Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 194898

New York City Department of Education, Impartial Hearing Decision

September 12, 2022·Jeffrey J. Schiro·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

NYSED # 538170 / NYC # 194898

FINDINGS OF FACT & DECISION

Case Number: 194898

Student Name: [REDACTED]

(hereinafter referred to as the “Student”)

Date of Birth: [REDACTED]

District: REDACTED

Hearing

Requested By Parent

Date of

Hearing: March 18, 2021

Actual Record

Close Date: September 5, 2022

Hearing

Officer: Jeffrey J. Schiro, Esq.

Date of

Decision: September 12, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 18, 2021

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

[REDACTED], Assistant Director of Education, [REDACTED] Center

For the Department of Education:

[REDACTED], District Representative

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 requested by the attorneys for the student and the parent in a due process complaint notice dated June 30, 2020. 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 2020/21 school year (Ex. P-A).[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, parents, 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

On July 7, 2020, the DOE appointed the undersigned to serve as the hearing officer in this matter. See 8 NYCRR § 200.5(j)(3)(i). On July 14, 2020, the parties entered into a pendency agreement which called for the DOE to fund the student’s private educational placement and services for the duration of these proceedings (Ex. P-C). 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). A pre-hearing conference with the parties was held on January 25, 2021 to clarify the hearing issues and set a date for the hearing (R. 2-11). See 8 NYCRR § 200.5(j)(3)(xi). A hearing on the merits of the matter was thereafter held on March 18, 2021.[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 June 30, 2020 due process complaint, the student was [REDACTED] years old and has been diagnosed with autism (Exs. P-A at 1-2, P-U at 1). For the 2020/21 school year, the student received specialized instruction and related services from the [REDACTED] (hereinafter referred to as the “Private School”), which has not been approved by the Commissioner of Education as schools and/or providers 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 autism is not in dispute in this hearing (Ex. P-A at 2). See 34 C.F.R. § 300.8(c)(1); 8 NYCRR § 200.1(zz)(1).[3]

Due to his autism, the student displays a variety of deficits and interfering behaviors. These deficits are pervasive, and they involve delays in the behavioral, communication, social, physical and academic domains. The student also has weaknesses in the areas of expressive and receptive language, cognition, focus, attention, eye contact, behavior, socialization, activities of daily living (“ADL”), and gross and fine motor development. He also displays sensory sensitivities (Ex. P-R at 5).

The CSE did not develop an IEP for the student for the 2020/21 school year; nor was the parent provided with notice of a specific educational placement for the student for that school year (Exs. P-A at 10, P-U at 8, P-V at 8). The parent asserts that the absence of an IEP or educational placement for the student for the 2020/21 school year denied him a FAPE on both procedural and substantive grounds. This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The DOE

At the hearing, the DOE declined to make any presentation that it offered the student a FAPE for the 2020/21 school year (R. 27-28).

B. The Parent The DOE should be ordered to reimburse the parent, and/or directly pay, for the student’s unilateral placement at the Private School for the 2020/21 school year on a twelve (12) month basis. The DOE denied the student a FAPE during the 2020/21 school year. The parent received neither an IEP, nor notice of an educational placement offer, for the student for the 2020/21 school year. The student has made significant progress while placed at the Private School. There are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private educational instruction and services. The DOE should also be directed to fund a bank of compensatory educational services for the student (R. 28-33; Exs. P-A, P-U, P-V).

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).[4]

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).

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. Tuition Reimbursement/Direct Payment

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).

1. Recommended Public Program In general, the IDEA and state regulations require that a district must have an IEP in effect at the beginning of each school year for each child in its jurisdiction with a disability. See 34 C.F.R. § 300.323(a); 8 NYCRR § 200.4(e)(1)(ii); Cerra, 427 F.3d at 194; K.L. v. New York City Dep't of Educ., 2012 WL 4017822, at *13 (S.D.N.Y. Aug. 23, 2012), aff'd, 530 Fed. App'x 81, 2013 WL 3814669 (2d Cir. July 24, 2013); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 614 (E.D.N.Y. 2012). Although not explicitly stated in federal or state regulation, implicit in a school district's obligation to implement an IEP is the requirement that, at some point prior to, or contemporaneous with, the date of initiation of services under the IEP, a school district must notify parents of the bricks and mortar location of the special education program and related services in a student's IEP. See Application of the New York City Dep’t of Educ., Appeal No. 14-083 at 13 (SRO Jan. 8, 2015).

