NY IHO #208029: New York City... | Special Education Law

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CASE NUMBER: 551815 - NYC: 208029

FINDINGS OF FACT AND DECISION

Case Number: 208029

Student’s Name: REDACTED (hereinafter “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: REDACTED (“Mother”)

(hereinafter “Parents”)

Date of Hearing: December 13, 2021 and January 07, 2022

Record Close Date: January 18, 2022

Hearing Officer: Harry Aristargos Christodoulou

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________________

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2021

For the Student:

REDACTED (“PR1”) & REDACTED (“PR2”) of REDACTED (hereinafter referred to as “Parents’ representatives”)

Mother

REDACTED (“Cousin”)

REDACTED (Interpreter)

REDACTED (“Parents’ Expert Witness 4”)

REDACTED (“Parents’ Expert Witness 5”)

REDACTED (“Parents’ Expert Witness 6”)

REDACTED (“Parents’ Witness 1”)

For the Department of Education (“DOE”):

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON JANUARY 07, 2022

For the Student:

Parents’ representative 2

Mother

Cousin

REDACTED (“Parents’ Expert Witness 8”)

For the DOE:

District’s representative

Hearing Officer’s Fact of Finding and Decision

_________________________________________________________________________________________________________

This matter comes before me at the request of the Parents. A due process complaint (“DPC”) was filed by the Parent on April 23rd, 2021 (Exhibit P-A). Parents’ representative filed an amended due process complaint (“ADPC”), which essentially added the 2021-2022 school year and a claim for tuition funding (Exhibit P-WW).

I was appointed to preside over this case on April 28th, 2021, to conduct an impartial hearing(s) pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1) to determine the claims in the DPC, concerning the special education program of the Student.

PROCEDURAL HISTORY

At a prehearing conference (“PHC”) held on June 3rd, 2021, the Parents’ representative informed me that the Parents were seeking the Independent Educational Evaluations (“IEEs”) sought in the DPC (Exhibits P-A-9; P-WW-10).

The District’s representative confirmed that it was not opposing the Parents’ request for the IEEs. A limited hearing was therefore unnecessary given that there was no dispute.

At my request, the Parents’ representatives presented the evidence of three expert witnesses, Parents’ Expert Witness 1, Parents’ Expert Witness 2 and Parents’ Expert Witness 3, in support of the Parents’ request for the Interim Order for IEEs (Exhibits IHO-I, IHO-II and IHO-III) by way of affidavit.

The District’s representative confirmed by email, after receiving the three affidavits, that the District did not have any objections to the request for IEEs (Exhibit IHO-IV). An Order for IEEs was issued on June 09, 2011 (Exhibit IHO-V).

At the SC held on October 27, 2021 the burden of proof and production was addressed and the parties’ representatives confirmed their understanding and agreement thereon (T. P26, L7-25; P27, L1-19).

JURISDICTION

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

PARTIES’ POSITIONS AND CASES PRESENTED

DOE:

At the impartial hearing (“IH”) held on December 13, 2021, the District’s representative confirmed that (T. P43, L24-5; P44, L1-5; P48, L12-25; P49, L1-9, P105-6, L1-17):

• The District was not putting on a case to defend its IEPs.
• The District would not be calling any witnesses or submitting any documentation for admission.
• He would be making an opening statement, which he did, asserting that the District holds position that the requested relief is excessive and significantly out of proportion for the alleged denial of a FAPE.
• The District rested its case.
• He would be making a closing statement, which he did, asserting that the District holds position that the requested relief is arbitrary, excessive, and that an expiration date should be set for awarded services.

Parents:

Parents, through the Parents’ representatives, submitted documents in support of the Parents’ case, which were admitted into evidence after confirming with the District’s representative that there were no objections from the District to any of the documents being admitted into evidence (T. P4, L6-16; P63, L16-23; P70, L8-14; P71, L10-15; P81, L8-11; P82, L1-5; P93. L2-6). A list of the documents admitted into evidence is contained in appendix B.

The Parents’ representatives presented the testimony of witnesses by way of affidavit (Exhibits P-OO through P-SS, and P-XX). Only some of the deponents to the affidavits were required for cross-examination and/or clarifying questions in accordance with the instructions provided at the SC held on October 27, 2021 (T. P28, L19-23).

The Parents’ representatives made an opening and a closing statement at the IH (T. P49, L21-25; P50-62; P63, L1-13; P101-4):

• Summarizing the Student’s difficulties and needs, as well as a factual history.
• Asserting the DOE’s failures to provide a FAPE, and the 10-day notice provided.
• Addressing the Student’s enrollment at the Attending School and the progress the Student is asserted to have made.
• Summarizing the findings and recommendations of the Parents’ witnesses.
• Summarizing the relief sought.

