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Special Education Law
DECISIONParent PrevailedIHO Case No. 194924

New York City Department of Education, Impartial Hearing Decision

July 17, 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.

FINDINGS OF FACT & DECISION

Case Number: 194924

Student Name: [REDACTED]

(hereinafter referred to as the “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

(hereinafter referred to as the “School District”)

Hearing Requested By: Parents

Dates of Hearings: July 10, 2020

May 18, 2021

November 17, 2021

Actual Record Close Date: July 3, 2022

Hearing Officer: Jeffrey J. Schiro, Esq.

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

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 17, 2021

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent

For the Department of Education:

[REDACTED], District Representative

[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 originally requested by the attorneys for the student and the parent in a due process complaint dated June 30, 2020. The parents later filed an amended due process complaint on October 21, 2020. See 8 NYCRR § 200.5(i)(7)(i). The primary issue to be determined at this hearing is whether the School District offered the student a free appropriate public education (“FAPE”) for the 2020/21 school year (Exs. P-A, P-Q).[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 of the resolution session period. 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 subsequently appeal 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 School District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). At a hearing held on July 10, 2020, the parents moved for an interim order on pendency (R. 7-8; Ex. P-A at 15). 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 School District did not oppose the parents’ motion (R. 8). In an Interim Order on Pendency dated July 14, 2020, the School District was directed to maintain the student’s placement at his private school, with related services both in-school and after-school, at public expense for the duration of these proceedings (Ex. P-C at 8).

On April 26, 2021, a pre-hearing conference with the parties was held to clarify the hearing issues and set dates for the hearing (R. 16-24). See 8 NYCRR § 200.5(j)(3)(xi). Hearings on the merits of the matter were thereafter held on May 18, 2021 and November 17, 2021 (R. 26, 57).[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 21, 2020 amended due process complaint, the student was [REDACTED] years old and is a deaf/blind student who displays a variety of physical, medical, hearing, and vision deficits. He demonstrates significant delays in communication, speech and language, gross motor skills, fine motor skills, and social/emotional development. The student has also been diagnosed with CHARGE syndrome. For the last several years, the student has attended a twelve (12) month program at a State-approved nonpublic school (Ex. P-Q at ¶¶ 6-8). See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with deaf blindness is not in dispute in this hearing (Exs. P-Q, SD-5 at 1).[3] See 34 C.F.R. § 300.8(c)(3); 8 NYCRR § 200.1(zz)(3).

The parties’ familiarity with the student’s educational history prior to the 2020/21 school year is assumed and will not be restated here.[4]

On May 26, 2020, the CSE convened to develop an IEP for the student for the 2020/21 school year. The CSE recommended that the student receive the majority of his instruction in an 8:1+1 in a New York State-supported “4201 school” on a twelve (12) month basis, supported by an ASL/English intervenor.[5] The CSE also recommended that the student receive related services of: specialized transportation (i.e., a bus nurse, air conditioned mini bus, and limited time travel); individual occupational therapy, two (2) times per week for thirty (30) minutes per session; group parent counseling and training, monthly; individual physical therapy, two (2) times per week for thirty (30) minutes per session; full-time individual school nurse services, daily; and individual speech and language therapy, three (3) times per week for thirty (30) minutes per session (Ex. SD-5 at 13-15, 18). The parents object to the May 2020 IEP on a number of procedural and substantive grounds. The parents object to the absence of after-school services from the May 2020 IEP. They also object to the removal of in-school vision education services from the May 2020 IEP (Ex. P-Q at 13). This hearing ensued.

IV. POSITIONS OF THE PARTIES

A. The School District The School District did not submit a due process response, did not offer an opening or closing statement, and did not present any witness testimony at the hearing. The School District rested following its submission of written evidence into the hearing record (R. 39).

B. The Parents The School District denied the student a FAPE during the 2020/21 school year. The student requires a myriad of after-school services to meet his occupational, physical, speech and language, and vision therapy needs; yet year after year, the CSE terminates those services, based on local and/or State policies rather than the student’s individualized needs, and requires the family to pursue those service via due process. The CSE also deleted vision education services from the student’s IEP, rather than attempt to secure those necessary services for the student through other means.

