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Special Education Law
DECISIONParent PrevailedIHO Case No. 558735

Impartial Hearing Decision

December 15, 2021·Martin J. Kehoe III·’s Position 10

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

UNIVERSITY OF THE STATE OF NEW YORK STATE EDUCATION DEPARTMENT

IN THE MATTER OF THE IMPARTIAL HEARING BROUGHT UPON THE REQUEST OF PARENTS CONCERNING THEIR CHILD

AGAINST Findings of Fact and Decision

Case Number: 558735

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Table of Contents

Table of Contents

  • • Introduction 2
  • • Overview 2
  • • Failure to Implement 2
  • • Demand for Compensatory Education 4
  • • Background of the Case 5
  • • Student History 5
  • • Recommended Programs 6
  • • August 2019 6
  • • August 2020 6
  • • The Doctor’s Mask-Exemption Notes 7
  • • Stipulated Facts 8
  • • Position of the Parties 9
  • • Parent’s Position 9
  • • District’s Position 10
  • • Scope of the Hearing 11
  • • Issue: Did the District Present a Prima Facie Case for a FAPE with Respect to the Three Years in Question? 12
  • • Legal Standard 12
  • • Analysis 14
  • • Conclusion. 16
  • • Compensatory Education 16
  • • Make Up Services Are Warranted 16
  • • Legal Standard 16
  • • Analysis 18
  • • March 18, 2020, until the filing of the Complaint Notice September 14, 2021 18
  • • Period From September 14, 2021, until December 15, 2021, the Date of This Order 19
  • • Prospective Actions to be Taken 20
  • • Remand to CSE to Properly Evaluate and Document Further Actions 20
  • • Conclusion / Rationale for Award 21
  • • Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student as Student.

The Parent filed the initial complaint notice on September 14, 2021. (Ex. 1) I was appointed as the IHO on September 15, 2021. On October 22, 2021, I issued an interim order appointing the guardians ad litem (guardians) for the Student. (Ex. E) The issue of pendency was raised by the guardians first, in a letter dated October 20, 2021, (Ex. E) but the issued was deferred while the parties considered settlement options. A hearing for this case was conducted on December 6, 2021. The parties stipulated to exhibits 1-22 and the Parents called a single witness, the Student’s Mother. (Ex. H) Exhibits A-K were introduced to the record as IHO evidence. At the end of the hearing, the guardians again raised the issue of pendency and, following a short briefing schedule, I issued a pendency order on December 14, 2021, effective as of the filing date of September 14, 2021. (Ex. IHO L)

  • • Overview
  • • Failure to Implement This case is about failure to implement an Individual Education Program (IEP) that the Parent endorses, which the District recommended, and which was in place for a time. The Committee on Special Education (CSE) recommended an ambitious program for this fragile Student and implemented the program without a hitch until the beginning of the Covid 19 pandemic. At that time, the health and safety measures taken by the District to protect against the spread of the virus created an issue for the Student whose pediatrician (the Doctor) directed the Student to not wear a face mask because it is medically contraindicated. The most recent IEP, created in August 2020, was implemented briefly, over the summer of 2021, when the Student was accommodated with the provision of a face shield in place of a face mask. For the first time since March 2020, all seemed all right.

At the start of school for fall 2021 approached, [the Parent] anticipated that [the Student] would continue to attend school with a face shield accommodation. (Ex. J) However, the Parent received a letter unclearly dated “September 2021,” from a District “Medical Review Advisory Team” informing her that the Student would again be indefinitely excluded from in-person school because she is unable to wear a face mask. (Ex. 12) Instead, the District policy instead granted the Student “concurrent remote instruction” while the City remained in a “redzone.” (Ex. 12) The impact of this exclude the Student from any 1:1 in person learning and remove her necessary skilled nursing services, among other things.

