NY IHO #194271: New York City... | Special Education Law

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CASE NUMBER: 537498 - NYC: 194271

FINDINGS OF FACT AND DECISION

Case Number: 194271

Student’s Name: REDACTED

School District: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: Harry A. Christodoulou

Date of Filing: 06/05/2020

Hearing Requested by: Parent(s)/Guardian(s)

Date of Hearing: 05/13/2022

Record Close Date: 05/23/2022

Date of Decision: 06/01/2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 13, 2022

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative”)

REDACTED (Legal Intern, as observer)

REDACTED (hereinafter referred to as “Parent”)

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”)

BACKGROUND AND PROCEDURAL HISTORY

Student is an REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). The Student’s eligibility for special education supports and services during the school years (“SY” or “SYs”) in issue is not in dispute.

On June 05, 2020 the Parent, through the Parent’s representative’s firm, filed a due process complaint (“DPC”) against the DOE pursuant to the IDEA (Exhibit P-A). I was appointed on October 28, 2020, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC, concerning the special education program of the Student.

This matter has a long history, and the parties have, through mutual effort aimed at resolving the issues raised in the DPC, managed to resolve all matters save for the relief set out in paragraphs 6 and 7 of the DPC (Exhibit P-A-18). The IH took place on May 13, 2022.

JURISDICTION

A decision in this matter is being rendered, pursuant to the IDEA^[1], and its implementing regulations^[2], and the New York State Education Law^[3], and its implementing regulations^[4].

PARTIES’ POSITIONS AND CASES PRESENTED

DOE:

District’s representative made an opening statement asserting that: The student has since (the filing of the DPC) graduated from high school; most of the relief was resolved through multiple resolution agreements (T. P80, L24-5); we are here (at the IH) mainly to consider the services recommended in an independent evaluation obtained pursuant to one of the resolution agreements (T. 81, L1-3); the DOE would not be presenting witnesses or evidence in defense of the SYs at issue; the DOE has no objection to the remaining items of relief requested by the Parent and rested its case (T. P81, L4-8).

I enquired with District’s representative, who confirmed on the record, that the DOE is “conceding FAPE” or more accurately that a denial of a FAPE has occurred over three SYs at issue (T. 81, L14-20). District’s representative waived the DOE’s closing statement (T. P93, L14-18).

Parent:

The Parent, through the Parent’s representative, submitted thirty documents (Ex. P-A through P-DD) in support of the Parent’s case, which includes affidavit testimony (Ex. P-AA through P-DD). All the proposed exhibits were admitted into evidence after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P90, L24-25, P91; P92, L1-6). A list of the documents admitted into evidence is provided below (before the Appendix). The deponents to the affidavits were not required for cross-examination and/or clarifying questions and were excused from appearing at the IH for that purpose (T. P92, L8-23).

Parent’s representative made an opening statement (T. P82, L16-25; P83-88; P89, L1-18) asserting inter alia that: the DOE failed to provide the Student with a FAPE in high school for the three SYs at issue and seeks compensatory services for those three years in the form of life skills and vocational rehabilitation, including transition coordination, as well as tutoring, because the DOE failed to provide any transition support for the Student during High School; because of the DOE’s failure to provide and help the Student to prepare for the transition out of High School or to help him build the adaptive skills he needs to be successful in his post-secondary life; elaborated on the Student’s struggles during his high SYs due to his diagnosis and the maladaptive behaviors/deficits resulting therefrom that were impeding the Student’s ability to progress in school and his needs; provided an overview of the evidence submitted into evidence, and the case presented, supporting the relief sought, namely: i) three years of life skills and vocational rehabilitation for 6-9 hours per week; ii) transition coordination for 4 hours a month; iii) tutoring for 500 hours, to make up for the DOE’s numerous failures to provide the Student with services that were recommended and not provided, to help the Student make up for the lack of progress achieved; and iv) round-trip transportation in the form of metro-cards, for all services awarded; and asserted that the Parent has met all equitable standards and that the DOE has failed the Student.

I enquired with District’s representative, who again confirmed on the record, after hearing the Parent’s representative’s summary of the relief sought, include the number of tutoring hours requested by the Parent, namely, the 500-hours of tutoring requested, that there is no objection to the relief being sought by the Parent (T. P89, L20-25; P90, L1-17).