The May 2020 IEP was not provided to the parents until July 18, 2020, after the start of the twelve (12) month 2020/21 school year.

The student did not receive all ordered after-school speech/language therapy services under pendency. The student’s prior provider closed her practice in spring 2020 due to the COVID-19 pandemic and the parents were not able to secure another provider until January 20221. The parents seek compensatory educational services to remedy the denial of FAPE during the 2020/21 school year (R. 40-48; Exs. P-A, P-Q).

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: (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected, 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).[6]

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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); 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). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and 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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); 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. The "IDEA, [however,] does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. “The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." 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 Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). 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).[7]

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. Recommended Public Program

Based on the evidence contained in the hearing record, I find that the student was denied a FAPE during the 2020/21 school year on both procedural and substantive grounds.

In general, the IDEA and State regulations require that a school 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).

Once an IEP is developed and a parent consents to a school district's provision of special education services, the IDEA is clear such services must be provided to the student by the school district in conformity with the student's IEP. See 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320. 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 an 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).

Procedurally, the parents assert (and the School District does not dispute) that they did not receive a copy of the May 2020 IEP until July 18, 2020; well after the start of the twelve (12) month 2020/21 school year (Ex. P-Q at ¶¶ 98-99). [8] Likewise, no evidence was offered for entry into the hearing record that the School District ever offered the student an educational placement capable of implementing May 2020 IEP. The School District’s failure here to provide the student with an IEP or placement offer prior to the start of the twelve (12) month 2020/21 school year impeded the student's right to a FAPE. 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).

Substantively, appropriate and necessary services were terminated by the CSE without evaluation or explanation. Both in-school vision education services, and multiple after-school services, were omitted from the May 2020 IEP despite input from the parent and the student’s private providers, as well as the November 9, 2017 FOFD (concerning the 2016/17 school year), the March 5, 2020 FOFD (concerning the 2017/18 and 2018/19 school years), and the February 7, 2021 FOFD (concerning the 2019/20 school year), which all held that the student required those services in order to receive a FAPE (Exs. P-F, P-H, P-B, P-M, P-N, SD-5 at 13-15).

C. Compensatory Educational Services

As relief for the School District’s denial of FAPE, the parents seeks an Order directing the School District to authorize the student’s receipt of compensatory educational services (Ex. P-Q at 17).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case where a denial of FAPE has occurred. See Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015); L.O. v. New York City Dep't of Educ., 822 F.3d 95, 125 (2d Cir. 2016); Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147 (N.D.N.Y. 1997). Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 & n.12 (2d Cir. 2014); Newington, 546 F.3d at 123 (holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE).

Likewise, SROs have awarded compensatory 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 Board of Educ. of City Sch. Dist. of Buffalo v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO 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).

Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the school district complied with its obligations under the IDEA. See Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address... the problems with the IEP"); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"); Board of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"); Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA").

Given my earlier finding that the School District denied the student a FAPE during the 2020/21 school year, I now conclude that the student is entitled to compensatory educational services to remedy that FAPE denial. Using the credible testimony (via affidavit) of the student’s intervenor, physical therapist, speech therapist, vision therapist and the parent, I shall apply a qualitative approach in fashioning a remedy of compensatory educational services for the student (Exs. P-I, P-J, P-K, P-L, P-O, P-P).

  • • Intervenor Services The CSE recommended intervenor services for the student for the 2020/21 school year (Ex. SD-5 at 14). Additionally, the School District was obligated to ensure the student’s receipt of intervenor services pursuant to the July 14, 2020 Interim Order on Pendency (Ex. P-C at 8).

The student’s parent credibly testified that the role of an intervener is unique from that of a sign language interpreter or a school aide. Prior to receiving intervener services, the student made minimal progress. The student’s awareness of the visual environment and of the other individuals around him has significantly increased since he began receiving intervener services. He began to make significant and meaningful progress over a variety of domains, and by all accounts he continues to require intervener services in order to make meaningful educational progress. Without intervenor services, the student does not respond or participate in class (Ex. P-O at ¶¶ 24-26, 30, 41-43).