The Parent had only requested a continued mask accommodation (use of the face shield) from the District and was confused by the Medical Review Advisory Team letter, as the Parent did not request for the Student’s program to be changed to home or virtual instruction. (Ex. J) The letter from the District did not offer the Parent any opportunity to appeal the Medical Review Advisory Team’s decision and did not mention a CSE meeting to update the Student’s program. (Ex. 12) The District rejected the Parent’s requests for alternative accommodations, such as pairing the Student with vaccinated staff members, providing instruction outdoors or in classrooms with open windows, or daily testing. (Ex. J) The Parents are concerned because the Student has regressed in all skill areas. (Ex. J)

The federal regulations are clear that a district must implement a student's IEP with all required components. 34 CFR 300.323 (c). Since the outbreak of COVID-19, the U.S. Education

Department stated that in general, if a school closes its doors to stop COVID-19 from spreading, and the district isn't providing educational services to the student population in general, then "the [local educational agency] would not be required to provide services to students with disabilities during the same period of time. (Ex. 19-2) Once school resumes, however, districts must "make every effort" to provide special education and related services to the child in accordance with the IEP or 504 plan. In addition, a child's IEP team would need to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements." (Ex. 19-2) Questions and Answers on Providing Services to Children With Disabilities During the Coronavirus Disease 2019 Outbreak. EDU 2020.

  • • Demand for Compensatory Education This case also involves a demand for “compensatory education” for the 2019-2020, 2020-2021, and 2021-2022 extended school years (ESYs). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].
  • • Background of the Case This case is concerned with mask-exemption and the District’s ability to implement reasonable educational plans within the strict COVID-age restrictions. (Ex. A) The District provided the Student with an adequate IEP in both 2019 and 2020, which is undisputed by either party. (T. 16) The primary reason the Parent has brought this case is because the District was unable to implement the programs and reconcile the mandates of the IDEA with those of the various Covid- 19 efforts. (Ex.s A & I)

Beginning on March 18, 2020, the “Remote Learning Order” called for every Student in the District to attend school via remote instruction. At the time of the order, the Student was under the program set forward by the August 2019 IEP. (Ex. 2) A subsequent and identical IEP (Ex. 3) was produced in November 2020 which was undisputed by either party.

  • • Student History The Student is known as “a happy and loving child, who is able to smile, shake her head side to side, make noises, and clap her hands when she is happy”. (Ex. I-2) She was classified by the District as having Multiple Disabilities1 and is diagnosed with Pierre-Robin sequence, Ehlers- Danlos Syndrome, hyperthyroidism, apnea, congenital heart defect, cleft palate, hip dysplasia, bilateral club feet, gastroesophageal reflux disease, intellectual disability, and mild-to-moderate bilateral hearing loss. (Ex.s A-5 & I) She requires assistance with eating (tube fed), toileting, 1 8 NYCRR Part 200.1(zz)(8) Multiple disabilities means concomitant impairments (such as intellectual disability-blindness, intellectual disability-orthopedic impairment, etc.), the combination of which cause such severe educational needs that they cannot be accommodated in a special education program solely for one of the impairments. The term does not include deaf blindness.

dressing, and all other ADL, specifically from skilled nurses who daily “flush her feeding tubes… [and] suction excess mucus from her lungs. (Ex. A-5) Additionally, the Student is nonverbal and nonambulatory, needs “hand-over-hand assistance” for redirection and has yet to learn how to use assistive communication devices. (Ex.s A & I) She is alternately assessed and attends an ESY to prevent regression during the summer months. (Ex.s I-2, & A)

  • • Recommended Programs
  • • August 2019 The IEP developed in August 2019 recommended this program: (Ex. 2)

12-month ESY with Special Class 12:1 + (3:1) in 6x6 day cycle for 4.5 hours SLT 1:1 in 4x6 day cycle for 30 min

OT 1:1 2x6 day cycle for 30 min PT 1:1 2x6 day cycle for 30 min

OT/PT Co-Treatment 1:1 1x6 day cycle for 30 min Modified Curriculum, Daily

Skilled Nurse, Daily, for “water flush” and “oral suctioning”

Assistive Technologies, KidKart, Posterior Walker, Bilateral AFO’s, and class chair with belts to secure arms and lap to assist with physical positioning

PT Consultation 4x year for 30 min Vision Consultation 2x year for 15 min Hearing Consultation 1x month for 30 min Special Transportation

  • • August 2020 The IEP developed in August 2020 recommended this program: (Ex. 3)

12-month ESY with Special Class 12:1 + (3:1) in 6x6 day cycle for 4.5 hours SLT 1:1 in 4x6 day cycle for 30 min