Parent’s representative made a detailed closing statement reiterating the relief sought; summarizing the DOE’s failures, including the specific examples supporting the assertions, linking it to the evidence on record, and supporting it with case authority (T. P93, L20-25, P94-120; P121, L1-24).

PREVAILING PARTY

The Parent is the prevailing party and is entitled to an award or Order providing relief for the Student.

LEGAL FRAMEWORK

A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the Individualized Education Program (“IEP”) developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits^[5].

If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parent's 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^[6].

The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE^[7]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[8].

Once a parent consents to a district's provision of special education services, such services must be provided by the district in conformity with the student's IEP^[9]. A denial of a FAPE occurs if the district deviates from substantial or significant provisions of the student's IEP in a material way and thereby precludes the student from the opportunity to receive educational benefits^[10].

School districts are not required to "maximize" the potential of students with disabilities^[11], but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"^[12]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"^[13].

To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP^[14]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material"^[15].

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement^[16]. The exception does not apply in this matter.

As the DOE has not presented a case, it is noted that defaults judgments are nevertheless disfavored by the federal courts^[17] and that under the IDEA^[18] a decision must be made on substantive grounds based on whether the student received a FAPE.

As the Student received his high school diploma, graduated and is now in college (Exhibit P-AA-6, pars. 43 & 44), it is also noted that in New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until the student receives either a local or Regents high school diploma^[19], or until the conclusion of the ten-month SY in which the student turns age 21^[20]. New York State regulations further state that "[e]arning a Regents or local high school diploma shall be deemed to be equivalent to receipt of a high school diploma pursuant to Education Law, section 3202...and shall terminate a student's entitlement to a free public education pursuant to such statute"^[21]. A student may still be entitled to compensatory educational services after graduation^[22] (addressed below under “Compensatory Education or Services”).

As it pertains to the remaining relief at issue, under the IDEA, to the extent appropriate for each individual student, an IEP must focus on providing instruction and experiences that enable the student to prepare for later post-school activities, including postsecondary education, employment, and independent living^[23]. Accordingly, pursuant to federal law and State regulations, an IEP for a student who is at least 16 years of age (15 under State regulations), or younger if determined appropriate by the CSE, must include appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills^[24]. An IEP must also include the transition services needed to assist the student in reaching those goals.

Transition services must be "based on the individual child's needs, considering the child's strengths, preferences, and interests" and must include "instruction, related services, community experiences, the development of employment and other post-school adult living objectives, and, when appropriate, acquisition of daily living skills and functional vocational evaluation"^[25].

It has been found that "a deficient transition plan is a procedural flaw" that will only rise to a denial of a FAPE if it impeded the student's right to a FAPE, significantly impeded the parent's opportunity to participate in the decision-making process regarding the provision of a FAPE to the student or caused a deprivation of educational benefits^[26].

FINDINGS OF FACT AND DECISION

It is asserted in the DPC that the DOE, year on year: failed to conduct appropriate evaluations in all areas of the Student’s suspected disabilities; denied the Parent meaningful participation in the Student’s education by increasing his class size and terminating speech services against the Parent’s wishes and prior to holding an IEP meeting to consider the changes for the 2019-2020 SY; and failed to create and implement appropriate IEPs reasonably calculated to enable the Student to make appropriately ambitious progress in light of the Student’s circumstances (Exhibit P-A-4). Several examples are provided in the DPC of the DOE’s failures, including its failure to individualize the Student’s supports and services (Exhibit P-A-4 & -5).

2017-2018 SY:

In addition to the above asserted failures, it is asserted that the DOE failed to hold an IEP meeting when the DOE failed to help the Student make progress; and fully implement his inappropriate IEP (Exhibit P-A-9). Several examples are provided in the DPC to substantiate the inappropriateness of the IEPs developed for the Student for this SY (Exhibit P-A-7 to -9).

The DOE documents in the IEP that the Student, according to the Parent, was not receiving counseling or occupational therapy (“OT”), but only the mandated speech & language (“S/L”) therapy (Exhibit P-J-1). Additionally, it calls for both a “Small class setting” and “Small group instruction” (Exhibit P-J-3 & -4).