At the hearing, the DOE declined to make any presentation that it offered the student a FAPE for the 2020/21 school year (R. 27-28). There is no evidence contained in the hearing record of the DOE developing an IEP or recommending an educational placement for the student for the 2020/21 school year. Accordingly, I find that the DOE denied the student a FAPE for the 2020/21 school year.

2. Appropriateness of the Private School

Given my finding that the DOE failed to provide the student with a FAPE during the 2020/21 school year, 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). A parent 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. A parent 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 the Assistant Director of Education at the Private School and the parent, I find that the Private School was an appropriate program for the student because it provided him with specifically designed, individualized instruction to meet his unique educational needs and sufficient support services to permit him to benefit educationally from that instruction (Exs. P-A, P-H, P-J, P-L, P-M, P-T at 3, 6, P-U).

The Private School’s program uses ABA provided by highly trained staff, including BCBAs. ABA is the science in which the procedures derived from the principles of behavior are systematically applied to improve socially significant behavior to a meaningful degree and to empirically demonstrate that the procedures employed were responsible for the improvement in behavior. At the Private School, students are placed in small classes and receive 1:1 or 2:1 instruction appropriate to their needs. The program includes an emphasis on verbal behavior, self-management and independent leisure skills, and social skills, as well as academic instruction. A transdisciplinary model ensures consistency and collaboration across the departments of SLT, OT and the student's classroom. The Private School also has a sensory gym, as well as opportunities for social interactions with neuro-typically developing peers. Parent training and education is also a part of the Private School’s program (Ex. P-T at 2-3).

During the 2020/21 school year, the student was enrolled in a class with eight (8) students, including both remote and in-person students, and has a 1:1 teaching ratio. Due to Department of Health / Center for Disease Control recommendations for social distancing during the Covid-19 Pandemic, the student’s classroom was divided into two cohorts. The student participated in remote instruction during July and August 2020, when school buildings were not permitted to be open as per the directive of state authorities. The student returned to in-person instruction on September 10, 2020 and remained learning in-person until October 30, 2020, when he was required to quarantine due to direct exposure to Covid-19. Remote instruction was provided during that quarantine period. Due to increasing rates of Covid-19 and concern for his health and safety, the student remained in remote instruction following his quarantine period. During September and October 2020, the student was in a cohort with two other students and a 1:1 teaching ratio (Ex. P-T at 4).

The student received occupational therapy at the private school during the school day during the 2020/21 school year. The student presented with sensory dysregulation and sensory seeking behaviors, which impacted his ability to complete gross motor and tabletop tasks. During occupational therapy sessions, the student required frequent sensory breaks, in the form of proprioceptive and/or vestibular input, in order to increase his attention and participation. Sensory breaks included activities such as weight-bearing yoga poses and watching calming videos. To improve his sensory regulation skills, the student worked on initiating and engaging in a sensory activity for a prolonged period of time (Ex. P-T at 8-9).

The student received speech and language therapy services at the private school during the 2020/21 school year. With that therapy, the student made progress in the areas of receptive and expressive language, operational competence relating to his AAC, pragmatic language and play skills. The student demonstrated progress following a 1-step direction, identifying objects needed for routines/activities, using varied 2-word phrases to request highly desired objects and expanding his expressive vocabulary to include familiar actions. The student also made progress in the area of pragmatic language with requesting recurrence of objects/activities, directing the actions of others and requesting assistance. Within play skills, the student made progress with turn-taking (Ex. P-T at 9).

