New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 209671

Student’s Name: REDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested By: Parents

Dates of Hearings: October 5, 2021

October 19, 2021

March 30, 2022

May 23, 2022

June 8, 2022

Record Close Date: September 30, 2022

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 5, 2021

For the Student:

REDACTED Advocate

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED OCTOBER 19, 2021

For the Student:

REDACTED Advocate

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED MARCH 30, 2022

For the Student:

REDACTED Advocate

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED MAY 23, 2022

For the Student:

REDACTED Advocate

For the Department of Education:

REDACTED District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED JUNE 8, 2022

For the Student:

REDACTED Advocate

REDACTED Parent

REDACTED Administrator, REDACTED For the Department of Education:

REDACTED District Representative

Introduction:

This case was brought before me upon my designation by the Department of Education (“District”) as an impartial hearing officer pursuant to the Individuals with Disabilities Act (“IDEA”), 29 USC §1400 [f][1] and Part 200 of the Regulations of the New York State Commissioner of Education. This matter was brought by the Parents (“Parents”) on behalf of the student (“Student”), through their advocate REDACTED by filing a Due Process Complaint dated July 1,2021 and an Amended Due Process Complaint dated December 22, 2021 with the District. I was appointed as an impartial hearing officer on July 2, 2021.

The Parents are alleging that their son was denied a free and appropriate public education (“FAPE”) and equitable services for the 2021-22 school year and are seeking an order directing the District to fund the Student’s October 2020 Neuropsychological Evaluation at the rate of $5,000. They are also requesting an order implementing the following services on a twelve month basis: SETSS, 15 times per week, 1 period each time, 1:1; Speech and Language Therapy, six times per week, 60 minutes each time, 1:1; Physical Therapy, seven times per week, 60 minutes each time, 1:1; Occupational Therapy, four times per week, 60 minutes each time, 1:1; Counseling, two times per week, 30 minutes each time, 1:1; Vision Therapy, one time per week, 60 minutes each time, 1:1; Neurocognitive Therapy, two times per week, 45 minutes each time, 1:1; and Reading Instruction, two times per week, 30 minutes each time. It should be noted that the final summary of relief requested changed during the course of the hearing.

There were five days of hearings in this matter. Hearings were conducted on October 5 and October 19, 2021 and March 30, May 23 and June 8, 2022. Extensions were granted in this case making the final compliance date October 3, 2021.1 A list of Parent Exhibits are attached as Exhibit A. The District did not submit exhibits.

Background

This case involves a REDACTED student. During the 2021-22 school year, the Student attended REDACTED where the Student was unilaterally placed by his Parents.

With respect to the 2021-22 school year, an Individualized Education Service Program (“IESP”) was developed on January 12, 2021. P-C. Pursuant to the January 12, 2021 IESP, the following recommendations were made:

• • SETSS, group service, 15 times per week, one period each time;
• • Speech-Language Therapy, 1:1, six times per week, 60 minutes each time;
• • Occupational Therapy, 1:1, four times per week, 60 minutes each time;

1 The Parties moved to extend the compliance date in this matter several times during the course of the hearing. In considering these requests, I weighed the cumulative impact of the relevant factors and found that the requests were in accordance with the requirements of due process. Accordingly requests for extensions of the case compliance date were granted.

• • Physical Therapy, 1:1, seven times per week, 60 minutes each time; and
• • Counseling, 1:1, two times per week, 30 minutes each time.

The Student also received a paraprofessional, 1:1, daily,.2 for orientation and mobility and fulltime for physical assistance as well as special transportation with a transportation paraprofessional. P-C.

On May 4, 2021, an IEP was developed for the period from July 2, 2021 through August 16, 2021 recommending the same special education program/services that were recommended on the July 12, 2021 IESP. P-B.