FINDINGS OF FACT AND DECISION

After considering the evidence, as well as the parties representatives’ opening and closing statements, I find as follows:

Denial of FAPE:

• A FAPE is offered to a student when (a) the DOE 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^[5].
• If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the 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^[6].
• The IDEA directs that, in general, an impartial hearing officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE^[7]. A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[8].
• School districts are not required to "maximize" the potential of students with disabilities^[9], but must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'"^[10]. The IEP must be "reasonably calculated to provide some 'meaningful' benefit"^[11].
• School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement^[12]. This case does involve a unilateral placement and tuition funding/reimbursement claim. There was no dispute regarding the burden in this matter (T. P26, L12-25; P27, L1-17).
• My findings regarding a denial of a FAPE for the 2018-2-019, 2019-2020, 2020-2021 and 2021-2022 school years are as follows:
• The Parents set out in detail eleven basis, both procedurally and/or substantively, in the DPC (Exhibit P-WW-5 through P-WW-8) for asserting that the DOE has denied the Student a FAPE.
• The DOE chose not to put on a case to prove that the Student was provided with a FAPE (although it has challenged the reasonableness of the solutions proposed by the Parents).
• Although not the Parents’ obligation in the first place, the Parents have made out a sufficient case that the DOE has denied the Student a FAPE, causing a deprivation of educational benefits and the DOE has not met its burden in this regard.
• Parents’ Expert Witness 1 testified, inter alia, that:
• She conducted various methods and testing procedures, detailed her observations, assessments, findings and recommendations (Exhibit P-CC; P-OO-2 & -3; pars. 8-18).
• Since the Student “has not made any progress and seemed to regress during the past year (and in fact the goals of her IEP appear to be the same from year to year), she requires a different type of placement than her public-school placement from the 2020- 2021 school year” (Exhibit P-OO-4; par. 20).
• Given the Student's significant developmental delays, she needs a highly structured school setting in a small class in a special education school where the instructors and staff have extensive experience in working with children who are multiply handicapped, with developmental delays, social skills deficits, and extreme speech language delays (Exhibit P-OO-4; par. 20).
• In her experience the DOE does not have a program or placement to meet the Student's needs and she therefore requires a private placement (Exhibit P-OO-4; par. 20).
• Parents’ Expert Witness 8 testified (Exhibit P-KK-4, par. 16), inter alia, that:
• Despite not observing the Student in her previous school setting, upon reviewing documentation, conducting observations of the Student and conducting interviews with the Parent(s), it is clear that there were issues with the Student's previous educational program.
• For instance, the format of the Student’s IEP goals were inadequate since the goals lacked objectivity, completeness, and clearness, and the recommended related services were not the best fit for the Student given her level of functioning and prerequisite skills and her IEP goals did not include goals that addressed pivotal skills necessary for basic communication, social participation, etc.
• Instruction was tailored towards academic content (e.g., reading, writing, math) which created a huge gap in the Student’s skill repertoire.
• Teaching methodology was ineffective for the Student considering that her instructional levels remained at "Pre-Kindergarten" for reading and math.
• The District has an affirmative obligation to offer the student a FAPE^[13]. With certain exceptions, a student’s IEP must be reviewed periodically, but not less frequently than annually, and revised as appropriate^[14] (my emphasis).
• It is clear from the evidence submitted by the Parents and highlighted by the most recent evaluations (Exhibits P-RR and P-SS), inter alia, that:
• The DOE failed to mandate therapy services sufficient enough for the Student to make meaningful progress, and her current and past mandate and program did not appropriately meet her need (Exhibit P-RR-3, par. 16; P-SS-4, par. 16).
• The DOE failed to provide an appropriate placement where the Student could receive appropriate supports and services to address her individual needs.
• The DOE failed to recommend a non-public school (“NPS”) placement option, keeping the Student in the same setting despite all the documented maladaptive behaviors that were impeding the Student’s ability to receive academic instruction, and in circumstances where the DOE had failed to adequately recommend sufficient, support services for the Student and where the Student had failed to progress academically as a result, even regressing during the 202-2021 school year.
• In the circumstances, I find these shortcomings caused a deprivation of educational benefits and constituted a denial of a FAPE during the school years in question, and the District did not discharge its burden in this regard.

PROPOSED SOLUTION(S):

Appropriateness of the Parents’ Placement:

The DOE may be required to pay for educational services obtained for a student by the student’s parent(s), if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent(s) were appropriate, and equitable considerations support the parent’s claim^[15].

The DOE did not present any testimony or other evidence to substantiate a case that it offered the Student a FAPE for the school years at issue, although the past IEPs and DOE evaluations and assessments were disclosed by the Parents. The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”^[16]

There was no explanation, let alone a cogent and responsive explanation, for the District’s program and placement recommendation. The DOE has not, therefore, met its burden of proof in this proceeding. Parents have therefore met the first criterion of the three Burlington/Carter criteria for tuition reimbursement/direct tuition funding.

Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, Parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student”^[17]. The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements”^[18].

The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement.

The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child”^[19].

Furthermore, “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.”^[20] The DOE did not successfully raise any specific challenges to the Parents’ contention that would disturb my finding (below) that the Attending School is an appropriate program and placement for the Student.

As indicated, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. I nevertheless find that the teachers and providers are sufficiently qualified, certified and trained (Exhibit P-PP-3, par. 12; P-PP-5, par. 25; P-PP-6, par. 29; P-PP-7, par. 32).

The Parents’ representative submitted documentary evidence in support of the Parents’ position that the Attending School placement was appropriate (Exhibits P-LL, P-PP, P-TT, P-UU, P-VV, P-WW, P-XX, P-YY, P-ZZ, and P-AAA). Additionally, the Parents’ representative led, in support of the Parents’ position that the Attending School placement was appropriate, the testimony of:

• Parent’s Witness 1 (Exhibit P-PP; T. P68, L7-25; P69; P70, L1-2), who testified, inter alia, as to: the school’s mission, the different programs offered, which are tailored to the characteristics and needs of each student, that adapts to the constantly evolving needs of the student; the classroom ratios and size; the certification of their teachers; the clinical supports offered; the transdisciplinary approach and REDACTED customized to each student’s specific needs; the strength based model employed; the school’s own curriculum developed to meet the needs of their students, modified by each teacher based on the individual needs of the students in his/her classroom; the Student’s school schedule; the Student’s attendance; the support services the Student receives (and parent training offered); her progress made (“thriving academically and therapeutically” and “making steady progress”); and her opinion as to whether the program is an appropriate program for the Student.
• Mother who testified as to the progress the Student has been making since starting at the Attending School (Exhibit P-LL-3, par. 16).

