterion for an award of reimbursement, a parent must show that the private services obtained for the student were appropriate to meet his special education needs.
See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.
In order to meet that burden, a private placement must be “proper under the Act,” see 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. “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., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize the student’s potential. See Frank G., 459 F.3d at 364-65. When determining whether the parent’s unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether that placement is “reasonably calculated to enable the child to receive educational benefits.” Id. at 364; see also Gagliardo, 489 F.3d at 115. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a handicapped child.’” Gagliardo, 489 F.3d at 115, quoting Rowley, 458 U.S. at 188-89; see also Weaver v. Millbrook Cent. Sch. Dist., No. 09-
CV-692 (KMK), 111 LRP 59361 (S.D.N.Y. Sept. 6, 2011).
Based on the evidence entered into the hearing record, including the credible testimony of Ms. and Ms. , I find that the was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs (R. 140-155; Exs. P-A, P-D at 2,
P-S, P-U, P-Y, P-Z).
D. Relevant Equities
The final criterion for a reimbursement award is that the parent's claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA. See Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 (2d Cir. 2000). “Courts fashioning discretionary equitable relief under [the] IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private placement was unreasonable.” Carter, 510 U.S. at 16.
The IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. See 20 U.S.C. § 1412(a)(10)(C)(iii); 34 C.F.R. § 300.148(d); S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 (S.D.N.Y. 2009); Thies v. New York City Bd. of Educ., 2008 WL 344728 (S.D.N.Y. Feb. 4, 2008); M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 (N.D.N.Y. Jan. 2, 2008); Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 (S.D.N.Y. Nov. 20, 2007); Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 (S.D.N.Y. 2005), aff’d, 192 Fed. Appx. 62, 2006 WL 2335140 (2d Cir. Aug. 9, 2006); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-661 (S.D.N.Y. 2005).
The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).
This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."
Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-
24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at the for the 2018/19 and 2019/20 school years. In a letter dated October 12, 2018, the parent gave the DOE adequate written notice of his intent to make a unilateral placement of the student at the at public expense (Ex. P-J). See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. P-F, P-G), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition at the unreasonable given the severity of the student’s needs and services necessary to address those needs (Ex. P-AA), see Carter, 510 U.S. at 16.
E. Compensatory Additional Services
Within the Second Circuit, compensatory education generally has been viewed as instruction provided to a student after he or she is no longer eligible because of age or graduation to receive instruction. It has been awarded if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time.
See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Mrs. C. v.
Wheaton, 916 F.2d 69 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071 (2d Cir. 1988); but see P.
v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (upholding an award of compensatory education for a school aged student without finding a gross violation of the IDEA). Compensatory education is an equitable remedy that is tailored to meet the circumstances of the case. See Wenger v. Canastota , 979 F. Supp. 147 (N.D.N.Y. 1997).
State Review Officers also have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Newington, 546 F.3d at 123 (stating "[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"); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *23 (E.D.N.Y. Oct. 30, 2008) (finding that compensatory education may be awarded to students under the age of twenty-one); Board of Educ. v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for a State Review Officer to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction); Application of a Child with a Disability , Appeal No. 08-072 (awarding after school and summer reading instruction as compensatory services to remedy a denial of a FAPE).
Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o ]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.
At the hearing, the DOE failed to offer any evidence in support of its recommended programs for the student for the 2018/19 and 2019/20 school years. The DOE also failed to develop the hearing record to establish the appropriate amount of relief needed to remediate its failure to provide the student with FAPE for the 2018/19 and 2019/20 school years. Cf.
Application of the New York City Dep’t of Educ. (Appeal No. 14-014) at 9 (SRO March 31,
2014).
Through a series of prior impartial hearings, the student was awarded independent educational evaluations (“IEEs”) in the areas of speech, physical therapy, occupational therapy and assistive technology (Exs. P-B, P-E). Here, I will apply a quantitative approach and award the student compensatory relief in the form of a bank of hours for additional occupational therapy, speech/language therapy and physical therapy to compensate for an insufficient frequency of recommended related services for both school years, as highlighted by the completed IEEs.