3. Relevant Equities The final criterion for a reimbursement/direct payment award is that a 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 and/or direct payment 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 relevant equities support an award of tuition reimbursement and/or direct payment for the student’s placement at the private school for the 2020/21 school year. In a letter dated June 14, 2020, the parent provided adequate prior notice to the DOE of her intent to make a unilateral placement of the student at the private school at public expense (Ex. P-D). There is also no evidence indicating that the parent was uncooperative with the CSE, see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the cost of the student’s tuition to the Private School unreasonable given the severity of the student’s educational needs, see Carter, 510 U.S. at 16.

C. 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 demonstrate that it offered the student a FAPE for the 2020/21 school year. Private after-school services, which the student has received since 2013, were suspended in March 2020 due to the COVID-19 pandemic (Exs. P-S at 3-4, P-V at 19). I therefore find that the student is entitled to compensatory additional services to remedy the denial of FAPE. I shall apply a qualitative approach in fashioning a compensatory remedy of additional services for the student.

The student displays maladaptive behaviors that interfere with his skill acquisition. These behaviors included aggressions, environmental destruction, climbing, flopping, self-touching or touching others, elopement, and shoe removal. ABA-based tactics to address his behaviors include positive reinforcement for appropriate behaviors, response blocking, redirection, functional communication and planned ignoring (Ex. P-S at 4).

According to the credible testimony of [REDACTED], the student requires programming tailored to his deficits. This includes a highly structured 1:1 environment, l: 1 support by therapists trained on antecedent and consequence-based strategies to maintain his safety and manage maladaptive behaviors, dense schedules of reinforcement, programed prompting that is systematically faded, the use of a token economy system, behavioral momentum, shaping and visual supports, and the use of task analyses to break down longer chains into small, discrete targets to teach (Ex. P-S at 4).

Both [REDACTED] and [REDACTED] recommended that the student receive the following after-school services, in both center-based and home-based settings: ten (10) hours per week of 1:1 ABA; 1:1 occupational therapy, two (2) times per week for forty-five (45) minutes per session; and 1:1 speech/language therapy, five (5) times per week for sixty (60) minutes per session (Exs. P-S at 4, P-T at 10).

The DOE will therefore be directed to fund a compensatory bank of the following services: 460 hours of after-school 1:1 ABA to be provided in a center-based setting or the home (calculated by multiplying ten (10) hours per week of service by a forty-six (46) week school year); 230 hours of after-school speech/language therapy to be provided in a center-based setting or the home (calculated by multiplying five (5) hours per week of service by a forty-six (46) week school year); and sixty-nine (69) hours of after-school occupational therapy to be provided in a center-based setting or the home (calculated by multiplying 1 1⁄2 hours per week of service by a forty-six (46) week school year).

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 2020/21 school year is SUSTAINED;

2. Within thirty (30) days of its receipt of this Order, the DOE shall reimburse the parent, and/or directly pay the Private School for all costs, including related services, associated with the student’s placement there during the twelve (12) month 2020/21 school year;

3. The DOE should continue to fund, through direct payment, the Private Program to provide the student with ten (10) hours per week of one-to-one, after-school ABA therapy, individual speech therapy (“SLT”), five (5) times per week for sixty (60) minutes per session, and individual after-school occupational therapy (“OT”) using assistive technology, two (2) times per week for forty-five (45) minutes per session, all to be delivered to the student in a center-based setting or in the home, during the twelve (12) month 2020/21 school year;

4. The DOE shall provide special education transportation in an air-conditioned minibus, including limited travel time, to and from the Private School and to and from after school ABA, SLT and OT, and the DOE shall reimburse the parent for any out-of-pocket expenses associated with said transportation of the student during the twelve (12) month 2020/21 school year within thirty (30) days of its receipt of adequate proof-of-payment.

5. The DOE shall fund a bank of compensatory services to be provided in a center-based setting or the home including 460 hours of afterschool 1:1 ABA, 230 hours of after school SLT and 69 hours of after school OT; and

6. Within thirty (30) days of its receipt of this Order, the DOE shall provide the student with a new replacement Speech Generating Device in the form of an iPad® equipped with

Proloquo2Go® software.