The testimony of the Parents’ witness (which was uncontroverted), and the Parents’ documentary evidence establishes that the Attending School is appropriate and has been providing the Student with educational instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction, for the 2021-2022 school year.

I find that, based on the Student’s attendance at the Attending School for the school year in question, as testified to by Mother, Parents’ Witness 1, the Student has made educational progress.

The Attending School has provided (and is providing) the Student with educational instruction specifically designed to meet her unique special education needs, supported by such services that are necessary to permit her to benefit from instruction.

The Parent has therefore met the second criterion of the three Burlington/Carter criteria for tuition reimbursement.

Equitable Factors (to be read in conjunction with the equitable factors section under compensatory services below):

Equitable considerations are relevant to fashioning relief under the IDEA^[21]. The IDEA also provides that reimbursement may be reduced or denied when parents fail to challenge 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^[22].

The IDEA allows that reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten 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”^[23].

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”^[24]. 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^[25].

Although it is apparent from the record that the Parents signed the contract enrolling the Student in the Attending School prior to the start of the 2021-2022 school year, namely on 08/03/2021 (Exhibits P-TT-5; P-UU-2), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school”^[26].

As noted above, the statutory requirement is that parents notify the district that they are rejecting the recommendation, state their concerns, and indicate their intent to enroll their child in private school at public expense^[27].

The hearing record reflects that the Parents notified the District, through the Parents’ representative by letter dated 08/23/2021 (Exhibit P-VV), of their intention to place the Student at the Attending School and seek public funding for the placement (and transportation) for the 2021-2022 school year. I note that the Student was signed up to attend from September 8, 2021 (Exhibit P-XX-1).

I find in this letter the Parents offered sufficient information to put the District on notice about the Parents’ concern regarding the lack of an appropriate school program and placement offer from the DOE and their intention to place the Student at the Attending School for the 2021-2022 school year, giving the District an opportunity to cure any deficiencies, which is the intent underlying the 10-day notice requirement^[28].

The Parents have therefore met the third criterion of the three Burlington/Carter criteria for tuition funding. Having met all three criteria of the Burlington/Carter test, the Parents are entitled to funding for the cost of the Student’s placement at the Attending School for the 2021-2022 school year.

Amount(s) Claimed The Parents submitted an enrolment contract and addendum (Exhibits P-TT and P-UU) plus a tuition affidavit regarding the tuition applicable at the Attending School by the Attending School’s Director of Operations, Parents’ Witness 2 (Exhibit P-XX-1, par. 3).

Parent Witness 2 confirmed under oath the amounts payable to the Attending School for the Student’s attendance thereat for the 2021-2022 school year at a cost of $163,875.00 (which is the total contracted tuition rate) per annum, with the Parents’ contribution being $3,500.00, of which $1,400.00 had been paid by the Parents as at the date of the affidavit, namely October 27, 2021 (Exhibit P-XX-1, par. 4 and 6).

Whilst the aforesaid cost (after deducting the Parents’ portion therefrom) is not insignificant, I do not find that the aforesaid tuition cost, given what is offered by the Attending School as part of the educational program, including the services provided, excessive or unreasonable^[29]. Parents portion of the tuition is however not included (i.e. is not being reimbursed) as part of the final award.

Whilst a basis of a financial hardship or the need for direct tuition funding is not asserted in the ADPC, the Parents represent to the Attending School that their financial status warrants direct prospective or retrospective payment of tuition directly to the school by the DOE or the Student's local Board of Education if different from the DOE (Exhibit P-UU-1, 2). This has not been placed in issue by the District.

Given my findings, the Student is entitled to an award for tuition funding (partial) for her attendance at the attending School for the 2021-2022 school, including transportation to and from the Attending School for the reminder of the current school year.

Compensatory Services:

• Parents are also seeking compensatory education or compensatory services for the District’s failure to provide the Student with a FAPE. The DPC originally only contained a claim for compensatory education or compensatory services, but was later amended to include the tuition reimbursement claim, which I have addressed above, when the 2021-2022 school year was added.
• A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE^[30].
• An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.
• A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach.
• Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation).
• Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
• Before addressing details of the Parents’ relief for compensatory education, it is necessary to address whether an appropriate remedy for a denial of FAPE should consist of both tuition reimbursement and compensatory education, which is being sought in ADPC.
• The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE^[31].
• Some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement for the costs of a unilateral placement is also at issue for the same time period^[32] (my emphasis).
• The Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit.
• Unlike the Third Circuit, the Second Circuit's approach to compensatory education may leave room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement is denied under a Burlington/Carter analysis^[33].
• Where “permitted, it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meet the student's unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement”^[34].
• Generally, an award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA^[35].
• The Parents’ claims for the denial of a FAPE cover several years, whereas the tuition reimbursement is sought for only one of those years, namely the current school year.
• The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE^[36]. Any awarded compensatory education would need to provide an appropriate remedy for a denial of a FAPE, factoring in the tuition funding claim being awarded.
• Additionally, the purpose of compensatory education is neither to punish the District^[37] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress”^[38].
• The Student experienced a FAPE deprivation and denial of appropriate services for the 2018-2019, 2019-2020, 2020-2021 school years, and would have experienced a FAPE deprivation and denial of appropriate services for the 2021-2022 school year but for the Parents intervention by enrolling the Student at the Attending School.
• Factoring in the tuition funding claim being awarded, I find as follows as regards the Parents’ claim for compensatory education and/or services:
• Given the duration of the deprivation and the testimony on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e., the quantitative approach).
• Each domain however has been assessed according to its own merits, given that Parents’ witnesses did not all (purportedly) use the same approach to determine recommended compensatory hours.
• Parents’ representative took a position and made clear the compensatory hours that the Parents assert the Student should be awarded with respect to the type and scope of compensatory education that would be appropriate, in the event that a FAPE deprivation being found.
• The District provided no evidence to substantiate what number of compensatory hours would be appropriate in the event that a FAPE deprivation being found but did challenge the veracity of the Parents’ position through cross-examination or challenges to the testimony of a number of the Parents’ witnesses.
• Assistive technology (“AT”):
• Parents’ Expert Witness 4 testified, inter alia, that the Student “is a good candidate for assistive technology” (Exhibit P-RR-3 & -4, par. 17).
• While Parents’ Expert Witness 4 makes an outright recommendation for AT, the rationale is to allow the Student to improve her ability to access and use language during communicative interactions (Exhibit P-DD-10).
• Parents’ Expert Witness 4 however affirms that the Student’s difficulty accessing the curriculum is likely caused by a lack of language skills, and that AT for access to curriculum is not recommended (Exhibit P-DD-11).
• This is also consistent with the District’s prior AT evaluation and follow up report that was performed to assess whether the Student’s use of the trial system was successful (Exhibits P-O and P-P), which was trialed with expectations of augmenting communication and increasing participation in academic and social activities (Exhibit P-P-2).
• It was reported that staff felt that the device was taking place of the Student’s language and that Student’s Mother did not want the Student to continue using the device (Exhibit P-P-2).
• Student’s speech therapist and classroom teacher at the time reported gains/progress with other interventions to support the Student’s communication needs and access to her curriculum (Exhibit P-P-2), which aligns with Parents’ Expert Witness 4’s finding regarding access to the curriculum.
• Whilst it is asserted that no training was provided when the previous AT trial had occurred, the Student was using the device even without such training that led to staff reporting that it was taking place of the Student’s language (Exhibit P-P-2). The Student is also successfully using an augmentative and assistive communication device (“AAC”) at the Attending School, which is recommended throughout the day for communication purposes (Exhibit P-ZZ).
• I find that an AAC device is necessary in order for the Student to make progress appropriate in light of the child's circumstances^[39], and therefore have included relief pertaining thereto in the final award.
• Given the Student’s successful use of the AAC device, only a limited number of hours of training is being awarded.
• Speech & language:
• Parents’ Expert Witness 4 testified, inter alia, that the Student needs intensive therapy to establish the foundational language skills she is lacking and that prior therapy mandates have not been sufficient enough for her to make meaningful progress (Exhibit P-RR-3, par. 16).
• Parents’ Expert Witness 4 testified that the hours of compensatory services she recommends was derived from a qualitative clinical approach, considering the Student’s current needs and the time she will need to “catch up” to make her whole; and that without a robust clinical program, the gaps will only continue to widen (Exhibit P-RR-3, par. 16).
• Parents’ Expert Witness 4 testified that the hours were “based on how much time I think she needs, based on all of that information that I stated before, to make that meaningful progress to get her to a more appropriate place where she should be” (T. P73, L15-19).
• It is apparent however from the Parents’ Expert Witness 4’s calculation [“I recommend compensatory services in the bank of 690 speech and language hours (providing her with approximately 5 hours a week for 46 weeks, for approximately 3 years)”, Exhibit P-RR-3, par. 16), that she in fact used a quantitative approach and also that the calculation does not factor in speech services the Student received during the years in question.
• It is noted that this recommendation is more than three times as much as that recommended by the Attending School, where the Student is making progress (Exhibit ZZ-21).
• An appropriate adjustment is made in the final award.
• Occupational therapy:
• Parents’ Expert Witness 5 testified, inter alia, that her calculation of the recommended compensatory therapy services is based on both a quantitative and qualitative approach, based on what the Student needs to minimize the gaps (Exhibit P-SS-4, par. 16).
• The calculation used is based on the difference between what, it is asserted the Student should have received and what was mandated or “based on the services she was being provided before” (Exhibit P-SS-4, par. 16; T. P79, L3-5).
• Parents’ Expert Witness 5 testified that she is recommending 1.25 hours per week of compensatory therapy services, to be used as needed (T. P78, L20-22).
• Parents’ Expert Witness 5 conceded in cross-examination that the recommended hours were made in isolation of other hours recommended for other compensatory services (T. P79, L6-14).
• I clarified that this meant both in isolation of what other service providers recommended and what other services were recommended. It was based on Parents’ Expert Witness 5’s findings and what she was aware the Student was mandated to receive before (T. P79, L22-25; P80, L1-11).
• It is noted that OT is only recommended by the Attending School, where the Student is making progress, at 2 x 30 minute session (individual) per week (Exhibit ZZ-21), which aligns with the Student’s previous mandates.
• Physical therapy:
• Parents’ Expert Witness 6 testified, regarding the Student, that instead of progressing her skills, she has fallen further behind her peers, and the need to increase Student’s activities alongside her peers (Exhibit P-QQ-3, par. 13).
• Parents’ Expert Witness 6 recommends compensatory services in the form of a bank of 92 physical therapy hours to provide the Student with physical therapy services for approximately 60 minutes a week for 46 weeks for approximately 2 years (Exhibit P-QQ-4, par. 14).
• Parents’ Expert Witness 6 testified that her recommendation amount was derived from a qualitative clinical approach, considering the Student’s current needs and the time she will need to make up for a lack of appropriate intervention for the last several years (Exhibit P-QQ-4, par. 14).
• Parents’ Expert Witness 6 clarified in cross-examination that the recommended 92 hours is approximately two times a week for 30 minutes, for a full school year, for two years, to make up for what the Student missed in the past and the lack of appropriate intervention that she was receiving.
• It is noted that this recommendation is twice as much as that recommended by the Attending School, where the Student is making progress (Exhibit ZZ-21).