With respect to the 2021-22 school year, another IESP was developed on February 4, 2022 to begin February 18, 2022. P-F. Pursuant to the February 4, 2022 IESP, the following recommendations were made:

• • SETSS, group service, 15 times per week, one period each time;
• • SETSS, group service, two times per week, one period each time;
• • Speech-Language Therapy, 1:1, six times per week, 60 minutes each time;
• • Physical Therapy, 1:1, seven times per week, 60 minutes each time;
• • Occupational Therapy, 1:1, four times per week, 60 minutes each time; and
• • Counseling Services, 1:1, two times per week, 45 minutes each time.

The Student also received a paraprofessional for physical assistance, 1:1, full time, daily and a transportation paraprofessional, 1:1, daily. 2. P-T.

A Pendency Hearing took place on October 19, 2021 and a Pendency Order was issued on October 21, 2021, based on a Findings of Fact and Decision dated October 6, 2021, which provided for the following;

• • SETSS, group service, 15 times per week, one period each time;
• • Speech-Language Therapy, 1:1, six times per week, 60 minutes each time;
• • Occupational Therapy, 1:1, four times per week, 60 minutes each time;
• • Physical Therapy, 1:1, seven times per week, 60 minutes each time;
• • Counseling Services, 1:1, two times per week, 30 minutes each time;
• • Neurocognitive Therapy, 1:1, two times per week, 45 minutes each time;
• • Reading Instruction, 1:1; two times per week, 30 minutes each time; and
• • Vision Therapy, one time per week, 60 minutes each time. IHO-I.

In addition, the Student was provided under pendency with a paraprofessional 1:1, daily,.2 for orientation and full-time for physical assistance as well as special transportation with a transportation paraprofessional. P-D.

The Parents filed a Due Process Complaint on July 2, 2021 (P-A) and an Amended Due Process Complaint on December 22, 2021. P-H. I was appointed as an Impartial Hearing Officer on July 2, 2021.

The District’s Case The District did not call any witnesses and did not place any documents in evidence.

The Parents’ Case The Parents called two witnesses, the Parent and REDACTED and placed twenty-two

(22) documents in evidence. P-A—P-U.

The Parent testified that before his son’s injury he was an advanced student and did well in every subject. Once he had his brain injury everything changed but he is slowly making progress in all areas. The Parent stated that he participated in the IEP/IESP meetings that were held this year and last year. Tr. 136. The Parent stated that most of the educational needs of the Student and his requests were responded to positively. For some of the services like vision therapy that were requested, he was told they are not on their school program. Tr. 137. For all of the IEP/IESP meetings, reports were sent by all providers working with the Student to update the CSE on his gains. Tr. 137. He stated that the Vision Evaluation (P-P) was submitted to the District prior to the 2022 IEP meeting. Tr. 138.

As of February 2022, the Parent was in agreement with the provision of SETSS, Occupational therapy, Physical therapy, para services, and Counseling services. Tr. 141. In terms of Counseling services, the Parent testified that the Student has not needed them yet despite the fact he was mandated to receive Counseling two times per week. He stated that so far the Student is upbeat and positive as he continues to see gains and positive results, however, at some point they might need counseling due to the volatility of his circumstances and he does not want to lose the mandate Tr. 143. The Parent stated that the District has never offered the Student a counselor nor provided him with an RSA. Tr. 144. The Parent testified that all of the therapists the Student utilizes were found by the Parents. Tr. 144. The Parent testified that on the Student’s IESP for the 2020-21 school year Counseling was for 2x30 and on his IESP for 2021-22, Counseling was on his IEP for 2x45. Tr. 147. The Parent stated that at the 2021-22 IESP meeting, he asked whether the neuropsychologist they were working with and the work she was doing with his son qualified as counseling. Tr. 148. He testified that that is why they asked for an increase in counseling, however he does not recall whether or not they stated whether it would qualify as counseling. Tr. 148. REDACTED worked with the Student with his frontal lobe utilizing tactics to rebuild and connect different pieces of the brain. Tr. 148. The Parent stated that the Student was receiving the Neurocognitive Therapy from September to February 2021 but it was private pay. Tr. 149. The Parent stated that they took a break from Neurocognitive therapy at that point as he was leveling off. They were doing it on Zoom and it was not working out that well. The Parent stated that they took a break and were going to reevaluate and try to fit it back in his schedule in the future. Tr. 150. REDACTED then stated that he might be mistaken and the Student may not have received Neurocognitive Therapy this year. Tr. 152. He stated that he would seek to implement Counseling services with a psychologist if his son needed it. Tr. 155. REDACTED testified that he never received counseling to date. Tr. 157.

