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STATE EDUCATION DEPARTMENT OF NEW YORK
X In the Matter of a Complaint Pursuant to Part 200 of the Case No.: 216402
Regulations of the Commissioner of Education Regarding, STUDENT [1], a minor, by and through his/her Parent(s),
Petitioners
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION,
Respondent. X
FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION
INTRODUCTION AND PROCEDURAL BACKGROUND
This matter came before the hearing officer by way of a due process complaint filed by the Parent on September 9, 2021. No written response was provided by the Respondent, the New York City Department of Education (hereinafter "DOE", "District" or "Respondent"). A hearing was held regarding this matter on May 19, 2022, September 14, 2022, December 12, 2022, March 21, 2023, and May 8, 2023. It was a closed hearing and the Petitioners were represented by [REDACTED]. Respondent was represented by [REDACTED], District Representative. The record was closed on June 2, 2023.
In the due process complaint, the Parent requested tuition reimbursement for a unilateral placement at the [REDACTED] ("[REDACTED]") covering the 2021-2022 school year. Parent also requested compensatory services and education.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter "IDEA"), 20 U.S.C. § 1400 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. § Part 200.
BACKGROUND
Student is a [REDACTED]-year-old child mandated for a 12-month school year who is classified as a Preschool Student with a Disability. The circumstances which gave rise to the current due process complaint involved the alleged failure of the CSE to review the Student's current IEP, the CSE's failure to request any updated evaluations for the Student and the CSE's failure to recommend an appropriate program for the Student for the 2021-2022 school year.
ISSUES
1) Whether Student was denied a FAPE for the 2021-2022 school years by the failure of the CSE to request updated evaluations for the Student, by failing to develop an appropriate IEP for the Student for the 2021-2022 school year and/or by failing to recommend or provide Student an appropriate placement.
2) Whether the Parent's unilateral placement(s) of the Student for the 2021-2022 school year was appropriate to the Student's needs.
3) Whether the equities favor reimbursement.
4) Whether the Student is entitled to compensatory education.
Petitioner requests relief in the form of an order directing the District to fund the tuition at [REDACTED] for the 2021-2022 school year. Parent also requested compensatory education and services.
EVIDENCE SUBMITTED AT HEARINGS
DISTRICT'S CASE
The District introduced no exhibits into evidence.
PARENT'S CASE
The Parent introduced eighteen (18) exhibits into evidence which included the following:
P-A: DPC
P-B: IEP
P-C: Waiver to Amend IEP
P-D: Amended Order on Pendency
P-E: Stipulation of Agreement and Settlement
P-F: WITHDRAWN
P-G: WITHDRAWN
P-H: Mid-Year SETSS/ABA Progress Report
P-I: Neuropsychological Report
P-J: OT Report
P-K: Resume of Provider
P-L: Summer 2021 ABA Data and Notes
P-M: FBA
P-N: SEIT Progress Report
P-O: ABA Progress Report
P-P: Enrollment Contract
P-Q: Proof of Payment
P-R: Psychological Evaluation
P-S: Letter Re ABA Hours
P-T: Emails
WITNESSES
The District presented no witnesses.
The Parent presented two witnesses, [REDACTED], BCBA, [REDACTED], SETSS/ABA Provider and both of the Parents. The District was given the opportunity to crossexamine the witnesses.
FINDINGS OF FACT
After considering all of the evidence, as well as arguments of both sides, this Hearing Officers Findings of Fact are as follows: 1) The Student was a [REDACTED]-year-old child entering the 2021-2022 school year.[2] The Student is classified as a Preschool Student with a Disability. [3]
2) The only IEP in the record before me is dated May 31, 2018.[4] Nonetheless, the Student underwent a neuropsychological evaluation on or about January 7, 2020.
A copy of the report generated from that evaluation was admitted into evidence. [5]
The neurologist diagnosed the Student with ASD, Level I, without accompanying intellectual impairment.[6] Based upon this evaluation, the neuropsychologist made several recommendations including, but not limited to, a small, structured and supportive mainstream classroom, ABA with a BCBA (both full time in school and two hours per day at home), parent training, intensive speech and language therapy, occupational therapy, counseling services, as well as remedial tutoring. [7]
3) To the extent that the District did not develop an IEP prior to the 2021-2022 school year, it is presumed that the District did not either consider the recommendations of the neuropsychologist or conduct its own evaluations which would challenge or contradict these recommendations. Moreover, while the District Representative indicated that an IEP meeting was held in April 2020, there is no evidence in the record to suggest that an IEP was developed as a result of that meeting. [8]
4) Despite the District's appearance in this matter, on May 17, 2022, the District Representative indicated that the District would not be presenting a Prong I case. [9]
In addition, despite the fact that this case took over a year to finally come to a resolution, for a variety of different reasons, the District never requested an opportunity to present either documentary evidence or witnesses. As a result, I am constrained to find that the District has conceded that it did not conduct an appropriate review, that it failed to conduct relevant evaluations, failed to develop an appropriate IEP, and/or did not offer the Student an appropriate placement for the 2021-2022 school year. As a result, there is no question that the Student was denied a FAPE for the 2021-2022 school year.