2018-2019 SY:

In addition to the above asserted failures, it is asserted that the DOE failed to develop IEP goals that were individualized to the Student; make appropriate program recommendations; and provide the Student with appropriate services (Exhibit P-A-7). Several examples are provided in the DPC to substantiate the inappropriateness of the IEPs developed for the Student for this SY, including that the IEP meeting was procedurally inappropriate (Exhibit P-A-9 to -11).

2019-2020 SY:

In addition to the above asserted failures, it is asserted that the DOE failed to place the Student in the class specified in his IEP; terminated services prior to an IEP meeting; and failed to fully implement the Student’s functional behavioral assessment (“FBA”) (Exhibit P-A-14). Several examples are provided in the DPC to substantiate additional factors contributing the DOE’s denial of a FAPE for this SY (Exhibit P-A-14 to -16).

Although not the Parent’s obligation in the first place, the Parent has made out a substantial case that the DOE denied the Student a FAPE, causing a deprivation of educational benefits, and the DOE has not met its burden in this regard. The District did not offer or provide “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[27] (my emphasis).

The assertions in the DPC are not only supported by the Student’s IEPs (Exhibits P-K, P-J, P-M, P-N, P-X, and P-I), but by the affidavit testimony of the Parent, the Student, and the Parent’s witnesses (Exhibits P-AA, P-BB, P-CC, and P-DD). In addition to the DOE’s concession regarding the provision of a FAPE, I find that these failures cumulatively rise to the level of a gross violation entitling the Parent to relief.

The relief that the Parent sought in the DPC was resolved through partial resolution agreements (Exhibits P-E and P-F), save for the relief that I am tasked with in paragraphs 6 and 7 of the DPC (Exhibit P-A-18). This relief deals with the payment of compensatory services recommended in the vocational evaluation, which in turn addresses the DOE’s failure to ensure that the relevant IEPs adequately focused on providing instruction and experiences that would enable the Student to prepare for later post-school activities, including postsecondary education, employment, and independent living, as well as transition services.

Due to the partial resolution agreements (Exhibits P-E and P-F) and the DOE’s concession that the Student was denied a FAPE, it is unnecessary to address each and every instance that the DOE failed to comply with its obligations under the IDEA.

As to the additional “FAPE denials” that specifically pertain to the remaining relief, I find that the transition plans proposed for the Student are deficient and rise to a denial of a FAPE, that did impede the Student's right to a FAPE, thereby causing a deprivation of educational benefits (Exhibit P-M-5, 10 & -11; P-N-6, -7, -11, & -12; P-X-10, -20, & -21; and P-I-13, -20).

Firstly, a reading of the coordinated set of transition activities as set out in the IEPs merely specifies the services the Student will be receiving under and in terms of the IEPs, mostly shift the responsibility to the Student to access resources or to acquire the skills that have been vaguely described, without providing meaningful guidance for the Parent or the Student to know how to access these resources and skills in any meaningful way.

Additionally, it incorporates services, more specifically the S/L services, that the DOE has removed from the very same IEP, thereby rendering the plan proposed unachievable^[28]. It also relies on Counseling (group or individual) services to provide strategies and supports, where the IEP only catered for Counseling (Group service) 1 times per week for 40 minutes, wholly inadequate for the stated purpose (Exhibit P-N-9). The plans were only superficially “improved” upon from the 2018-2019 SY to the 2019-2020 SY.

If a transition evaluation was done when the DOE’s obligations arose, the Student would have benefited from the evaluators’ recommendations and findings during his high SYs. Having only been conducted in 2021 pursuant to the one partial resolution agreement, the Student would not benefit from the evaluation but for a compensatory award being granted in his favor.

The DOE has not, based purely upon a reading of the said IEPs, complied with its obligations to ensure that the IEPs adequately focused on providing instruction and experiences that would enable the Student to prepare for later post-school activities, including postsecondary education, employment, and independent living, as well as transition services. At best, it had merely “ticketed the box” in completing these sections, without providing meaningful information for the family that would achieve the intended purpose of the sections in the IEPs, as contemplated by the IDEA and the relevant regulations.