At the 2021-22 IEP meeting REDACTED testified that in addition to the services that were agreed to, he asked for Vision services. Tr. 160. Although the District does not provide those services, they received them based on the Pendency Order from REDACTED, a Neuro- ophthalmologist. Tr. 161. The Parent took the Student for Vision services during the winter, approximately once a week for 12 sessions. Tr. 161. He paid $400 at the initial session and received a computer program for his homework at home, $60 for the next three visits and $90 for the remaining visits. Tr. 162. He paid for those visits by credit card. Tr. 163.

For SETSS, Physical Therapy, Occupational Therapy, Speech and Language Therapy, and the paraprofessional, the Student uses all of the services recommended by the CSE. Tr. 164. The Parent found all of the providers on his own. For SETSS, the provider is REDACTED from REDACTED. Tr. 166. The Parent testified that this wife entered into an agreement dated May 27, 2021 with REDACTED for SETSS services at the rate of $195 per session. P-R. The Student has been receiving two extra periods of SETSS since February based on the February 2022 IESP. Tr. 170. Speech and Language Therapy was being provided by REDACTED. Tr.

• • She charges $250 per session. Tr. 172. For Occupational Therapy, the provider was REDACTED. Tr. 173. She accepts the District rate. Physical Therapy is provided by an agency called REDACTED and they do not accept the District rate but accepted an enhanced rate. Tr.
• • The paraprofessional services are being provided by REDACTED who works for REDACTED. The agency rate for these services is $90 an hour. Tr. 175. An agreement was entered into this regard. P-S. The Parent testified that he has not been billed for the Speech and Language Therapy, SETSS or the paraprofessional. Tr. 178.

The Parent testified that a Neuropsychological Evaluation was performed in October 2020 by REDACTED. The Parent stated that he reached out to the District prior to the evaluation to seek approval for an independent evaluation and it was granted. Tr. 179. In this regard, the District approved a Neuropsychological Assessment at a rate not to exceed $5,000 on August 31, 2020. P-E. Therefore, the rate for the Neuropsychological Evaluation was ordered at

$5,000. The District did not provide an evaluation. When REDACTED attempted to use the voucher provided by the District, he was denied payment for the evaluation. The District stated that he was not an approved service provider. Tr. 181. Accordingly, as of this date REDACTED has not been paid for his evaluation and the Parent is liable for payment. Tr. 182. REDACTED was recommended by an organization called REDACTED that has been helping the family since the injury and was told he was a highly respected neuropsychologist in the community. Tr. 183.

The District has not paid the evaluator due to an internal process with respect to approval. Tr. 184.

In terms of transportation, the Parent testified that there is no bus that takes the Student to school. He walks to and from school (it is five to six blocks from home). Tr. 185. On the days he does not walk, he is transported by a para via a private car. Tr. 186. The reason that bus transportation was provided was due to the Parents’ concern that in winter, there would be safety issues. Tr. 188. He has a limp and his balance is not great. In addition, his vision is impaired especially his peripheral vision. Accordingly he has to be extremely careful when walking to school. Tr. 189. The difficulties he has with vision and walking are related to his diagnosis of hemiplegia which addresses damage to the left side of the brain. Tr. 190. The Parent testified that he was in agreement with the Student receiving transportation and a transportation para on his IESP. Tr. 190.