• Feeding therapy:
• Parents’ Expert Witness 7 testified, inter alia, that she found that the Student presents with feeding difficulties (Exhibit P-NN-3, par. 16) and that her deficits impact her social relationships and independence, in both academic and home settings (Exhibit P-NN-3, par. 17).
• Parent’s Expert Witness 7 asserts that the Student’s mouth stuffing, difficulty selecting appropriate and safe size bites, and difficulty pacing herself while eating, indicates that she presently is an unsafe independent eater, and that she must have individualized support while eating to ensure safety. She further asserts that it is the responsibility of the school setting to ensure that students are safe while attending school (Exhibit P-NN-3 & -4, par. 20).
• Parent’s Expert Witness 7 asserts that in order for a student to benefit from the curriculum, they must have adequate nutrition in order to be healthy enough to attend school, have stamina, eat school meals safely, and socialize with peers (Exhibit P-NN-4, par. 20).
• Parent’s Expert Witness 7 recommends compensatory services in the form of a bank of 138 feeding therapy hours (providing her with approximately 1 hour a week for 46 weeks, for approximately 3 years), based on a qualitative approach.
• Given the Student’s progress at the Attending School without such therapy (Exhibits P-PP; and P-ZZ), I find that feeding therapy is unnecessary in order for the Student to make progress appropriate in light of the child's circumstances^[40], and therefore it is omitted in the final award.
• I do cater in my award for a para-professional to be appointed to cater for the safety concerns raised, if deemed appropriate.
• ABA therapy:
• Parents’ Expert Witness 8 testified, inter alia, (Exhibit P-KK-4, par. 17) that she recommends that the Student be provided with 10 hours per week of home-based ABA therapy, which would allow for target skills to be taught (and generalized) in a different setting other than the school.
• Besides generalization, these hours, according to Parents’ Expert Witness 8, would allow for comprehensive ABA treatment to address the Student’s negatively affected developmental domains, such as cognitive, communicative, social, emotional, adaptive, and behavioral, as well as to reach the overarching goal of closing the gap as much as possible between the Student's level of functioning and that of her typically developing peers (Exhibit P-KK-4 & -5, par. 17).
• Whilst generalization and the goal of reducing the gap between the Student and typically developing peers is desirable, Parents’ Witness 1 testified that the Student is thriving academically and therapeutically without the recommended home-based therapy/services. As such, there is an insufficient basis to conclude that the Student requires home-based ABA instruction (with the accompanying Parent training) during this current school year. A District was not required to provide "every special service necessary to maximize the student's potential"^[41].
• Parents’ Expert Witness 8 recommends a bank of 4,140 hours of compensatory ABA [30 hours per week for 46 weeks over 3 years], as she asserts that the Student should have received 1:1 ABA instruction since the beginning of the 2018-2019 school year.
• She further recommends a bank of 138 hours of compensatory Parent training [1 hour per week for 46 weeks over 3 years], as it is asserted that the Parents did not receive any Parent training services related to the application of ABA methodology and its principles since the beginning of the 2018-2019 school year (Exhibit P-KK-5, par. 19)(my emphasis).
• I note that the Parents’ Expert witness 8 disregards all Parent Counseling and Training that the Parents did receive under and in terms of the educational programs over the years in question, in her calculations, and that ongoing training (as distinct from the training recommended for compensatory services – Exhibits P-II-18, par. 9; P-JJ-33, par. 9) as recommended in her report, is recommended for other purposes (Exhibits P-II-17, par. 6; P-JJ-32, par. 6).
• When asked during cross-examination whether the recommended 30 hours are based on any kind of rubric, Parents’ Expert Witness 8 testified that they were “not really”, but given the fact that the Student’s impairment is so present across all life domains, the intensive treatment is recommended. She also stated that her calculations are based on what she believes the Student continues to need, given the Student’s severe impairment, not just what she missed in the past (T. P96, L17-20; and 24-5; P97, L1-5).
• On that line of reasoning, a District could conceivably be required to provide a greater amount of compensatory hours to a student who had a more severe impairment, than a student whose impairment was less severe, even if the District had provided the former student an exponentially greater number of hours of services in the past.
• In such case, the District would be penalized based purely on the severity of the student’s impairment, unconnected with the student’s needs and based on the specific educational deficits that resulted from the FAPE deprivation or the amount of time that comprised the FAPE deprivation, which is clearly not a tenable proposition.
• The final award is adjusted accordingly.
• Parents’ witnesses detailed, as part of their comprehensive remedial proposals, compensatory related services (and non-compensatory services as it relates to the AAC device) as follows:
• 40 hours of device training (2 x 30 minute sessions x 40 weeks) and training in the use of Parent Augmented Input.
• A bank of 690 compensatory hours of S/L therapy (5 hour per week x 46 weeks x 3 years), as recommended by Parents’ Witness 4.
• A bank of 172.5 compensatory hours of OT (1.25 hour per week x 46 weeks x 3 years), as recommended by Parents’ Witness 5.
• A bank of 92 hours of compensatory PT services (1 hour per week x 46 weeks x 2 years), as recommended by Parents’ Witness 6.
• A bank of 4,140 (30 hours per week x 46 weeks x 3 years) 1:1 compensatory ABA hours for the Student, as recommended by Parents’ Witness 8.
• A bank of 138 (1 hour per week x 46 weeks x 3 years) Parent training, as recommended by Parents’ Witness 8.
• No evidence was led as to the hourly rates charged by any proposed service provider for the compensatory services.
• Certain equitable considerations necessitate an adjustment to the final award of compensatory hours granted:
• The DOE did not defend the Interim Order for IEEs sought (Exhibits IHO-V).
• The formulation of the various recommended hours in each domain should not disregard in its entirety the program and related services provided to the Student as a whole, over the years in issue.
• In analyzing the complete educational program offered in each IEP relevant to each school year in issue, I find that although the DOE’s offering did fall short of providing the Student with a FAPE, the DOE still attempted to meet its obligations, re-evaluate the Student, revise her program as a whole, including management needs, interventions and goals compared to the prior program offered. At times: related services were increased and at other times decreased; periods were increased; a para-professional was added and removed; extended year services were catered for, removed, and then added back.
• The programs were not insubstantial and significant efforts made by the District to provide the Student with educational benefits, which would have contributed to address the Student’s deficits and diminish her maladaptive behaviors that interfere with skill acquisition, albeit not at a level that resulted in the DOE providing the Student with a FAPE under the regulations and/or at a level to prevent regression (only for the last school year according to Parents’ Expert Witness 1).
• I find that the Student was provided with "personalized instruction”, just not in the educational placement warranted by the Student’s Diagnosis.
• As indicated previously, school districts are not required to "maximize" the potential of students with disabilities^[42], but must provide "an IEP that is 'likely to produce progress, not regression'. According to Parents’ Expert Witness 1, the Student only “seemed to regress during the past year”.
• Whilst the Parents’ witnesses address the Student’s Diagnosis and the inadequacy of the recommended programs and mandated related services to provide the Student with a FAPE in general terms, the evidence is more relevant to the current year given such witnesses’ recent evaluation of the Student.
• Whilst the Parents’ witnesses make assertions regarding prior school years, these bald allegations are, by and large, not backed up by specific details regarding the specific shortfalls in each school year, supporting the conclusions reached.
• By way of example, the fact that the Student’s mandated S/L services fell short, according to the relevant witness in the 2018-2019 school year by 1.25 hours is not linked by that witness to the asserted shortfall in the program in that year that resulted from the FAPE deprivation, taking into account the Student’s present level of performance (“PLOPS”) at that time; is not linked to the asserted shortfall in the 2019-2020 school year by 1.25 hours in the program in that year that resulted from the FAPE deprivation, taking into account the Student’s PLOPS at that time, and so forth.
• Given the lack of specificity and supporting evidence to substantiate the approach adopted by extrapolating, based upon their current assessments of the Student’s PLOPS, to past school years as a uniform approach, without specifically linking it to the Student’s PLOPS at that time (for each prior school year), the accuracy of such witnesses’ assessment of the asserted shortfall(s) and the accompanying recommendation for each prior school year becomes less reliable the further back one goes.
• There is authority that also bears mentioning in the context of the relief sought, namely:

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

• I am mindful that an overwhelming quantity of hours awarded has the potential to be burdensome. This was specifically highlighted by the District’s representative’s cross-examination of certain of the Parents’ witnesses and asserted in the closing argument, which I find has merit when applied to the facts of this matter (especially in respect of the claim for ABA services).
• These above considerations have factored into my calculation of compensatory (and non-compensatory hours as it relates to the AAC training) hours awarded, also considering the complete relief being awarded herein (including accelerated progress in a relatively short period, resulting from the Student’s attendance at the Attending School, which will continue for the remainder of the school year, and for which reimbursement is being provided), as follows^[43]:
• 40 hours of device training (2 x 30 minute sessions x 40 weeks) and training in the use of Parent Augmented Input - adjusted award: 10 hours of AAC training being awarded (2 x 30min sessions x 10 weeks) (i.e., 25%).
• 690 compensatory hours of S/L therapy - adjusted award: 155 compensatory hours of S/L therapy being awarded (i.e., 22.5%), calculated as follows:
• 18/19 SY: 1.5 hours per week x 46 weeks x 0.65 = 44.85
• 19/20 SY: 1.5 hours per week x 46 weeks x 0.75 = 51.75
• 20/21 SY: 1.5 hours per week x 46 weeks x 0.85 = 58.65
• Total: = 155 hours
• 172.5 compensatory hours of OT - adjusted award: 43 compensatory hours of OT being awarded (i.e., 25%).
• 18/19 SY: 1.25 hours per week x 46 weeks x 0.15 = 8.625
• 19/20 SY: 1.25 hours per week x 46 weeks x 0.25 = 14.375
• 20/21 SY: 1.25 hours per week x 46 weeks x 0.35 = 20.125
• Total: = 43 hours
• 92 hours of compensatory PT services - adjusted award: 17 compensatory hours PT being awarded (i.e., 18%).
• 18/19 SY: 0.5 hour per week x 46 weeks x 0.15 = 3.45
• 19/20 SY: 0.5 hour per week x 46 weeks x 0.25 = 5.75
• 20/21 SY: 0.5 hour per week x 46 weeks x 0.35 = 8.05
• Total: = 17 hours
• 4,140 1:1 compensatory ABA hours - adjusted award: 414 compensatory hours of ABA therapy being awarded (i.e., 10%).
• 18/19 SY: 15 hours per week x 46 weeks x 0.10 = 69
• 19/20 SY: 15 hours per week x 46 weeks x 0.20 = 138
• 20/21 SY: 15 hours per week x 46 weeks x 0.30 = 207
• Total: = 414 hours
• 138 compensatory hours of Parent training - adjusted award: 14 compensatory hours of Parent training being awarded (i.e., 10%).
• 18/19 SY: 0.5 hour per week x 46 weeks x 0.10 = 2.3
• 19/20 SY: 0.5 hour per week x 46 weeks x 0.20 = 4.6
• 20/21 SY: 0.5 hour per week x 46 weeks x 0.30 = 6.9
• Total: = 14 hours
• Other than the reasons provided for adjusting the award for compensatory services and for denying part of the award (feeding therapy refers), I do not find any other applicable equitable factors applicable.