The student’s intervenor during the 2020/21 school year, explained that her function was to facilitate the student’s access to environmental information usually gained through vision and hearing, through ASL, tactile sign language, repetition, modeling, or visual cues, facilitation the develop and use of receptive and expressive communication skills, and developing and maintain a trusting, interactive relationship that promotes social and emotional well-being (Ex. P-I at ¶ 24). The intervenor’s approaches and strategies involved modification of class materials in a variety of ways: enlargement, reorganization to minimize visual static and eye strain, directing visual focus to important information, strategic use of color, high contrast, reinforcing concepts with visual references, further breakdown of content, and filling in his “foundational context” due to lack of access to incidental learning (Ex. P-I at ¶ 29). The intervenor had regular one-to-one sessions with the student after-school to review material, catch-up on elements of class content that were not accessible to him in the moment, and to provide the repeated exposure to curriculum content that was necessary for his learning (Ex. P-I at ¶ 34). With the necessary interventions and services of an intervenor, the student became more independent and learned various inclusion strategies in the classroom. The student began to advocate for himself, ask for what he needed and indicate when he needed it (Ex. P-I at ¶ 35).

The intervenor stated that the student’s learning and performance can continue to increase across domains with the accommodation of intervenor services (Ex. P-I at ¶ 38). The intervenor recommended that the student continue to receive thirty-five (35) hours per week of one-to-one intervenor services, as well as after-school intervenor services of at least five (5) hours per week (Ex. P-I at ¶ 39). The intervenor also recommended that the student receive intervenor services on a fifty-two (52) week basis to avoid substantial regression during the summer months (Ex. P-I at ¶ 40).

Based on the intervenor and the parent’s credible testimony, I find that the student was entitled to receive the services of a full-time (35 hours per week) one-to-one intervener, certified and/or proficient in ASL, and five (5) hours per week of after-school assistance from the intervener, during the 2020/21 school year. The School District will be directed to authorize the student’s receipt of any missed hours of intervenor services incurred during the 2020/21 school year.

  • • In-School Vision Education Services In May 2018, the CSE terminated the student’s in-school vision education services for the 2018/19 school year without evaluation or explanation (Ex. P-B at 8-9, P-Q at 10). A May 2020 CSE likewise denied the student vision education services despite the student’s demonstrated need for such services (Ex. SD-5 at 13-14). The School District was obligated, however, to ensure the student’s receipt of individual vision education services at school, five (5) times per week for thirty (30) minutes per session, pursuant to the July 14, 2020 Interim Order on Pendency (Ex. P-C at 8). As the State-approved nonpublic school was unable to provide the student with vision education services, the School District issued the parent a related service authorization (“RSA”) (Ex. P-L at ¶¶ 17-18).

The student’s vision therapist credibly testified that, based on her familiarity with the student’s vision needs, he requires vision education services in-school in order to receive an appropriate education (Ex. P-L at ¶¶ 19-20). I therefore find that the student was entitled to receive individual vision education services in school, five (5) times per week for thirty (30) minutes per session, during the 2020/21 school year. The School District will be directed to authorize the student’s receipt of any missed hours of in-school vision education services incurred during the 2020/21 school year.

  • • After-School Related Services Based on the information available to the CSE at the time of the May 2020 meeting, the student continued to benefit from, and required, after-school related services. There were no progress reports, evaluations, or recommendations from any service providers that would have warranted the termination of after-school related services. Moreover, the credible testimony of the student’s physical therapist, occupational therapist, vision therapist and speech therapist supports the parents’ contention that the student required after-school related services during the 2020/21 school year in order to learn (Exs. P-I, P-J, P-K, P-L, P-O, P-P).