The Parent is aware that there is a reimbursement process for the cost of fuel going to and from the Student’s related services. Tr. 191. He has not billed for this, but fuel is very expensive. He does not know if he would be reimbursed for the current cost of fuel since he has not billed yet. Tr. 192. The Student needs to be transported to Physical Therapy since it is on Long Island (20 miles from school). The Parent is covering the cost of transportation and seeking reimbursement for it. Tr. 193. He said that if he took an average of what he is paying for fuel across the span of the school year, it would be between $3 and $3.50 a gallon.

The next witness was REDACTED. He is an administrator at REDACTED. Tr.

REDACTED is an agency that provides special education services to students who need SETSS and SEIT services. Tr. 201. He is involved in hiring staff, overseeing billing, and making sure services are provided to the students. Tr. 202. He is familiar with the Student since he is receiving services at their agency. Tr. 202. He began services in July 2021. Through the end of February, he received fifteen hours of SETSS and then he started to receive 17 hours a week of SETSS services based on the change in his IESP. Tr. 203. They have a contract with the District’s Implementation Unit and have been authorized for payment in this case. They charge

$195 per hour for SETSS services. Tr. 203. They have not received payment from the Implementation Unit but they have confirmation that it is authorized. 204.

Findings

Two purposes of the IDEA (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 individual 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 (20 U.S.C. 1499[D][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in School Committee of the Town of Burlington v. Dep’t of Educ. of Massachusetts, 471 U.S. 359 [1985]. 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 (Prong 1), the services selected by the Parent were appropriate (Prong 2), and equitable considerations support the parent’s claim (Prong 3). Burlington, 471 U.S. at 370; Cerra v. Pawling Cent. Sch.

Dist., 427 F.3d 186, 192 92d Cir. 2005]).

The purpose of the IDEA is to ensure that all children with disabilities have available a free and appropriate public education (FAPE) which addresses their unique special education needs and to ensure that their rights and the rights of Parents are protected. 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 (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep’t of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; 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. Fla. Union Free Sch. Dist., 142 R.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 indicated that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not” (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]). Under the IDEA, 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 (20 U.S.C. §1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkleman 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).

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 (20 U.S.C. § 1415 [f][3][E][i]). A school district offers FAPE by “providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction” (Rowley, 458 U.S. at 203). However, the “IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP” (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998]; 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” (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see, Grim, 346 F.3d at 379). Additionally, school districts are not required to “maximize” the potential of students with disabilities (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’ (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see, P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 20007 WL 465211, at *15). The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit” (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see 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”]; see Rowley, 458 U.S. at 192). The student’s recommended program must also be provided in the least restrictive environment (20 U.S.C. § 1412 [a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2];8 NYCRR 200.1[cc], 200.6[a][1]; see 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).

An appropriate education begins with an IEP that accurately reflects the results of evaluations to identify the students’ needs (34 CFR 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 related to those needs (34 CFR 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services. (see 34 CFR 300.320[a][4];8 NYCRR 200.4[d][2][v]; see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The New York State Legislature amended the Education Law to place the burden of production and persuasion upon the school district during an impartial hearing except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (Educ. Law §4404[1][c], as amended by Ch. 583 of the Laws of 2007).

The District conceded FAPE in this matter and therefore did not meet its burden. In fact, REDACTED stated that “I believe today that with [the Parents] documents, with their affidavits, with the information from the testing, [the District] has no objections to any of the services, even the neuropsychological services the child’s getting because of the impairments [that occurred] after the traumatic injury with the brain.” Tr. 110-111. In addition to the District’s concession of FAPE, it should be noted that no IESP was created prior to September 2021 for the 2021-22 school year and no IEP was created for summer services. In fact, no IEP or IESP was developed for the 2021-22 school year until the February 4, 2022 IESP was created. P-F

Therefore, for all the foregoing reasons, I find the District did not provide FAPE to the Student and/or equitable services for the 2021-22 school year.