ORDER

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

• ORDERED that, the Student’s most recent IEP that is currently in effect as at the date of this Order is hereby amended, effective from the date of this Order, to reflect a placement recommendation of “NYS-approved non-public school program”.
• IT IS FURTHER ORDERED that, the DOE shall defer the Student’s placement to the CBST for placement in an appropriate NYS-approved NPS program specializing in children with diagnosis of Autism Spectrum Disorders.
• IT IS FURTHER ORDERED that, the CSE team shall meet/convene within 21 (twenty-one) to review the results of the independent evaluations obtained by the Parents (Exhibits P-CC through P-JJ) and prepare an appropriate IEP that includes at a minimum:
• The placement recommendation specified in #1 of the Order.
• Accurate PLOPS.
• Specific, meaningful, and measurable goals tailored to the Student and based on the Student’s current academic and functional levels.
• Appropriate related services, as determined by the CSE team.
• Appropriate modifications and accommodations to be listed as part of the Student’s IEP program, including:
• Access to an AAC device, such as an iPad (or equivalent) with Proloquo2Go, throughout the school day for communication purposes.
• A paraprofessional to support the Student during her consumption of food at school, if it is determined by the CSE team, after seeking input from the Attending School, as to whether the current levels of supervision at the Attending School in insufficient to support the Student during her consumption of food at school.
• ORDERED that, the DOE shall directly fund the Student’s placement at the Attending School for the 2021-2022 school year in the sum of $160,375.00, minus any payments already made by the DOE to the Attending School for the Student’s tuition thereat for the 2021-2022 school year under or in terms of an agreement or Order on Pendency (if applicable).
• IT IS FURTHER ORDERED that, the DOE shall fund the following compensatory services (and non-compensatory services as it relates to the AAC training) for the Student, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by a provider of the Parents’ own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #6 of this Order for each of the services:
• 10 hours of AAC training by a New York State licensed S/L pathologist.
• 155 compensatory hours of S/L therapy by a New York State licensed S/L pathologist.
• 43 compensatory hours of OT by a New York State licensed occupational therapist.
• 17 compensatory hours of PT by a New York State licensed physical therapist.
• 414 compensatory ABA hours by a provider who has training and experience in ABA implementation.
• 14 compensatory hours of Parent training or PCAT by a New York State licensed psychologist or BCBA.

by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.

• IT IS FURTHER ORDERED that, the bank of compensatory services (and non-compensatory hours as it relates to the AAC training) set out in #5 of this Order shall not expire until the expiration of 2 (two) years from the date of this Order and that the amount payable by the DOE for each of the services to the providers of the Parents’ own choosing shall be limited as follows:
• AAC training services at a rate not to exceed $250 per hour.
• Compensatory S/L therapy at a rate not to exceed $250 per hour.
• Compensatory OT at a rate not to exceed $250 per hour.
• Compensatory PT at a rate not to exceed $250 per hour.
• Compensatory ABA therapy, at a rate not to exceed $125.00 per hour.
• Compensatory Parent training or PCAT services, at a rate not to exceed $125.00 per hour.
• IT IS FURTHER ORDERED that, the DOE shall fund the necessary transportation costs to and from the service provider(s) providing the awarded compensatory services.
• ORDERED that, the DOE shall provide/continue to provide the Student with bus transportation to and from the Attending School for the reminder of the current school year, in accordance with the Student’s IEP.
• IT IS FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.

SO ORDERED.

DATED: February 1st, 2022

_HAC (Signed Electronically)___

Impartial Hearing Officer

Harry Aristargos Christodoulou

NOTICE OF RIGHT TO APPEAL

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

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

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

APPENDIX A – PERSONALLY IDENTIFIABLE INFORMATION

STUDENT v. SCHOOL DISTRICT

REDACTED

APPENDIX B – ADMITTED EXHIBITS

STUDENT v. SCHOOL DISTRICT

EXHIBIT NUMBER

DATE

DESCRIPTION

NO. OF PAGES

Parents’

Exhibits:

P-A

04/23/21

Impartial Hearing Request

P-B

05/07/18

IEP

P-C

06/14/18

DOE Prior Written Notice (Notice of Recommendation)

