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Special Education Law
DECISIONParent PrevailedIHO Case No. 195633

New York City Department of Education, Impartial Hearing Decision

January 25, 2023·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.

CASE NUMBER: 538908 - NYC: 195633

FINDINGS OF FACT & DECISION

Case Number: 195633

Student Name: [REDACTED]

(hereinafter referred as the Student)

Date of Birth: [REDACTED]

District: REDACTED

Hearing Requested By: Parent

Dates of Hearings: December 7, 2021

May 26, 2022

Actual Record Close Date: January 11, 2023

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 7, 2021

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Special Education Teacher

[REDACTED], Director of Upper School

For the District:

[REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 26, 2022

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Special Education Teacher

For the District:

[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 student and the parent in a due process complaint dated July 2, 2020. The primary issue to be determined at this hearing is whether the New York City Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) for the 2020/21 school year (Exs. P-A, P-B).[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 16, 2020, the DOE appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). On May 27, 2021, the parent filed an amended due process complaint (Ex. P-B). See 8 NYCRR § 200.5(i)(7)(i)(b). Hearings on the merits of the matter were thereafter held on December 7, 2021 and May 26, 2022 (R. 1, 114).[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 May 27, 2021 amended due process complaint, the student was [REDACTED] years old and has been diagnosed with cerebral palsy and cortical visual impairment (Ex. P-B at 4). For the 2020/21 school year, the student received specialized instruction and related services at [REDATED] (hereinafter referred to as the Private School), which has not been approved by the Commissioner of Education as an independent school with which public school districts may contract to provide special education and related services to student with disabilities. See 8 NYCRR §§ 200.1(d), 200.7. The student's eligibility for special education and related services as a student with multiple disabilities is not in dispute in this hearing (Exs. P-A, P-B, P-H at 1, P-I at 1). See 8 NYCRR § 200.1(zz)(8).[3]

The parties’ familiarity with the student’s educational history prior to the 2020/21 school year, as detailed in the due process complaints and the undersigned’s Findings of Fact and Decision in Case No. 179041, is assumed and will not be restated here (Exs. P-A, P-B, P-D).

The CSE convened on August 15, 2019 to develop an IEP for the student through August 15, 2020. The CSE recommended that the student receive the majority of his instruction in a 12:1

+ (3:1) special class in a specialized (District 75) school on a twelve (12) month basis. The CSE also recommended that the student receive a full-time 1:1 health paraprofessional for toileting and ambulation. The CSE recommended related services of: specialized transportation; individual (1:1) speech and language therapy, three (3) times per week for thirty (30) minutes per session; and individual (1:1) occupational therapy, three (3) times per week for thirty (30) minutes per session; but failed to recommend any vision services for this visually impaired student (Ex. P-H at 19-21, 23-24). In a letter dated May 26, 2020, the DOE advised the parent that the student’s recommended program would be provided at [REDACTED] (Ex. P-E at 8).

In a letter dated June 17, 2020, counsel for the student and the parent advised the CSE that the parent was rejected it proposed program for the student on a number of procedural and substantive grounds. Counsel also advised the CSE that the parent intended to unilaterally placed the student, at public expense, at the Private School for the 2020/21 school year (Ex. P-C).

The CSE reconvened on December 3, 2020 to develop an IEP for the student through December 3, 2021. For the period December 16, 2020 through March 16, 2021, the CSE recommended that the student receive the majority of his instruction in a 12:1

+ (3:1) special class. For the period March 16, 2021 through December 3, 2021, the CSE recommended that the student receive the majority of his instruction in an 8:1+1 special class in a State-approved nonpublic day school. For both programs, the CSE recommended that the student received a full-time group health paraprofessional for toileting and ambulation. The CSE also recommended that the student receive related services of: specialized transportation; individual (1:1) occupational therapy, three (3) times per week for thirty (30) minutes per session; individual (1:1) orientation and mobility services, one time per week for thirty (30) minutes per session; individual (1:1) physical therapy, two (2) times per week for thirty (30) minutes per session; and individual speech and language therapy, three (3) times per week for thirty (30) minutes per session. The CSE again failed to recommend any vision services for this visually impaired student (Ex. P-I at 24-26, 28-30).

The student attended the Private School for the duration of the 2020/21 school year.

IV. POSITIONS OF THE PARTIES

A. The DOE The DOE declined to make an opening statement, offer testimony of any witnesses, or offer any exhibits for entry into the hearing record in support of its recommended programs for the student for the 2020/21 school year (R. 7-15).

B. The Parent The DOE denied the student a FAPE during the 2020/21 school year. 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 years on a twelve (12) month basis. The Private School was an appropriate placement for the student, and there are no equitable reasons to withhold or reduce reimbursement and/or direct payment for private educational instruction and services. The parent also seeks compensatory educational services to remedy the insufficient amount of related services recommended on the student’s IEPs (R. 41-45).