Based upon the Pendency Order dated October 21, 2021 (IHO-I), the Student was entitled to pendency in the Findings of Fact and Decision for Case Number 196122 dated October 6, 2021 (Decision). P-D. Therefore, for the entirety of the 2021-22 school year beginning with October 6, 2021 (the date of the Decision), the Student was mandated to receive the following services under pendency:

• • SETSS, group service, 15 times per week, one period each time;
• • Speech-Language Therapy, 1:1, six times per week, 60 minutes each time;
• • Occupational Therapy, 1:1, four times per week, 60 minutes each time;
• • Physical Therapy, 1:1, seven times per week, 60 minutes each time;
• • Counseling Services, 1:1, two times per week, 30 minutes each time;
• • Neurocognitive Therapy, 1:1, two times per week, 45 minutes each time;
• • Reading Instruction, 1:1; two times per week, 30 minutes each time; and
• • Vision Therapy, one time per week, 60 minutes each time.

In addition, the Student was provided under pendency with a paraprofessional 1:1, daily,.2 for orientation and full-time for physical assistance as well as special transportation with a transportation paraprofessional. P-D.

In connection with the 2021-22 school year, REDACTED stated that the District had no objection to any of the services the Parents were requesting. Therefore, based on this as well as the District’s failure to conduct an IESP meeting prior to the start of the 2021-22 school year, as well as the documentary and testamentary evidence presented, it is clear that special education program/services on the Pendency Order (IHO-I) should have been provided to the Student from the beginning of the 2021-22 school year.

With the exception of Neurocognitive Therapy and Vision Therapy, the February 4, 2022 IESP provided for the same special education program/services that were provided in the Findings of Fact and Decision except that the SETSS was increased at that time to 17 times per week instead of the 15 sessions provided for under pendency since the extra two sessions were provided in lieu of two sessions of Reading Instruction previously mandated under pendency.

Therefore, it is clear that the District was in agreement, based on their recommendations in the January 2021 IESP and the recommendations in the February 4, 2022 IESP with the provision of SETSS services, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling Services and Reading Instruction for the 2021-22 school year. Even though these services were mandated under the October 21, 2021 Pendency Order (IHO-I) and should have been funded by the District, the Parent testified that he has paid for many of the services the Student received under pendency out of pocket. Therefore, the Parents should be reimbursed for the SETSS, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling Services and Reading Instruction the Student received during pendency for the 2021- 22 school year upon proof that the service was provided by the provider and proof of payment by the Parents.

In addition to REDACTED’s concession that she did not object to any of the services that the Parents were proposing, with respect to Neurocognitive Therapy, the Parent testified to the need for the Neurocognitive Therapy to try and rebuild and connect the different pieces of the brain as a result of his cerebral artery aneurysm. In addition, REDACTED also recommended Neurocognitive Therapy to improve his “community functioning, self-efficacy and life satisfaction”. He stated in his evaluation, that the Neurocognitive Therapy, in conjunction with the other therapies, will produce greater improvements in those skills (i.e., Speech, Occupational Therapy, and Physical Therapy). P-F. Although, the Parents stopped the Neurocognitive Therapy during the 2021-22 school year, they should be reimbursed for the Neurocognitive Therapy the Student did receive during the 2021-22 school year, if any, upon proof that the service was provided by the provider and proof of payment by the Parent. The Parent has stated that the Student shall not receive make-up services for any mandated Neurocognitive Therapy not provided under pendency for the 2021-22 school year, since they had made the choice during the 2021-22 school year to discontinue the therapy.