P-D

01/03/19

IEP

P-E

09/23/19

IEP

P-F

09/15/20

IEP

P-G

09/23/20

IEP

P-H

12/10/20

IEP

P-I

03/16/18

DOE Psychoeducational Evaluation Report

P-J

03/20/18

DOE Classroom Observation

P-K

11/12/18

DOE Classroom Observation

P-L

12/10/18

Social History Update

P-M

01/02/19

DOE Functional Behavioral Assessment

P-N

01/02/19

DOE Behavior Intervention Plan

P-O

03/29/19

DOE Assistive Technology Evaluation

P-P

06/14/19

DOE Assistive Technology Evaluation Addendum

Follow-up Report

P-Q

09/11/20

DOE Behavior Intervention Plan

P-R

09/23/20

REDACTED’s Integrated Evaluation

P-S

11/03/20

DOE Social History Update

P-T

11/04/20

REDACTED’s Developmental Peds

Revisit Form

P-U

11/18/20

DOE Classroom Observation

P-V

05/06/21

Classroom Observation

P-W

05/07/21

Social History Update

P-X

01/08/19

Parent’s Request regarding Assistive Technology

P-Y

10/21/20

Parent’s Request for a Reevaluation

P-Z

11/11/20

REDACTED’s Letter regarding REDACTED’s Diagnoses and Needs

P-AA

02/05/21- 03/22/21

Email correspondences between the Parent and the DOE regarding District 75 Placement

P-BB

03/17/21 - 04/16/21

Parent’s Letter Request for Independent

Educational Evaluation/Responses

P-CC

07/07/21

Independent Neuropsychological Evaluation

Report

P-DD

07/26/21

Independent Assistive Technology Evaluation Report

P-EE

07/26/21

Independent Speech and Language Evaluation

Report

P-FF

08/10/21

Independent Physical Therapy Evaluation Report

P-GG

08/13/21

Independent Feeding and Swallowing Evaluation

Report

P-HH

08/16/21

Independent Occupational Therapy Evaluation

Report

P-II

09/27/21

Independent ABA Skills Assessment Report

P-JJ

10/09/21

Independent FBA and BIP Report

P-KK

11/09/21

Parents’ Expert Witness 8 Affidavit of Testimony/CV

P-LL

11/16/21

Mother’s Affidavit of Testimony

P-MM

11/16/21

Cousin’s Affidavit of Testimony

P-NN

11/17/21

Parents’ Expert Witness 7 Affidavit of Testimony/CV

P-OO

11/18/21

Parents’ Expert Witness 1 Affidavit of Testimony & CV

P-PP

11/18/21

Parents’ Witness 1 Affidavit of Testimony/CV

P-QQ

11/18/21

Parents’ Expert Witness 6 Affidavit of Testimony/CV

P-RR

11/19/21

Parents’ Expert Witness 4 Affidavit of Testimony/CV

P-SS

11/19/21

Parents’ Expert Witness 5 Affidavit of Testimony/CV

P-TT

08/03/21

Attending School Enrollment

Contract for 2021/2022, inclusive of Addendums

A, B

P-UU

08/03/21

Addendum C to the Attending School Enrollment Contract for 2021/2022

P-VV

08/23/21

Ten Day Notice and Automatic Responses

P-WW

09/09/21

Amended Impartial Hearing Request

P-XX

10/27/21

Attending School Tuition Affidavit

P-YY

September, October and November of 2021 Attending School Attendance Record

P-ZZ

Attending School REDACTED

P-AAA

Attending School 2021-2022 Program Description/Academic Schedule

District’s

Exhibits:

None

IHO Exhibits:

IHO-I

06/04/21

Affidavit of Parents’ Expert Witness 1

IHO-II

06/04/21

Affidavit of Parents’ Expert Witness 2

IHO-III

06/04/21

Affidavit of Parents’ Expert Witness 3

IHO-IV

06/04/21

Email exchange with the District’s representative

IHO-V

06/09/21

Interim Order: IEES

Footnotes

[1] U.S.C. § 1400 et seq.

[2] C.F.R. § 300 et seq.

[3] Educ. Law Art. 89 § 4404 et seq.

[4] NYCRR § Part 200.

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

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

[7] U.S.C. § 1415[f][3][E][i].

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

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

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

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

[12] NYS Educ. Law § 4404(1)(c).

[13] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).

[14] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].

[15] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007],

[16] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[17] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].

[18] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].

[19] Gagliardo, 489 F.3d at 115.

[20] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).

[21] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under 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 education was unreasonable"].

[22] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see 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. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].

[23] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].

[24] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].

[25] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].

[26] C.L., 744 F.3d at 840.

[27] U.S.C. § 1412[a][10][C][iii][I]; 34 CFR 300.148[d][1].

[28] Greenland Sch. Dist., 358 F.3d at 160.

[29] Florence County School District Four v. Carter, 20 IDELR 532 (U.S. 1993).

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

[31] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.

[32] See for example D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"; and P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school".

[33] See Application of a Student with a Disability, Appeal No. 16-050.

[34] See Application of a Student with a Disability, Appeal No. 20-151.

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

[36] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.

[37] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].

[38] See Application of the Board of Ed. of the S.C.S.D, Appeal No. 21-065.

[39] Endrew F. v. Douglas County School District, 137 S. Ct. (2017).

[40] Endrew F. v. Douglas County School District, 137 S. Ct. (2017).

[41] Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 756 [2d Cir. 2018], cert. denied sub nom., 139 S. Ct. 322 [2018].

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

[43] Rounding is used in the calculation, where required.

New York City Department of Education, Impartial Hearing Decision

PROCEDURAL HISTORY

JURISDICTION

ORDER