OT 1:1 2x6 day cycle for 30 min PT 1:1 2x6 day cycle for 30 min

OT/PT Co-Treatment 1:1 1x6 day cycle for 30 min Modified Curriculum, Daily

Skilled Nurse, Daily, for “water flush” and “oral suctioning”

Assistive Technologies, KidKart, Posterior Walker, Bilateral AFO’s, and class chair with belts to secure arms and lap to assist with physical positioning

PT Consultation 4x year for 30 min Vision Consultation 2x year for 15 min Hearing Consultation 1x month for 30 min Special Transportation

Each IEP offers a near identical program for the Student. The District did not reconvene a CSE to make a new IEP after the “remote concurrent instruction” exemption to the County Department of Health’s mask mandate. (Ex. 12)

  • • The Doctor’s Mask-Exemption Notes On April 30, 2021, (Ex. 8) May 12, 2021, (Ex. 9) and July 16, 2021, the Doctor sent several notes explaining that the Student should be exempt from the mask-mandate. The most detailed is included:

Due to her profound developmental delays, she cannot be expected to understand the need for keeping a mask on her face. Additionally, due to her pulmonary disease and congenital malformations of her face, chin, mouth, palate and airway, she should not be required to have a mask on her face. She will struggle with the abnormal position of the mask on her face and the blockage produced by the mask over her oropharynx will impede her ability to keep her airway clear of secretions. She can wear a face shield IF it is tolerated however, if she is not cooperative, it is not necessary, and an exemption from the face shield should also be allowed.

Surely, those at risk for severe COVID disease would have by now have taken appropriate action to protect themselves by having gotten vaccinated. Additionally, as adults, they are most capable of maintaining appropriate infection precautions, i.e., proper and good hygiene. This will to minimize any exposure not only to themselves, but also to the other students in the classroom. It should be of some comfort to those working in the classroom to know that research has demonstrated that children are not significant vectors of the spread of COVID infection. Indeed, adults are the primary vectors, so their appropriate precautionary measures are far more relevant and important than those of small children. (Ex. 10)

As a result of the advocacy, the Student attended school in-person at District school #REDACTED from June 7, 2021, to August 13, 2021, wearing a face shield. (Ex. 11)

During September 2021, the District sent a letter essentially denying the mask-exemption that was previously employed. (Ex. 12) As of then the Student was approved for “remote concurrent instruction.” This program was set to commence on September 8, 2021, and, without a continuing exemption request, the Student was supposed to return to in-person instruction on December 6, 2021. (Ex. 12) The Student was thus stripped of her right to in-person instruction along with related services, which were necessary for the Student to have her disability management needs met through the medically indicated mask exemption. (Ex.s 12 & J)