With respect to Vision Therapy, a Vision Evaluation dated February 11, 2021 was provided by REDACTED, who indicated that he requires a course of in-office Vision Therapy, one time per week for 60 minutes each time. P-P. The Parent also testified to the need for said therapy. Tr. 160-163. In addition, REDACTED stated that he required the Vison Therapy services to address his diagnoses and “aid in the remediation of his significant injuries and enable the Student to read, as well as benefit from academic instruction presented with visual stimuli.” P-F. Even though Vision Therapy was mandated under the October 21, 2021 Pendency Order (IHO-I), the Parent testified that the District has not funded this service. Therefore, the Parents should be reimbursed for the Vision Therapy sessions the Student received for the 2021- 22 school year, upon proof that the service was provided by the provider and proof of payment by the Parents.

With respect to Parent’s request for compensatory services, compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v.

Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]). Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]; Application of a Child with a Disability, Appeal No. 03-078 [awarding two years of instruction after expiration of IDEA eligibility as compensatory education]). 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]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d at 123 [2d Cir. 2008] [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *24 [E.D.N.Y. Oct. 30, 2008] [finding that compensatory education may be awarded to students under the age of twenty-one]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at *12-*13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008]). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. 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]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13- 226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be 8 reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]). Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the 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"]; Bd. of Educ. 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, 401 F.3d at 518, 525 [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"]; Puyallup, 31 F.3d at 1497 ["There is no obligation to provide a day-for day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Where there has been a violation of FAPE, hearing officers have broad authority to grant such relief as they deem appropriate, including compensatory education. 20 U.S.C. 1412 (a)(1), 1415(i)(2)(C)(iii), 34 C.F.R. 300.51 (c)(5); P. v. Newington Bd of Educ., 546 F.3d 111, 123 (2d Cir. 2008). A hearing officer should thus award compensatory education in the form of education or services where such an award is necessary to make up for a FAPE deprivation. P., 546 F. 3d at 123 (citation omitted). In evaluating a claim for compensatory education, a hearing officer must engage in a fact-specific inquiry to fashion an award that is “reasonably calculated to provide educational benefits that likely would have accrued from…services the school district should have supplied in the first place.” Reid. v. Dist. Of Columbia, 401 F.3d 516, 524 (D.C. Cir 2005).

For the 2021-22 school year, the Parent testified that the Student did not receive her full mandate of services including SETSS, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling services, Reading Instruction and Vision Therapy. Therefore, the District shall provide the Student with the SETSS, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling services, Reading Instruction and Vision Therapy he did not receive, upon the District’s submission of proof and a calculation as to what hours were delivered and funded, and what hours the Student did not receive for the 2021-22 school year.

This must be completed within fifteen days of the date of this Order. Once calculated the Parents shall be entitled to make-up services for the services not provided to the Student during the 2021- 22 school year, at the reasonable market rate for such services, by appropriate therapists of Parents’ choosing. All make-up services must be completed within two years from the date of this Order.

The Parents shall be reimbursed for any SETSS services, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling services, Vision Therapy, Neurocognitive Therapy and Reading Instruction mandated for the 2021-22 school year and provided to the Student but paid for by the Parents, upon proof that the service was provided by the provider to the Student and proof of payment by the Parents.

With respect to the Neuropsychological Evaluation conducted by REDACTED dated November 10, 2020, The District shall fund said evaluation within 30 days of the date of this Order. The District authorized payment for a Neuropsychological Evaluation and agreed that they should obtain the evaluation privately and that the District would fund the evaluation P-E; P-F. The psychologist is a licensed clinical psychologist with a doctorate in Educational Psychology and is director of the psychiatric division of REDACTED and owns a private practice where he conducts Neuropsychological evaluations. P-G.

I find that the Parents participated in the IEP/IESP meetings and provided the school with all reports, and other necessary evaluations for the 2021-22 school year. Based upon their actions, in terms of equitable considerations, I find that the Parents cooperated with the District and analysis of equitable considerations offers no basis to rule against them.