The hearing record also supports a finding that the District substantially and materially failed to implement all the Student's mandated special education services during the SYs in issue and that, under the circumstances, when coupled with the District's additional procedural and substantive violations during the development of the Student's IEPs, such failures constituted a gross violation of IDEA^[29].

The DOE has not discharged its burden in these proceedings and the Parent is entitled to relief.

APPROPRIATE REMEDY

Compensatory Education or Services:

Parent is seeking compensatory education or compensatory services for the DOE’s failure to provide the Student with a FAPE. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE^[30].

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA^[31].

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case and can be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA^[32].

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period^[33].

The hearing record supports a finding that this case presents the situation where a student has graduated with a local diploma and lacks statutory eligibility but has nevertheless met the threshold for compensatory education because the special education services to which he had been entitled were denied to him for a substantial period without justification.

Given the duration of the deprivation and the testimony on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e., the quantitative approach).

Parent’s representative took a position and made clear the compensatory hours that should be awarded with respect to the type and scope of compensatory education that would be appropriate (T. P93, L22-25; P94, L1-4; T. P121, L10-22). Parent’s witnesses detailed, as part of their recommendations, compensatory related services as follows:

• 6-9 hours per week of Life Skills and Vocational Rehabilitation services/training, for three years (Exhibit P-CC-5, pars. 26, 27, & 29) (i.e., 240-360^[34] hours per SY).
• 4 hours per month of Transition Coordination services, for three years (Exhibit P-CC-5, pars. 28 & 29) (i.e., 40^[35] hours per SY).
• Special Education Teacher Support Services (“SETSS”) for tutoring to increase the Student’s reading and writing comprehension, the “number of hours to be determined by an educational evaluation” (Exhibit P-DD-2, par. 11). The Parent is claiming 500 hours.

Parent’s Witness 2 detailed the cost for each of the above recommended services in the sums of $145 per hour, $125 per hour and $125 per hour, respectively (Exhibit P-DD-2, par. 11), which amounts I find to be reasonable.

No witnesses were called by the DOE to substantiate the number of compensatory hours that would be appropriate, having conceded that a FAPE deprivation occurred, and the District’s representative did not challenge the veracity of the Parent’s position through cross-examination or challenges to the testimony of Parent’s witnesses, and even confirmed that the DOE does not object to the relief being sought.

The record supports a finding that the Student is entitled to these compensatory services, as recommended by Parent’s Witness 1 and Witness 2 (subject to the adjustments below), which are linked to the deprivation of services that the Student experienced during the three SYs years in issue.

Compensatory hours for Life Skills and Vocational Rehabilitation services/training and Transition Coordination Services:

The formulation of the various recommended hours in each domain should however not disregard in its entirety the program and related services provided to the Student as a whole, over the SYs in issue. In analyzing the complete educational program offered in each IEP relevant to each SY in issue, I find that although the DOE’s offering did fall short of providing the Student with a FAPE, the DOE still attempted to meet its obligations, re-evaluate the Student, revise his program, including adjusting management needs, interventions and goals compared to prior programs offered.

The programs were not insubstantial and efforts were made by the DOE to provide the Student with "personalized instruction” and educational benefits, which would have contributed to address the Student’s deficits and diminish his maladaptive behaviors that interfere with skill acquisition, albeit not at a level that resulted in the DOE providing the Student with a FAPE under the regulations or at a level to prevent regression.

The Measurable Postsecondary Goals section of the IEPs for the 2017-2018 SY, including Education/Training; Employment; Independent Living Skills and Transitions Needs sections are all blank (Exhibit P-K-5; P-J-5). The student was however only REDACTED at the start of the SY, turning REDACTED during the SY on REDACTED, and remaining so for the balance of the 2017-2018 SY. As indicated above, the DOE’s obligations to include in the Student’s IEP appropriate measurable postsecondary goals based upon age-appropriate transition assessments related to training, education, employment, and, if appropriate, independent living skills only arose when the Student turned 15 under State regulations, or younger if determined appropriate by the CSE. The record does not contain evidence that the CSE made any such determination. Accordingly, the DOE was only obligated to make provision for measurable postsecondary goals etc. for two out of the three SYs in issue.