1. Speech/Language Therapy
The independent speech/language evaluation found that the student presents with profound expressive, receptive and pragmatic language delays and a severe articulation disorder. The evaluator strongly recommended that the student receive intensive, individual, bilingual speech/language therapy for five 60-minute sessions per week to treat his speech, motorplanning and receptive, expressive and pragmatic language deficits (Exs. P-D at 8-9, P-O at 11). This recommendation translates to 230 hours of speech/language therapy per school year (or 460 hours for both years combined). In contrast, during the 2018/19 school year the student received 2x30 minute speech sessions per week (or 46 total hours of speech therapy), and during the 2019/20 school year, the student received 3x30 minute speech sessions per week (or 69 total hours of speech therapy); which amounted to a combined total of 115 hours of speech therapy (Ex. P-F at 20, 42). The DOE will, therefore, be directed to authorize the student’s receipt of
345 hours of speech and language therapy, which represents the difference between the 460 hours recommended by the IEE and the 115 hours of speech/language therapy that the student received.
2. Occupational Therapy
The independent occupational therapy evaluation found that the student exhibits severe delays in the areas of fine and gross motor strength and coordination, and cognitive, physical, social and adaptive skills. The evaluator recommended that the student receive occupational therapy services for five 60-minute sessions per week to address delays in visual motor, fine motor and overall developmental delays (Exs. P-D at 9, P-N at 7). This recommendation translates to 230 hours of occupational therapy per school year (or 460 hours for both years combined). In contrast, during the 2018/19 school year the student received 2x30 minute occupational therapy sessions per week (or 46 total hours of occupational therapy), and during the 2019/20 school year, the student received 3x30 minute occupational therapy sessions per week (or 69 total hours of occupational therapy); which amounted to a combined total of 115 hours of occupational therapy (Ex. P-F at 20, 42). The DOE will, therefore, be directed to authorize the student’s receipt of 345 hours of occupational therapy, which represents the difference between the 460 hours recommended by the IEE and the 115 hours of occupational therapy that the student received.
3. Physical Therapy
The independent physical therapy evaluation recommended that the student continue to receive the 2x30 minute physical therapy received at school, and that he also receive 2x30 minute or 1x60 minute physical therapy service at home in order to further address his deficits in strength, balance coordination, motor planning, body awareness, navigation and delays in overall age-appropriate gross motor skills and functional activities of daily living (Exs. P-D at 11, P-Q at 6). This recommendation translates to 92 hours of physical therapy per school year (or 184 hours for both years combined). In contrast, the student receive 2x30 minute physical therapy sessions per week for both the 2018/19 and 2019/20 school years, or 46 hours of physical therapy per school year; which amounted to a combined total of 92 hours of physical therapy (Ex. P-F at 20, 42). The DOE will, therefore, be directed to authorize the student’s receipt of 92 hours of physical therapy, which represents the difference between the 184 hours recommended by the IEE and the 92 hours of physical therapy that the student received.
4. Assistive Technology
The independent assistive technology evaluation found that the student demonstrated comprehension of speech at the phrase and simple sentence level. He presented as an individual who has no meaningful immediate mode for spontaneous, consistent communication. During the evaluation, the evaluator attempted several techniques to elicit specific words or phrases to obtain functional expressive speech from the student. She concluded that the student demonstrated the necessary cognitive skills to use a dynamic screen speech-generating device
(“SGD”) to augment his communication and recommended that he receive assistive technology in several formats, including but not limited to assistive technology for a trial period for use at school and at home, assistive technology equipment for curriculum access, reading and writing supports, math supports, and 85 hours of training to include the parent, student and teacher to ensure confident use and access to assistive technology tools (Ex. P-P at 10-12).