Dated: September 12, 2022

____________________

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

  • • Due Process Complaint Notice/Impartial Hearing Request, 6/30/20, 15 pgs.
  • • Findings of Fact & Decision (Case No. 173931) IHO Jeffrey J. Schiro, 4/6/20, 19 pgs.
  • • Pendency Agreement, 7/14/20, 4 pgs.
  • • Ten Day Notice, 6/14/20, 3 pgs.
  • • Class Schedule (in-person), 2020/21, 1 pg.
  • • Class Schedule (remote), 2020/21, 1 pg.
  • • Class Schedule, summer 2020, 1 pg.
  • • Program Features, 2020/21, 8 pgs.
  • • Remote Learning at the Private School, 7/6/20, 3 pgs.
  • • FBA & BIP, 9/2020, 21 pgs.
  • • FBA & BIP (remote instruction), 11/2020, 5 pgs.
  • • Classroom Goals, 2020/21, 7 pgs.
  • • Educational Progress Report, 7/2020 – 12/2020, 5 pgs.
  • • Occupational Therapy Goals, 2020/21, 2 pgs.
  • • Occupational Therapy Progress Report, 9/2020 – 12/2020, 5 pgs.
  • • Speech/Language Goals, 2020/21, 2 pgs.
  • • Speech/Language Therapy Progress Report, 7/2020 – 12/2020, 5 pgs.
  • • Findings of Fact & Decision (Case No. 183825) IHO Jeffrey J. Schiro, 2/8/21, 20 pgs.
  • • Affidavit of [REDACTED], 3/11/21, 20 pgs.
  • • Affidavit of [REDACTED], 3/11/21, 5 pgs.
  • • Affidavit of Parent, 3/11/21, 9 pgs.
  • • Parent’s Closing Statement, 4/20/21, 24 pgs.

DEPARTMENT OF EDUCATION

None

IMPARTIAL HEARING OFFICER

  • • Extension Order, 9/13/20, 1 pg.
  • • Extension Order, 10/13/20, 1 pg.
  • • Extension Order, 11/12/20, 1 pg.
  • • Extension Order, 12/12/20, 1 pg.
  • • Extension Order, 1/11/21, 1 pg.
  • • Extension Order, 2/10/21, 1 pg.
  • • Extension Order, 3/12/21, 1 pg.
  • • Extension Order, 4/11/21, 1 pg.
  • • Extension Order, 5/11/21, 1 pg.
  • • Extension Order, 6/10/21, 1 pg.
  • • Extension Order, 7/10/21, 1 pg.
  • • Extension Order, 8/9/21, 1 pg.
  • • Extension Order, 9/8/21, 1 pg.
  • • Extension Order, 10/8/21, 1 pg.
  • • Extension Order, 11/7/21, 1 pg.
  • • Extension Order, 12/7/21, 1 pg.
  • • Extension Order, 1/6/22, 1 pg.
  • • Extension Order, 2/5/22, 1 pg.
  • • Extension Order, 3/7/22, 1 pg.
  • • Extension Order, 4/6/22, 1 pg.
  • • Extension Order, 5/6/22, 1 pg.
  • • Extension Order, 6/5/22, 1 pg.
  • • Extension Order, 7/5/22, 1 pg.
  • • Extension Order, 8/4/22, 1 pg.
  • • Extension Order, 9/3/22, 1 pg.

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 accommodate 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. 9-10, 55-57; Exs. IHO-I – IHO-XXV). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Autism means a developmental disability significantly affecting verbal and nonverbal communication and social interaction, generally evident before age 3, that adversely affects a student’s educational performance. Other characteristics often associated with autism are engagement in repetitive activities and stereotyped movements, resistance to environmental change or change in daily routines, and unusual responses to sensory experiences. The term does not apply if a student’s educational performance is adversely affected primarily because the student has an emotional disturbance as defined in paragraph (4) of this subdivision. A student who manifests the characteristics of autism after age 3 could be diagnosed as having autism if the criteria in this paragraph are otherwise satisfied. 8 NYCRR § 200.1(zz)(1).

[4] 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.