ORDER

Based upon the foregoing, it is hereby ORDERED, that

• • For the 2021-22 school year, the Student should receive the following special education program/services on a 12 month basis:
• • SETSS, group service, 15 times per week, one period each time;
• • Speech-Language Therapy, 1:1, six times per week, 60 minutes each time;
• • Occupational Therapy, 1:1, four times per week, 60 minutes each time;
• • Physical Therapy, 1:1, seven times per week, 60 minutes each time;
• • Counseling, 1:1, two times per week, 30 minutes each time;
• • Neurocognitive Therapy, 1;1, two times per week, 45 minutes each time;
• • Reading Instruction, 1:1, two times per week, 30 minutes each time;
• • Vision Therapy, 1:1, one time per week, 60 minutes each time.

In addition, the Student should have received a paraprofessional, 1:1, daily,.2 for orientation and mobility and fulltime for physical assistance, as well as special transportation with a transportation paraprofessional. P-G.

• • For the 2021-22 school year, the District shall create a bank of hours for all SETSS, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling, Reading Instruction, and Vision Therapy not received by the Student, upon the District’s submission of proof and a calculation as to what hours were delivered and funded, and what hours the Student did not receive for the 2021-22 school year. This must be completed within fifteen days of the date of this Order. Once calculated the Parents shall be entitled to make-up services for the services not provided to the Student during the 2021-22 school year, at the reasonable market rate for such services, by appropriate therapists of Parents’ choosing. All compensatory/make-up services must be completed within two years from the date of this Order.
• • The Parents shall be reimbursed for any SETSS services, Speech and Language Therapy, Occupational Therapy, Physical Therapy, Counseling services, Vision Therapy, Neurocognitive Therapy, and Reading Instruction mandated for the 2021-22 school year and provided to the Student but paid for by the Parents, upon proof that the service was provided by the provider to the Student and proof of payment by the Parents for said service.
• • For purposes of this Order, it should be noted that commencing on February 18, 2022, the Student was provided with two additional sessions of SETSS services (making it 17 sessions instead of 15) in lieu of the two sessions of Reading Instruction.
• • The District shall fund the Student’s October 2020 Neuropsychological Evaluation conducted by REDACTED at the rate of $5,000, upon receipt of an invoice in this regard and proof that the evaluation was conducted.

Dated: October 9, 2022

Elise B. Kestenbaum Elise B. Kestenbaum, Esq. Impartial Hearing Officer

NOTICE OF RIGHT TO APPEAL

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

If either party plans to appeal the decision, a notice of intention to seek review shall be 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 serviced upon opposing part 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 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 and model forms are available at: www.sro.nysed.gov/appeals.htm.

District Exhibits

Appendix A Evidence

No. Date Document Pages None

Parents’ Exhibits

No.

Date

Document

Pages

A 7/1/2021 Impartial Hearing Request 6

B 5/4/2021 CSE IEP (12 month) 22

C 1/12/2021 CSE IEP 16

D 10/6/2021 FOFD Case No. 196122 19

E 8/31/2020 District Neuropsychological AA Approval Letter 5

F 11/10/2020 Neuropsychological Report 7

G 3/23/2022 Affidavit from Neuropsychologist 2

H 12/22/2021 Amended Due Process Complaint 4

I 1/31/2022 Ten Day Notice 1

J 11/10821 Independent Educational Evaluation 11/24/2021 19

K 12/27/2021 SETSS Progress Report 8

L 5/17/2022 Occupational Therapy Progress Report 2

M 1/7/2022 Physical Therapy Progress Report 4

N 12/27/2021 Speech Therapy Progress Report 8

O 2/4/2022 Speech Authorization 1

P 2/11/2021 Vision Evaluation 4

Q 7/1/2021 Contract for Speech Services 1

R 5/27/2021 Contract for SETSS Services 2

S 7/1/2021 Contract for Paraprofessional Services 2

T 2/4/2022 CSE IESP for SY 21-22 14

U 5/1/2022 Reading Instruction Progress Report 2 IHO Exhibits No. Date

Document

Pages

I. 10/21 /2021 Pendency Order