  • • Stipulated Facts
  • • [The Student] is an REDACTD-old student with a disability who resides in the [District].
  • • [The District] receives federal financial assistance under 20 U.S.C. sections 1411-1419 for the education of school-aged children with disabilities.
  • • For the 2019-20, 2020-21, and 2021-22 school years-under Individualized Education Programs (IEPs) running from November 16, 2019, to November 10, 2020, and from November 11, 2020, to November 10, 2021 [The Student] has been:
  • • classified as a student with multiple disabilities based on the following diagnoses: Pierre-Robin sequence, Ehlers-Danlos syndrome, hyperthyroidism, apnea, congenital heart defect, cleft palate, hip dysplasia, bilateral club feet, gastroesophageal reflux disease, intellectual disability, and mild-to-moderate bilateral hearing loss;
  • • placed in a 12:1+4 classroom at [in a District] specialized school that provides an education for children who are medically fragile;
  • • alternately assessed and entitled to receive Extended School Year (ESY) services; and
  • • entitled to receive the following related services at School [#]: speech-language therapy four times a week; occupational therapy two times a week; physical therapy two times a week; occupational and physical therapy co-treatment once a week; skilled nursing services daily; physical therapy consultations four times a year; vision consultations two times a year; and hearing consultations once a month. (Exhibits 2-3).
  • • On March 18, 2020, [the Student] began receiving all instruction and related services virtually because of a government-mandate due to the COVID-19 pandemic.
  • • All [District] students were instructed virtually from March 18, 2020, through February 1, 2021.
  • • [The Student] continued virtual schooling for the remainder of the 2019-2020 school year; for the 2020 ESY session; and for the 2020-2021 school year, through June 7, 2021.
  • • On April 30, 2021, the School [#REDACTED] nurse received a letter from [the Student’s] [ Doctor] stating that the Student cannot wear a face mask and should be permitted to attend school without wearing one. (Exhibit 8).
  • • On May 12, 2021, the School [#REDACTED] nurse received a second letter from [the Doctor] stating that [the Student] cannot wear a face mask and should be permitted to attend school wearing a face shield. (Exhibit 9).
  • • On July 16, 2021, the School [#REDACTED] nurse received a third, more-detailed, letter from [the Doctor] outlining The Student’s medical conditions and stating that [the Student] cannot wear a face mask and should be permitted to continue attending school wearing a face shield. (Exhibit 10).
  • • [The Student] attended school in-person at School [#REDACTED] from June 7, 2021, to August 13, 2021, wearing a face shield. (Exhibit 11).
  • • On September 10, 2021, the [District] Medical Review Advisory Team advise, [the Parent], [the Student’s] mother, that [the Student] was excluded from school and would receive only virtual instruction and services. (Exhibit 12).
  • • Since September 10, 2021, [The Student] once again has been placed on virtual instruction.
  • • Since September 8, 2021, all [District] students, who are able to consistently wear a face mask, have attended school full-time, in-person, five days per week unless they have requested, and been granted, Medical Leave Instruction. (Ex. I)
  • • Position of the Parties
  • • Parent’s Position The Parents allege that the District failed to implement a mask-exemption for the Student, and therefore failed to provide a FAPE for the Student for the 2019-2020, 2020-2021, and 2021-2022 ESYs. (Ex. A) They claim that the Student was in need of intensive additional services, and an in-person program to reap educational benefit. The inability of the District to enforce the previously accepted mask-exemption (Ex. 11) proved detrimental to the Student’s ability to meaningfully progress and to avoid regression. (Ex.s A & I) The Student’s combination of disabilities2 severely limits her ability to wear a mask and was given multiple notes (Ex.s 8, 9, & 10) by the Doctor, who highly recommended she not be mandated to wear a mask upon reentering the in-person educational setting. (Ex. I-3)

The Parent stated that the Student was denied a FAPE resulting from the denial of mask-exemption (Ex. 12), as the only alternative offered was a remote instruction program which excluded all the additional services needed for the Student to perform activities of daily living (ADL). (Ex. A-3) Additionally, the assistive technologies that made education merely possible in the in-person classroom setting were not provided to the Parent upon notice of remote instruction, and the Parent is untrained and unable to provide the therapeutic services necessary to promote educational benefit for the Student. (Ex. I.5-6)

  • • District’s Position Though the District provided an adequate IEP for the Student, they maintain that even though they were unable to implement the program, resulting from the unprecedented events of COVID, they still provided the Student with the next best option. Without guidance on the issue, the District asserts there was no way they could have provided what was recommended in the IEP program.

2 More specifically, the Student is limited in her mask-wearing ability for the following reasons: Due to her respiratory and sensory disabilities, she is unable and unwilling to wear a mask over her face; Due to her cognitive disabilities, she is unable to understand why she had to wear a mask; and Due to the combination of these disabilities, she is unable to wear a mask and should therefore be exempt from the mask mandate (Ex. I-3)

The District claims that it did the most to the extent possible, at the time and with the information available, to make a reasonable recommendation and program for the Student based on the status of the school district being within a COVID “red zone”. (T. 11)

  • • Scope of the Hearing The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above.

As a result, I have taken jurisdiction of the familiar claims under Article 89 of the New York State Educational Law, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 706 (Section 504 claims) and the Individuals with Disabilities Education Improvement Act of 2004, 20 U.S.C. 1400 et seq. (IDEA). Regarding the 504 claim, there was no stated intention to abandon the claim, but neither was it pursued comprehensively by the Parents. I presume that this claim has been plead to exhaust administrative remedies. I therefore set this aside.