Unless otherwise paid via pendency, the School District will be directed to reimburse the parents and/or directly fund the following after-school related services, delivered to the student during the 2020/21 school year: (a) individual speech/language therapy, two (2) times per week for forty-five (45) minutes per session; (b) individual vision therapy, two (2) times per week for forty-five (45) minutes per session; (c) individual physical therapy, three (3) times per week for thirty (30) minutes per session; and (d) individual occupational therapy, two (2) times per week for thirty (30) minutes per session.

The student’s occupational therapist testified that the student requires fifty-two (52) hours of compensatory occupational therapy to make up for the fact that he was precluded from utilizing his pendency mandated occupational therapy sessions during the 2020/21 school year at a sensory gym due to the Covid-19 pandemic (Ex. P-P at ¶ 35). The student will therefore be awarded fifty-two (52) hours of compensatory occupational therapy (calculated by multiplying one hour of therapy per week by fifty-two (52) weeks).

Although the student was entitled to receive individual speech/language therapy (two times per week for forty-five (45) minutes per session) pursuant to the July 14, 2020 Interim Order on Pendency (Ex. P-C at 8), the parent testified that the student was without an after-school speech and language therapist until January 2021 (Ex. P-O at ¶¶ 79-80). The student will therefore be awarded thirty-four and a half (34.5) hours of individual speech/language therapy to make up for the fact that he was without any of his pendency-mandated speech/language therapy from July 2020 through December 2020 (calculated by multiplying 1.5 hours of therapy by twenty-eight (28) weeks).

VI. ORDER

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

HEREBY ORDERED THAT:

  • • The parents’ claim that the student was denied a free appropriate public education for the 2020/21 school year is SUSTAINED;
  • • For the 2020/21 school year, the student was entitled to the following special education and related services at school:
  • • placement at, and tuition for, a State-approved private school in an 8:1+1 special class program with the following related services in-school:
  • • individual speech/language therapy, four (4) times per week for thirty (30) minutes per session;
  • • group (3:1) speech/language therapy, one (1) time per week for thirty (30) minutes per session;
  • • individual occupational therapy, three (3) times per week for thirty (30) minutes per session;
  • • individual vision education services, five (5) times per week for thirty (30) minutes per session; and
  • • individual physical therapy, two (2) times per week for thirty (30) minutes per session;
  • • a full-time (35 hours per week), 1:1 intervener who is properly trained and is certified and/or proficient in ASL;
  • • five (5) hours per week of after-school assistance from the intervener to help with homework;
  • • a full-time nurse;
  • • assistive technology (portable reading device); and
  • • special transportation consisting of limited time travel.
  • • In addition, during the 2020/21 school year, the student was entitled to receive the following after-school related services:

a) individual speech/language therapy, two (2) times per week for forty-five (45) minutes per session; b) individual vision therapy, two (2) times per week for forty-five (45) minutes per session; c) individual physical therapy, three (3) times per week for thirty (30) minutes per session; d) individual occupational therapy, two (2) times per week for thirty (30) minutes per session; and e) five (5) hours per week of intervenor services at home for help with homework.

  • • During the 2020/21 school year, the student was entitled to receive a twelve (12) month extended school year program, including fifty-two (52) week school year program for all of the after-school related services (SLT, OT, PT and VT) and thirty-five (35) hours per week of intervenor services and five (5) hours per week of after-school assistance from the intervenor to help with homework.
  • • The School District shall fund a bank of compensatory educational services as follows:
  • • Fifty-two (52) hours of occupational therapy; and
  • • Forty-two (42) hours of speech/language therapy.
  • • The parents may utilize providers of their choosing for all after-school related services, intervenor services and compensatory educational services, so long as the providers are qualified and charge reasonable market rates.