Parent’s Witness 1 however calculated the Student’s services for three years as it “is important that [Student] receives these services for 3 years because these services should have been provided when he was in high school” (Exhibit P-CC-5, par. 29).

Furthermore, a District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of FAPE to the child^[36]. The term ESY services means special education and related services that: are provided to a child with a disability i) beyond the normal SY of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency^[37].

Based on the IEP teams’ findings and recommendations for all three SYs in issue, ESY was neither found necessary nor recommended^[38]. Based on the testing and findings in the reports on record, notwithstanding the lack of supporting testimony from the DOE; the assertions in the DPC; and the recommendations and testimony of Parent’s witnesses, I do not find that the record supports a 12-month program to prevent regression based upon one of the methods of analysis^[39] that would have required the DOE to provide ESY programming services on an individual basis to provide the Student with a FAPE during those SYs. I will also point out that the Authors of the Neuropsychological Evaluation (Exhibit P-B), whose evaluations were more current for the SYs in issue having assessed the Student at the end of the 2018-2019 SY and before the start of the 2019-2020 SY (Exhibit P-B-1), did not make an outright recommendation for 12-month program as part of the recommendations (Exhibit P-18 to -25).

The compensatory education or services award is accordingly based on the normal SY in calculating compensatory hours.

Lastly, there is also authority that bears mentioning in the context of the relief sought, namely:

“Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]”.

I am mindful that an overwhelming quantity of hours awarded has the potential to be burdensome.

These above considerations have factored into my calculation of compensatory hours awarded as follows (rounding has been used in the calculation, where required):

• Life Skills and Vocational Rehabilitation services/training - adjusted award: compensatory hours being awarded, being the sum of:
• 17/18 SY: 6 hours per week x 40 weeks x 0 = 0
• 18/19 SY: 6 hours per week x 40 weeks x 0.75 = 180
• 19/20 SY: 6 hours per week x 40 weeks x 0.70 = 168 Total: = 348 hours
• Transition Coordination services - adjusted award: compensatory hours being awarded, being the sum of:
• 17/18 SY: 4 hours per month x 10 months x 0 = 0
• 18/19 SY: 4 hours per month x 10 months x 0.75 = 30
• 19/20 SY: 4 hours per month x 10 months x 0.70 = 28 Total: = 58 hours Compensatory hours for Special Education Teacher Support Services (SETSS) tutoring:

The parties resolved all the relief in the DPC, save for the relief requested in points 6 & 7 of the DPC (Exhibit P-A-18). The two partial resolution agreements were included in the Parent’s disclosed documents (Exhibit P-E & -F). The box next to the following provision in the earlier partial resolution agreement was ticked: “To the extent the parties agreed to items identified above as a partial settlement of claims contained in the impartial hearing request, dated 6/5/20, and filed by the parent, this agreement is legally binding and is enforceable in any State court of competent jurisdiction or in a district court of the Unites States.” (Exhibit P-E-2). The later partial resolution agreement contains a similar provision (Exhibit P-F-2).

It is noted that part of the earlier partial resolution specifically included tutoring services not to exceed 750 hours (Exhibit P-E-1). Accordingly, the parties resolved to settled partially, some of the DOE’s failure to provide the Student with a FAPE by providing the Student with tutoring. Accordingly, for the Parent to be successful with a claim for tutoring services, it would, by necessity, need to relate to the relief that was not resolved by the partial resolution agreements, otherwise it has been settled.

Parent states in her affidavit that for the Student to achieve the goals developed and described in the evaluation conducted by the “Transition Evaluator”, the Student will need help with reading and writing through tutoring (Exhibit P-AA-5, paras. 42, read with 41). Parent requests tutoring with the number of hours to be determined by the evaluator (Exhibit P-AA-6, par. 45; Exhibit P-C-21).

Parent’s Witness 2 confirms that, as part of the Transition Evaluation Summary, it was recommended that the Student receive a SETSS provider, as a special education tutor, to increase the Student’s reading and writing comprehension, where it is noted that the Student “received tutoring in the past and would continue to benefit from further guidance in writing by a SETSS Provider” (Exhibit P-CC-22) and that the “number of tutoring hours should be determined by an educational evaluation” (Exhibit P-DD-2, par. 11). As indicated above, Parent’s representative has requested 500 hours of tutoring.