The Judge in Doe v. Franklin Square Union Free Sch. Dist., 2:21-5012-FB-SIL, (EDNY, October 26, 2021), 121 LRP 35978, offers some candid insights regarding similar facts to our case.3 Judge

Block writes the following:

The web that has entangled our nation in dealing with the myriad challenges spawned by the COVID-19 pandemic has ensnared our children. Now that the new school year has begun, the debate rages as to whether they should be required to be masked while attending school. Our country is being challenged to rationally decide how to best protect the health of our children in uncharted waters that make all of us medical guinea pigs. Indeed, there is no conclusive study as to either the short-term or long-term effects that mask wearing could have on children.

Later in his decision he has captured my thoughts as I have reviewed this situation:

New York's Mask Mandate, applicable to P-12 school children, is a convoluted mix of the Commissioner's regulation; the Commissioner's implementing "determination" embracing "[f]indings of necessity," which adopt as "requirements" recommendations of the Centers for Disease Control and Prevention ("CDC"); a Department of Health "interim" guidance document "for classroom instruction;" and "guidelines" which the State's Education Department has promulgated.

Judge Block also points to the practical problems of implementation:

The practical upshot of the Commissioner's regulation, its cryptic adoption of the CDC's recommendations and its Prevention Strategies, the Health Department's guidance, and the Education Department's guidelines is that the school districts and their administrators do not know what precisely they can or cannot do to implement the Mask Mandate. For instance, there is no guidance as to how a school district is to determine if wearing a mask cannot be medically tolerated, either indoors or outdoors,...

  • • Issue: Did the District Present a Prima Facie Case for a FAPE with Respect to the Three Years in Question?
  • • Legal Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “... offer a cogent and responsive explanation for their decisions...” Endrew F., Supra.

In evaluating whether the District complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either: 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

The United States Supreme Court has made it clear that the Act’s procedural guarantees are not mere procedural hoops through which Congress wanted state and local educational agencies to jump. See Brandon R.R. 874 F. 2d at 1041, Walczak v. Florida Union Free School Dist., 142 F.3d 119, 122 (2d Cir. 1998). Rather, the formality of the Act’s procedures is itself a safeguard against arbitrary or erroneous decision making. The United States Supreme Court has articulated that material procedural violations, in and of themselves, often can constitute failures to provide a FAPE. In fact, a single material violation of the Act’s procedural guarantees is a sufficient ground for holding that a school district failed to provide a FAPE. Id.

For this reason, the Supreme Court held in Board of Education v. Rowley, 458 U.S. 176 (1982), that the very first inquiry in a case of this type is to determine whether or not there have been any material procedural violations. As the Rowley Court held, “… the importance Congress attached to these procedural safeguards cannot be gainsaid.” 458 U.S. 176.

  • • Analysis

The Parent asserts that failure to implement the respective IEPs for the 2019-2020, 2020-2021, and 2021-2022 SY’s resulted in a denial of FAPE. The complaint notice identifies the circumstances of the Student and the scope and specific problems that the Student has been facing throughout the pandemic. (Ex 1) The District did not defend the allegation of failure to implement the recommended programs or placements.

An anonymous Medical Review Advisory Team sent a letter to the Parent dated “September 2021” in which they informed the Parent the Student would be attending school remotely. (Ex. 12) The letter did not state whether the CSE was informed of this decision, nor did the letter indicate the basis of the action, the rationale for the decision, and did not notify the Parents of an option to appeal or challenge the decision. (Ex. 12) In fact, there is nothing in this record to indicate that the CSE ever convened in September of 2021. I am left to believe that the actions changing the Student’s placement were solely the result of the CSE’s apparent delegate, the anonymous Medical Review Advisory Team. Such delegation is in violation of the IDEA. (Ex. 12)

Procedurally, the IDEA requires a CSE to include the following members: the parents; one regular education teacher of the student (if the student was, or may be, participating in the regular education environment); one special education teacher of the student or, where appropriate, not less than one special education provider of the student; a district representative; an individual capable of interpreting instructional implications of evaluation results; at the discretion of the parent or district, other persons having knowledge or special expertise regarding the student; and if appropriate, the student (see 20 U.S.C. § 1414[d][1][B]; see 34 CFR 300.321[a]; 8 NYCRR 200.3[a][1]). Additionally, as relevant here, State regulation requires, in pertinent part, that a CSE must include "not less than one special education teacher of the student, or, if appropriate, not less than one special education provider of the student" (8 NYCRR 200.3[a][1]). SRO 21-177 In this case, there was no meeting at all. This fact adversely impacted the Parent’s participation and the Student’s rights. Take for example the Student’s most recent IEP that recommended the Student receive occupational therapy and physical therapy across school settings. This cannot be provided for in a virtual environment. (Ex. 3-10) Likewise, there is no documentation regarding the justification for eliminating the “‘[Daily Skilled Nurse]’ for ‘water flush’ and ‘oral suctioning.’” Yet neither the District, the CSE, nor the Medical Review Advisory Team have documented any rationale to address these types of issues, of which there are many for this Student.