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).[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; 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).[5]

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. See Mr. A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 427-28 (S.D.N.Y. 2011); S.W. v. New York City Dep’t of Educ., 646 F. Supp. 2d 346, 358-60 (S.D.N.Y. 2009); Connors v. Mills, 34 F. Supp. 2d 795, 805-06 (N.D.N.Y. 1998).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Recommended Public Programs The DOE declined to make an opening statement, offer testimony of any witnesses, or offer any exhibits for entry into the hearing record in support of its recommended programs for the student for the 2020/21 school year. The hearing record reflects that there was no IEP in effect for the student between August 15, 2020 and December 16, 2020 (Exs. P-H at 1, P-I at 1). In addition, there is no evidence contained in the hearing record that the DOE secured a State-approved nonpublic day school placement for the student effective March 16, 2021 (Exs. P-I at 24, P-M). Cf. Application of the New York City Dep’t of Educ., Appeal No. 14-079 at 12 (SRO Sept. 9, 2014) (“although not explicitly stated in federal or state regulation, implicit in a 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 the IEP, a district must notify parents in a reasonable fashion of the bricks and mortar location of the special education program and related services in a student's IEP”). Accordingly, I find that the DOE denied the student a FAPE for the 2020/21 school year.

C. Appropriateness of the Private School

Given my finding that the DOE failed to offer the student a FAPE for the 2020/21 school year, I turn to the appropriateness of the private program and services secured by the parent for the student during those school years. With respect to the second criterion for an award of reimbursement, parents must show that the private services obtained for the student were appropriate to meet his or her special education needs. See Frank G. v. Board of Educ., 459 F.3d 356, 363 (2d Cir. 2006), cert. denied, 552 U.S. 985 (2007). Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.” See Gagliardo, 489 F.3d at 112.

In order to meet that burden, a private placement must be “proper under the Act,” see Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370, i.e., the private school offered an educational program which met the student’s special education needs, see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129. “Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” Gagliardo, 489 F. 3d at 112, quoting Frank G., 459 F.3d at 364. Parents need not show that the placement provides every special service necessary to maximize a 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 student’s vision therapist, the Director of the REDACTED, and the student’s special education teacher, I find that the Private School provided the student with specifically designed, individualized instruction to meet his unique educational needs during the 2020/21 school year (R. 48-66, 69-108, 119-154; Exs. P-G, P-U, P-W, P-X, P-Y, P-Z).

D. 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 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 IDEA also provides that reimbursement and/or direct payment may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten (10) business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.” See 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools."

Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. See

Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 (1st Cir. 2004); Berger, 348 F.3d at 523-24; Rafferty, 315 F.3d at 27; see also Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68.

The relevant equities support an award of tuition reimbursement and/or direct payment for the student’s unilateral placement at the Private School during the 2020/21 school year. In a letter dated June 17, 2020, the parent provided the DOE with adequate prior written notice of her intent to make a unilateral placement of the student at public expense during the disputed school year (Ex. P-E). There is also no evidence indicating that the parent was uncooperative with the CSE (Exs. P-H, P-I), see 20 U.S.C. § 1412(a)(10)(C)(iii), nor was the tuition and related services costs for the Private School unreasonable given the severity of the student’s educational needs (Exs. P-P, P-AA), see Carter, 510 U.S. at 16.

E. Compensatory Educational Services

As relief, the parent also seeks compensatory educational services of: occupational therapy, speech/language therapy, and physical therapy, to compensate the student for an insufficient frequency of related services (Exs. P-B, P-BB at 9).

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").

Compensatory education awards can be crafted pursuant to two distinct theories: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Reg’l Sch. Dist., 81 F.3d 389, 297 (3d Cir. 1996) (holding that a “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Id. at 526.

At the hearing, the DOE failed to offer any evidence in support of its recommended programs for the student for the 2020/21 school year. The DOE also failed to develop the hearing record to establish the appropriate amount of relief needed to remediate its failure to provide the student with FAPE for the 2020/21 school year. Cf. Application of the New York City Dep’t of Educ., Appeal No. 14-014 at 9 (SRO March 31, 2014).

Through a series of prior impartial hearings, the student was awarded independent educational evaluations (“IEEs”) in the areas of speech/language therapy, physical therapy, occupational therapy, and assistive technology (Exs. P-Q, P-R, P-S, P-T). Here, I will apply a quantitative approach and award the student compensatory relief in the form of a bank of hours for additional occupational therapy, speech/language therapy and physical therapy to compensate for an insufficient frequency of recommended related services for both school years, as highlighted by the completed IEEs.