In assessing: i) the purpose for which the tutoring services have been recommended, namely, to improve or increase reading and writing comprehension, and linking that with the assessments conducted by Parent’s Witness 1, the results of which are captured in the Transition Evaluation Summary; and ii) Parent’s Witness 1’s testimony also related to these services and the goals that would be addressed, either directly or indirectly, from these services specifically (Exhibit P-C & P-CC), I find that no more than a third of the hours requested would be necessary, linking it specifically to the outstanding transition services and post-secondary goals that the evaluators are seeking to address as more fully described in their evaluation.

These above considerations have factored into my calculation of compensatory hours awarded as follows (rounding has been used in the calculation, where required):

• Special Education Teacher Support Services (SETSS) tutoring - adjusted award: compensatory hours being awarded:
• 500 hours claimed x 0.34 = 170 Total: = 170 hours Other than the reasons provided for adjusting the award for compensatory services, I do not find any other equitable factors applicable.

ORDER

Based upon the above Findings of Fact, it is hereby:

• ORDERED that, the DOE shall fund the following compensatory services for the Student, which may be provided during the SY or during the summer, on weekdays, weekends, on holidays, or during school vacations, by a provider of the Parent’s own choosing at the provider’s customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #2 of this Order for each of the services:
• 348 compensatory hours of Life Skills and Vocational Rehabilitation services/training by a New York State licensed Social Worker and/or Community Life Skills Trainer; and
• 58 compensatory hours of Transition Coordination services by a New York State licensed Transition Coordinator; and
• 170 compensatory hours of SETSS, by a New York State licensed Special Education Teacher, by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
• FURTHER ORDERED that, the bank of compensatory services set out in #1 of this Order shall not expire until the earlier of: i) the expiration of 2 (two) years from the date of this Order; or ii) when the Student graduates from college, and that the amount payable by the DOE for each of the services to the providers of the Parent’s own choosing shall be limited as follows:
• Compensatory Life Skills and Vocational Rehabilitation services/training at a rate not to exceed $145 per hour.
• Compensatory Transition Coordination services at a rate not to exceed $125 per hour.
• Compensatory SETSS at a rate not to exceed $125 per hour.
• FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
• FURTHER ORDERED that, the DOE shall provide the Student with a Metro Card to travel to and from the service provider(s) providing the awarded compensatory services.

SO ORDERED.

DATED: June 1, 2022

__H.A.C._(Signed Electronically)___

Impartial Hearing Officer

Harry A. Christodoulou

NOTICE OF RIGHT TO APPEAL

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

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

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

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

PARENT EVIDENCE

Exhibit

Title

Date

Pages

Impartial Hearing Request

06/05/2020

Center Neuropsychological Evaluation

05/__/2019

06/__/2019

Service Provider Transition Evaluation

10/15/2021

New York State Education Department Fact Sheet: Level 2 Career Assessment

Retrieved

05/06/2022

Partial Resolution Agreement

07/02/2020

Partial Resolution Agreement

06/08/2021

Parent Letter Requesting Reevaluation

01/10/2017

Psychoeducational Evaluation

02/22/2017

IEP Amendment on April 3, 2020

04/07/2020

IEP Amendment (to be implemented on October 10, 2017)

05/03/2017

IEP (to be implemented on May 17, 2017)

05/03/2017

Speech Recommendations

11/20/2017

IEP

05/04/2018

IEP

05/15/2019

IEP Signature Page May

05/15/2019

Report Card

05/15/2019

Functional Behavior Assessment

06/17/2019

Behavioral Intervention Plan

06/18/2019

Speech Evaluation

06/21/2019

Assistive Technology Evaluation

07/10/2019

Assistive Technology Evaluation Signature Page

07/10/2019

Assistive Technology Handwriting Sample by Student

07/10/2019

Speech Evaluation

07/25/2019

IEP (Meeting and to be implemented on October 24, 2019)

12/04/2019

Summer School Retention Letter from NYC DOE to Parent

06/22/2020

Disclosure Letter from Parent’s Counsel to DOE Counsel

05/06/2022

AA.

Parent, Direct Testimony by Affidavit

05/11/2022

BB.

Student, Direct Testimony by Affidavit

05/10/2022

CC.