Since the Medical Review Advisory Team was anonymous (Ex. 12), the basis of the decision to move the Student to virtual instruction is unknown. Simply said there were multiple procedural flaws in the decision to place the Student in a virtual educational program resulting in the denial of a FAPE. The District must do better in documenting the efforts that impact the students protected by the mandates of IDEA.

At a minimum:

In developing the recommendations for a student's IEP, the CSE must consider the results of the initial or most recent evaluation; the student's strengths; the concerns of the parents for enhancing the education of their child; the academic, developmental and functional needs of the student, including, as appropriate, the student's performance on any general State or district-wide assessments, as well as any special factors as set forth in federal and State regulations (34 CFR 300.324[a]; 8 NYCRR 200.4[d][2]). SRO 21-203 The failure to convene a CSE and to follow the procedures of the IDEA frustrates the record in this case as it will frustrate any review. Most significantly, this procedural misstep has significantly impeded the Parent’s opportunity to participate in the decision-making process regarding the provision of a FAPE and caused a deprivation of educational benefits for the Student.

  • • Conclusion I rule for the Parent on issue of the District not providing a FAPE for the 2019-2020, 2020-2021, and 2021-2022 SYs. In this case the District rested without introducing evidence and conceded it failed to offer the Student a FAPE for the school years at issue. Factual allegations in the DPC for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO No. 14-179 (same); SRO No. 01-044 (same). See also, L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016). I shall turn to the issue of compensatory education.
  • • Compensatory Education
  • • Make Up Services Are Warranted
  • • Legal Standard 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]"]; 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]).

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 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"]).

  • • Analysis

Regarding compensatory education there are several components. The lost services until the filing, and the lost services since the filing. There is also a prospective remedy; implement the existing IEP. If the District is unwilling or incapable of executing this order, the Parent may find providers to implement a comparable program at District expense. In any event the CSE shall reconvene and develop strategies to implement a program with components in line with the November 2020 IEP. (Ex. 3)

  • • March 18, 2020, until the filing of the Complaint Notice September 14, 2021 Based on the CSE recommendations from the two existing IEPs, together with the unrebutted testimony of the Parent (Ex. H), the Student must be reimbursed for hours lost to remote instruction, commencing on the “Remote Learning Order” dated March 18, 2020, excluding the summer session of 2021.

Since March 2020, the Student has not been provided 315 school days of in-person instruction, including 60 school days during 2019-2020, 30 school days during 2020-2021 ESY, 165 school days during 2020-2021, and 60 school days during 2021-2022. (Ex. J) The Student’s IEP recommended four (4) half-hour speech-language sessions every 6 days (equating to 4/6 x 315 days x 0.5hrs/session, totaling 105 hours), two (2) half-hour occupational therapy and two (2) half-hour physical therapy sessions every 6 days (equating to 2/6 x 315 days x 0.5hrs/session, totaling

53 hours), one (1) half-hour physical-and-occupational-therapy co-treatment every 6 days (equating to 1/6 x 315 days x 05. hours/session, totaling 26 hours), and four-and-a-half (4.5) hours of specialized instruction per day (equating to 4.5 hours x 315 days, totaling 1418 hours). (Ex. 2)

In addition to compensatory services for academic and additional services, the Student also missed compensatory consultations due to the “Remote Learning Order”, including the following: 6 in-person PT Consultations, 3 in-person Vision Consultations, and 18 in-person Hearing Consultations (Ex. J.25-26)