VI. ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS
HEREBY ORDERED THAT:
1. The parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2018/19 and 2019/20 school years is SUSTAINED;
2. Within thirty (30) days of the date of this Order the DOE shall reimburse the parent
$400.00 for out-of-pocket tuition deposits paid to the during the 2018/19 and 2019/20 school years and shall directly pay $188,127.00 to the for tuition owed for the two school years;
3. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory additional services:
a. 345 hours of speech and language therapy from a speech therapist of the parent’s choice at an enhanced market rate;
b. 345 hours of occupational therapy from an occupational therapist of the parent’s choice at an enhanced market rate;
c. 92 hours of physical therapy from a physical therapist of the parent’s choice at an enhanced market rate; and
d. assistive technology and assistive technology training in accordance with the recommendations in the January 9, 2019 independent assistive technology evaluation by , M.S./CCC-SLP, including the hardware, software and programs recommended in the evaluation, along with 85 hours of training on the device(s), to be divided as needed between the student, the parent, the student’s teacher and speech therapist; and
4. Within thirty (30) days of this Order, the DOE shall create a procedurally and substantively valid IEP which includes the following program and services:
(a) placement in a small, non-public school in a classroom with no more than eight (8) students and a minimum of one special education teacher and one teaching assistant;
(b) individual (1:1) speech/language therapy, five (5) times per week for sixty
(60) minutes per session;
(c) individual (1:1) occupational therapy, five (5) times per week for sixty (60)
minutes per session,
(d) individual (1:1) physical therapy, two (2) times per week for thirty (30)
minutes per session at school and an additional two (2) times per week for thirty (30)
minutes per session at home;
(e) twelve (12) month extended school year services;
(f) individual (1:1) orientation and mobility services, one time per week for sixty
(60) minutes per session;
(g) special transportation including round-trip, air-conditioned lift bus;
(h) appropriate vision services delivered by a TVI; and
(i) assistive technology as recommended in the January 9, 2019 independent assistive technology evaluation.
All other requests for relief are denied.
Dated: October 27, 2020
/s/ Jeffrey J. Schiro
Jeffrey J. Schiro, Esq.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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 the 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 the 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.
DOCUMENTATION ENTERED INTO THE HEARING RECORD
PARENTS
A. Due Process Complaint ( ), 10/29/18, 12 pgs.
B. Findings of Fact & Decision (Case No. ) IHO Jeffrey J. Schiro, 12/13/17, 25 pgs.
C. Functional Vision Assessment, 9/14/18, 3 pgs.
D. Due Process Complaint (Case No. ), 11/15/19, 17 pgs.
E. Findings of Fact & Decision (Case No. ) IHO Jeffrey J. Schiro, 6/13/19, 23 pgs.
F. 2018 & 2019 IEPs, 9/25/18 - 8/15/19, 51 pgs.
G. 2017 IEP, 6/5/17, 18 pgs.
H. Interim Order on Pendency ( ) IHO Jeffrey J. Schiro, 3/15/19, 17 pgs.
I. Order on Consolidation (Case Nos. & 179041), 4/23/20, 4 pgs.
J. Ten Day Notice, 10/12/18, 10 pgs.
K. Acceptance Letter, 9/27/18, 2 pgs.
L. 2018/19 Contract, 10/24/18, 5 pgs.
M. 2019/20 Contract, 6/6/19, 4 pgs.
N. Independent Occupational Therapy Evaluation, 9/8/18, 8 pgs.
O. Independent Bilingual Speech Evaluation, 10/10/18, 12 pgs.
P. Independent Assistive Technology Evaluation, 1/9/19, 12 pgs.
Q. Independent Physical Therapy Evaluation, 2/20/19, 7 pgs.
R. CVI Schedule, 2018/19, 2 pgs.
S. Quarterly Progress Report, 4/2019 – 6/2019, 7 pgs.
T. Activity Schedule, Fall 2019, 1 pg.
U. Quarter Progress Report, 9/2019 – 12/2019, 9 pgs.
V. Areas of Instructional & Therapeutic Focus, 2019/20, 3 pgs.
W. Progress Reports, 3/2020, 11 pgs.
X. Remote Learning Schedule, 3/31/20, 2 pgs.
Y. Affidavit – (Special Education Teacher), 5/27/20, 10 pgs.
Z. Affidavit – (Teacher of Visually Impaired), 5/27/20, 4 pgs.
AA. Tuition Affidavits, 5/22/20, 2 pgs.
BB. CVI Schedule, 2019/20, 1 pg.
CC. Parent’s Closing Statement & Memorandum of Law, 2/14/20, 11 pgs.
DEPARTMENT OF EDUCATION
None
IMPARTIAL HEARING OFFICER
None
Footnotes
[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.”
[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to acco mmodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 110-111, 156-158). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).
[3] Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. 8 NYCRR § 200.1(zz)(8).
[4] According to a December 3, 2018 letter from the DOE to the parent, the DOE sent the student’s packet to nine (9) approved nonpublic schools for consideration, two of which reportedly could not meet his needs, and one that had no vacancy. Of the remaining six (6) schools, only the Westchester School for Special Children (“WSSC”) contacted the parent for a site visit. WSSC ultimately declined the referral because it could not offer the student
[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.