Social Worker and Life Skills Trainer, Service Provider, Direct Testimony by Affidavit

05/11/2022

DD.

Director of Clinical Services, Service Provider, Direct Testimony by Affidavit

05/11/2022

IHO EVIDENCE

Exhibit

Title

Date

Pages

APPENDIX

REDACTED

Footnotes

[1] U.S.C. § 1400 et seq.

[2] C.F.R. § 300 et seq.

[3] Educ. Law Art. 89 § 4404 et seq.

[4] NYCRR § Part 200.

[5] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[6] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[7] U.S.C. § 1415[f][3][E][i].

[8] Rowley, 458 U.S. at 203.

[9] U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; 20 U.S.C. § 1414[d]; 34 CFR 300.320.

[10] T.L. v. New York City Dep't of Educ., 2012 WL 1107652, *14 [E.D.N.Y. Mar. 30, 2012]; D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *13 [E.D.N.Y. Sept. 2, 2011]; A.L. v. New York City Dep't of Educ., 812 F. Supp. 2d 492, 503 [S.D.N.Y. 2011]; A.P. v. Woodstock Bd. of Educ., 370 Fed. App'x 202, 205, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821-22 [9th Cir. 2007]; Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 [5th Cir. 2000].

[11] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998], at 132.

[12] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[13] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[14] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003].

[15] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].

[16] NYS Educ. Law § 4404(1)(c).

[17] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.

[18] U.S.C. § 1415[f][3][E][i].

[19] CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal Nos. 05-084; and 05-037.

[20] Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100.

[21] NYCRR100.5[b][7][iii]; 34 CFR 300.102[a][3][i].

[22] See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001].

[23] U.S.C. § 1401[34]; see Educ. Law § 4401[9]; 34 CFR 300.43; 8 NYCRR 200.1[fff].

[24] U.S.C. § 1414[d][1][A][i][VIII]; 34 CFR 300.320[b]; 8 NYCRR 200.4[d][2][ix].

[25] U.S.C. § 1401[34][B]-[C]; 8 NYCRR 200.1[fff]).

[26] M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6, *9 [S.D.N.Y. Mar. 21, 2013], citing Klein Indep. Sch. Dist. v. Hovem, 690 F.3d 390, 398 [5th Cir. 2012] and Bd. of Educ. of Tp. High Sch. Dist. No. 211 v. Ross, 486 F.3d 267, 276 [7th Cir. 2007]; F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *8-*9 [S.D.N.Y. June 8, 2016]; C.W. v City Sch. Dist. of the City of New York, 171 F. Supp. 3d 126, 134 [S.D.N.Y. 2016]; J.M. v New York City Dep't of Educ., 171 F. Supp. 3d 236, 247-48 [S.D.N.Y. 2016]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *11 [S.D.N.Y. Mar. 19, 2013.

[27] Rowley, 458 U.S. at 203.

[28] Compare “Acquisition of Daily Living Skills” (Exhibit P-I-20) with “Related Services” (Exhibit P-I-17).

[29] French v. New York State Dept. of Educ., 476 Fed. Appx. 468, 471-72 [2d Cir. Nov. 3, 2011].

[30] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[31] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

[32] See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]; 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5].

[33] See Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078.

[34] Based upon a 10-month SY, or 276-414 hours based upon a 12-month SY.

[35] Based upon a 10-month SY, or 46 hours based upon a 12-month SY.

[36] C.F.R. § 300.106[a][2].

[37] C.F.R. § 300.106[b].

[38] It appears that 12-month programming had been recommended in middle school (See “Academic History – Exhibit P-B-4).

[39] Regression-recoupment analysis (Cordrey v. Euckert, 17 IDELR 104 (6th Cir. 1990)); Significantly jeopardized analysis (M.M. v. School Dist. of Greenville County, 37 IDELR 183 (4th Cir. 2002)); Substantial regression analysis (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 557 IDELR 315 (5th Cir. 1986)); Additional factors analysis (Johnson v. Independent Sch. Dist. No. 4 of Bixby, Tulsa County, Okla., 17 IDELR 170 (10th Cir. 1990), cert. denied, 110 LRP 38025, 500 U.S. 905 (1991)).

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

ORDER