  • • Period From September 14, 2021, until December 15, 2021, the Date of This Order Based on the CSE recommendations from the November 2020 IEP, the Student must be reimbursed for hours lost to remote instruction. Since September 2021, the Student has not been able to receive the following services: four (4) half-hour speech-language sessions every 6 days (equating to 4/6 x 62 days x 0.5hrs/session, totaling 20.5 hours) two (2) half-hour occupational therapy sessions every 6 days (2/6 x 62 days x 0.5hrs/session, totaling 10.5 hours), two (2) half hour physical therapy sessions every 6 days (2/6 x 62 days x 0.5hrs/session, totaling 10.5 hours), and one (1) occupational and physical therapy co-treatment session every 6 days (1/6 x 62 days x 0.5hrs/session, totaling 5 hours), and four-and-a-half (4.5) hours of specialized instruction per day (equating to 4.5 hours x 62 days, totaling 279 hours). (Ex. 3) I recognize that this order overlaps with the provisions of the Pendency Order in this case (Ex. L). That Pendency Order was published on December 14, 2021, but was effective as of September 14, 2021. The orders will necessarily overlap but as a practical matter the pendency program and services cannot be implemented in the abstract and to provide those services as “additional services” in this order is warranted.
  • • Prospective Actions to be Taken The District shall immediately take proactive steps to recruit and train personnel who have the ability and willingness to implement the Student’s November 2020 IEP, (Ex. 3) ideally at District school #REDACTED, but if that cannot be accomplished immediately, then the program shall be delivered at the Student’s home.
  • • Remand to CSE to Properly Evaluate and Document Further Actions The District shall reconvene a CSE meeting by January 15, 2021with the express purpose to develop strategies to implement a program with components in line with the November 2020 IEP. (Ex. 3) I can suggest that one document that could be considered is a brochure developed by another school in New York State that has developed a successful protocol for Mask mandate exemptions and how to layer the interventions in line with the guidance documents from the federal, state and local authorities. See for example, Ex. 21 in this record.
  • • Conclusion / Rationale for Award Neither the District nor the Parent disagreed with the recommended program from the CSE, and due to the inability for the District to implement the program on the two relevant IEPs, I find it equitable to award the Student with services that were missed and will be missed over the course of the remote instruction.

Accordingly, it is hereby

It is therefore ORDERED

  • • The District shall create a bank4 of additional services relative to the time period between March 18, 2020, and September 14, 2021:
  • • 12:1:3+1 In-Person Special Education Class, for 4.5 hours a day in a six-day cycle;
  • • One hundred and five (105) hours of SLT;
  • • 53 hours of OT;
  • • 53 hours of PT;
  • • 26 hours of PT/OT Co-Treatment;
  • • 1,418 hours of Specialized Instruction;
  • • 6 in-person PT Consultations;
  • • 3 in-person Vision Consultations; and
  • • 18 in-person Hearing Consultations
  • • The District shall create a second bank of additional services relative to the time period between September 14, 2021, and December 15, 2021:
  • • 20.5 hours of SLT
  • • 10.5 hours of OT;
  • • 10.5 hours of PT;
  • • 5 hours of PT/OT Co-Treatment; and
  • • 279 hours of Specialized Instruction
  • • The District shall immediately take proactive steps to recruit and train personnel who have the ability and willingness to implement the Student’s November 2020 IEP, (Ex. 3)
  • • If the District is unwilling or incapable of executing this order within the next 14 days, the Parent may find providers to implement a comparable program at District expense.
  • • This matter is remanded to the CSE for the specific purpose express purpose to develop strategies to implement a program with components in line with the November 2020 IEP. (Ex. 3) This meeting shall take place on or before January 15, 2022.

4 The District must pay provider(s) of the Parents’ choosing at a market rate, at the time the services are provided, to be determined by the “implementation unit” of the District, in consultation with the Parents and/or their provider(s).

Compensatory hours shall be utilized within five (5) years of the date of this order, or they shall be forfeited. The Parent shall be reimbursed, indemnified, and made whole for any actual or accrued costs associated with provision of education and services to the child during the time in question, including but not limited to reimbursement for transportation, related services, intensive PT, and evaluations; she shall be permitted to submit receipts to the Implementation Unit upon request.

Date: December 15, 2021

Martin J. Kehoe III, Esq.

Impartial Hearing Officer

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.

3 Doe v. Franklin Square Union Free Sch. Dist., supra entails a legal analysis focusing on a substantive due process claim, not an IDEA claim.