  • • Occupational Therapy An independent occupational therapy evaluation of the student from September 2018 found that the student exhibited severe delays in the areas of fine and gross motor strength and coordination, cognitive, physical, social and adaptive skills. The independent evaluator recommended that the student receive occupational therapy services five (5) times per week for sixty (60) minutes per session (or 230 hours per school year), to address delays in visual motor, fine motor, and overall developmental delays (Exs. P-B at 9, P-Q at 7). During the 2020/21 school year, the student received 1.5 hours per week (or 69 hours per school year) of occupational therapy, per the mandate in his IEP (3x30) (Ex. P-H at 20). The DOE will be directed to authorize the student’s receipt of 161 hours of compensatory occupational therapy, which represents the difference between the 230 hours of occupational therapy recommended by the independent evaluator and the 69 hours of occupational therapy the student actually received during the 2020/21 school year.
  • • Speech/Language Therapy An independent bilingual speech/language therapy evaluation of the student from October 2018 found that the student presents with profound expressive, receive, and pragmatic language delays and a severe articulation disorder. The independent evaluator recommended that the student receive intensive individual bilingual speech/language therapy, five (5) times per week for sixty (60) minutes per session (or 230 hours per school year), to treat his speech, motor-planning, receptive, expressive, and pragmatic language deficits (Exs. P-B at 8-9, P-R at 11). During the 2020/21 school year, the student received 1.5 hours per week (or 69 hours per school year) of speech/language therapy, per the mandate in his IEP (3x30) (Ex. P-H at 20). The DOE will be directed to authorize the student’s receipt of 161 hours of compensatory speech/language therapy, which represents the difference between the 230 hours of speech/language therapy recommended by the independent evaluator and the 69 hours of speech/language therapy the student actually received during the 2020/21 school year.
  • • Physical Therapy An independent physical therapy evaluation of the student from February 2019 recommended that the student receive physical therapy at home (in addition to his in-school services), to further address his delays in overall age-appropriate gross motor skills and functional activities of daily living. The independent evaluator recommended that the student receive physical therapy at home, at a frequency of either two (2) times per week for thirty (30) minutes per session (or once weekly for sixty (60) minutes per session), in addition to physical therapy at school, at a frequency of two (2) times per week for thirty (30) minutes per session (Ex. P-B at 10, P-S at 6). During the 2020/21 school year, the student received 1 hour per week (or 46 hours per school year) of physical therapy at school per the mandate in his IEP (2x30), but no physical therapy at home (Ex. P-H at 20). The DOE will be directed to authorize the student receipt of 46 hours of physical therapy, which represents the difference between the 92 hours of physical therapy recommended by the independent evaluator and the 46 hours of physical therapy the student actually received during the 2020/21 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. Effective October 27, 2020, the student was entitled to receive the following under pendency:

(a) placement at the Private School or in a nonpublic school, in a classroom of not more than eight (8) students and a minimum of one special education teacher and one teaching assistant;

(b) appropriate vision services delivered by a teacher for the visually impaired (TVI), 12 months;

(c) 1:1 occupational therapy, 5x60, 12 months;

(d) 1:1 physical therapy at school, 2x30, 12 months;

(e) 1:1 physical therapy at home, 2x30, 12 months;

(f) 1:1 speech/language therapy, 5x60, 12 months;

(g) 1:1 orientation & mobility services, 1x60, 12 months;

(h) assistive technology per the recommendation in the January 2019 independent assistive technology evaluation, at school and at home for 12 months; and

(i) specialized transportation (including round-trip, air-conditioned lift bus), 12 months;

3. Within thirty (30) days of the date of this Order, the DOE shall directly pay $125,143.00 to the Private School for tuition owed for the 2020/21 school year;

4. Within thirty (30) days of the date of this Order, the DOE shall authorize the student’s receipt of the following compensatory educational services:

(a) 161 hours of occupational therapy from an occupational therapist of the parent’s choice at an enhanced market rate;

(b) 161 hours of speech/language therapy from a speech/language therapist of the parent’s choice at an enhanced market rate;

(c) 46 hours of physical therapy from a physical therapist of the parent’s choice at an enhanced market rate; and

(d) all compensatory educational services hours shall by used at the convenience of the parent, including after school, on weekends, and/or during school vacations, until all of the hours are used for the benefit of the student;

5. Within thirty (30) days of the date of this Order the DOE shall authorize the student’s receipt of assistive technology and assistive technology training in accordance with the recommendations in the January 9, 2019 independent assistive technology evaluation by [REDACTED], including the hardware, software and programs recommended in the evaluation, along with 85 hours of training on the device(s), to be divided as needed between the student, the parent, the student’s teacher and speech therapist; and

6. Within thirty (30) days of this Order, the DOE shall create a procedurally and substantively valid IEP which includes the following program and services:

(a) placement in a small, non-public school in a classroom with no more than eight (8) students and a minimum of one special education teacher and one teaching assistant;

(b) individual (1:1) speech/language therapy, five (5) times per week for sixty

(60) minutes per session;

(c) individual (1:1) occupational therapy, five (5) times per week for sixty (60) minutes per session,

(d) individual (1:1) physical therapy, two (2) times per week for thirty (30) minutes per session at school and an additional two (2) times per week for thirty (30) minutes per session at home;

(e) twelve (12) month extended school year services;

(f) individual (1:1) orientation and mobility services, one time per week for sixty

(60) minutes per session;

(g) special transportation including round-trip, air-conditioned lift bus;

(h) appropriate vision services delivered by a TVI; and

(i) assistive technology as recommended in the January 9, 2019 independent assistive technology evaluation.

All other requests for relief are denied.

Dated: January 25, 2023

/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 HEARING RECORD

REDACTED

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’ respective witnesses and 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 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. 109-110, 155-156; Exs. IHO-I – IHO-II, IHO-IV – IHO-XXV). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf-blindness. 8 NYCRR § 200.1(zz)(8).

[4] 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.

[5] 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.