Dated: July 17, 2022

/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 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 plan 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 RECORD

PARENT

  • • Due Process Complaint/Impartial Hearing Request, 6/30/20, 22 pgs.
  • • Findings of Fact & Decision (Case No. 166747), 3/5/20, 23 pgs.
  • • Interim Order on Pendency (Case No. 194924), 7/14/20, 10 pgs.
  • • Physical Therapy Summary of Progress, 4/30/21, 5 pgs.
  • • Student Progress Report (SLT), 5/4/21, 2 pgs.
  • • Intervener Progress Report, 5/10/21, 4 pgs.
  • • Occupational Therapy Progress Report, 5/5/21, 3 pgs.
  • • Education Vision Services Progress Report & Proposed Annual Goals, undated, 2 pgs.
  • • Affidavit of Intervenor, 5/11/21, 8 pgs.
  • • Affidavit of PT, 5/13/21, 10 pgs.
  • • Affidavit of SLT, 5/13/21, 5 pgs.
  • • Affidavit of TVI, 5/14/21, 5 pgs.
  • • Findings of Fact & Decision (Case No. 183808), 2/7/21, 19 pgs.
  • • Findings of Fact & Decision (Case No. 161388), 11/9/17, 20 pgs.
  • • Affidavit of Parent, 6/8/21, 8 pgs.
  • • Affidavit of OT, 6/4/21, 8 pgs.
  • • Amended Due Process Complaint/Impartial Hearing Request, 10/21/20, 17 pgs.

SCHOOL DISTRICT

  • • IEP Goals Progress Report, 2019/20, 5 pgs.
  • • Consent for Tele-Therapy, 4/7/21, 1 pg.
  • • CSE Meeting Notice, 4/21/20, 4 pgs.
  • • Consent for Tele-Therapy, 4/22/20, 1 pg.
  • • Individualized Education Program (IEP), 5/26/20, 21 pgs.

IMPARTIAL HEARING OFFICER

  • • Order on Consolidation (Case Nos. 194924 & 183808), 7/15/20, 5 pgs.
  • • Extension Order, 1/26/21, 1 pg.
  • • Extension Order, 2/25/21, 1 pg.
  • • Extension Order, 3/27/21, 1 pg.
  • • Extension Order, 4/26/21, 1 pg.
  • • Extension Order, 5/26/21, 1 pg.
  • • Extension Order, 6/25/21, 1 pg.
  • • Extension Order, 7/25/21, 1 pg.
  • • Extension Order, 9/23/21, 1 pg.
  • • Extension Order, 10/23/21, 1 pg.
  • • Extension Order, 11/22/21, 1 pg.
  • • Extension Order, 12/22/21, 1 pg.
  • • Extension Order, 1/21/22, 1 pg.
  • • Extension Order, 2/20/22, 1 pg.
  • • Extension Order, 3/22/22, 1 pg.
  • • Extension Order, 4/21/22, 1 pg.
  • • Extension Order, 5/21/22, 1 pg.
  • • Extension Order, 6/20/22, 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 considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons 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. 54-55, 66-67; Exs. IHO-II – IHO-XVIII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Deaf blindness means concomitant hearing and visual impairments, the combination of which causes such severe communication and other developmental and educational needs that they cannot be accommodated in special education programs solely for students with deafness or students with blindness. 8 NYCRR § 200.1(zz)(3).

[4] On November 9, 2017, the undersigned rendered a Findings of Fact and Decision (“FOFD”) in Case No. 161388 concerning the 2016/17 school year (Ex. P-N). On March 5, 2020, the undersigned rendered a FOFD in Case No. 166747 concerning the 2017/18 and 2018/19 school years (Ex. P-B). On February 7, 2021, the undersigned rendered a FOFD in Case No. 183808 concerning the 2019/20 school year (Ex. P-M).

[5] In 1947, the New York Legislature designated certain schools to serve the special education needs of children who are deaf, blind and/or severely physically disabled. The 4201 schools – so known because of the specific provision of the Education Law (§4201) where the schools are listed – provide unique and appropriate educational and related services to students with low-incidence disabilities in New York State. There are currently ten (10) private, state-supported 4201 schools across New York State, including Lexington.

[6] 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.

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

[8] In New York State, the school year is defined as the "period commencing on the first day of July in each year and ending on the thirtieth day of June next following." See N.Y. Educ. Law § 2(15).