5) On November 3, 2021, the District sent the Parent's counsel a letter inquiring as to whether the Parent had submitted a ten-day notice regarding the 2021-2022 school year.[10] That same day, Parent's counsel responded indicating that in light of the parties' prior litigation and the parties' stipulation of agreement, as well as the DPC, that no formal ten-day notice was necessary.[11] The District responded the following day indicating that it had received Parent's counsel's email.[12] Under the circumstances, I find that the Parent properly notified the District of their intention to unilaterally place the Student at [REDACTED] for the 2021-2022 school year. Moreover, the District made no objections throughout the course of the hearing regarding the absence of a formal ten-day notice.
6) [REDACTED], BCBA, testified on behalf of the Parent.[13] Ms. [REDACTED] is a certified BCBA provider employed by [REDACTED]. She has been working with the Student since February 2020 on a 1:1 basis providing ABA services while the Student was attending a different school. She continued to service her remotely until June 2020. She worked with the Student about 20 hours a week. In person services resumed in April 2021 with parent training, and in June 2021 she resumed with direct services with the Student.
7) According to Ms. [REDACTED], the parent training involved discussing the behaviors the Student was struggling with and then discussed different strategies to address them. When she resumed with the Student it was to address maladaptive behavior and social issues, working three days a week for 7 hours a day. The other two days another provider worked with her. The Student also had SEIT services. The services were provided at a day camp. During the summer, the Student received 35 hours per week of ABA services and 10 hours per week of SEITS. Throughout the 2021-2022 school year, they provided 1:1 ABA services and/or supervision, as well as SEIT services.
8) Ms. [REDACTED] observed the Student in school during the 2021-2022 school year at [REDACTED] as part of her supervisory role. She was in a class of 12 students. There were generally 1 or 2 teachers present. It was a dual language 2nd grade class ([REDACTED]).
9) When Ms. [REDACTED] first saw the Student at her prior school, the Student would have severe tantrums, was rigid, and had a difficult time functioning in a classroom setting. The Student kicked, screamed, threw things, and destroyed property. Her communication was also rigid and she had difficulty expressing what she needed. Her receptive communication was also weak and she did not always respond to things that people said to her. She did not have good toileting skills. She had a very limited ability to focus and needed constant redirection.
Her pre-reading skills were within normal range or slightly below. Writing was a huge struggle, and she was very rigid if it did not come out the way she wanted, she would get extremely frustrated. As far as math, she also struggled. Her behavior at home was terrible. She could not handle any types of demands and engaged in a lot of tantrums, rigidities, stealing. Things had to go her way or she would tantrum.
10) By June 2021, her behaviors in school had improved, but the lapse in services caused a regression. As a result, the witness worked on the Student's socialization, because the Student had a hard time joining a group as she was very inflexible. She wanted to interact with her peers but did not know how to. For example, she had a lot of difficulty sharing. The Student's expressive language was also compromised to the extent that she could not articulate what she wanted to do.
11) At [REDACTED], the Student was always in a classroom with no more than 12 students. According to Ms. [REDACTED], the FBA reflects that the Student's aggressive and silly behaviors decreased significantly from the time that the ABA services resumed in June 2021. [14]
12) The Student is only able to engage in flexible thinking 50% of the time but she is improving. The Student also had problem solving frustration because the Student did not know to look to her peers for guidance and also acts out (i.e., tantrums, eloping, work avoidance, calling out, socially inappropriate behavior with peers) when she cannot solve small or large problems. This behavior improved significantly but was not completely resolved. The Student is also sensory seeking so using tools like fidgets helps her control that behavior. During the 2021-2022 school year, the Student still did this intermittently but it did resolve itself significantly. Post-tantrum it would take up to an hour at the outset of the school year to get the Student to re-focus, so they focused a lot of energy on reducing this time. The Student improved significantly by the end of the school year.
13) Student tends to model poor behavior rather than good behavior of her peers. During the 2021-2022 school year, Ms. [REDACTED] was still working with the Student and providing training to the family to help reinforce the skills she learns in school and to identify causes of challenging behavior.
14) Ms. [REDACTED] believes that the Student made progress during the 2021-2022 school year in terms of being able to answer questions, focus, and with her attention. In addition, her social skills increased significantly. At the outset of the school year, she was not able to read social cues and did not know how to join groups, initiate contacts with peers. By the end of the year, she was able to read the room and adjust her behavior to meet the mood of the room which Ms. [REDACTED] regarded as a "huge skill."
15) According to Ms. [REDACTED], the Student's reading and writing skills are on grade level. Math continues to be a struggle – the Student has actually regressed in this area, particularly with math word problems which would result in outbursts/tantrums. Regular numerical problems are less problematic. She gets frustrated because she cannot keep up with her peers.
16) Toileting was a big problem for the Student during the summer because the Student refused to use a public bathroom. They had to ease her into it. But she had tantrums because of it. By the end of the 2021-2022 school year the Student was able to use the bathroom independently. The Student's dressing skills also needed some assistance – organizing her clothes – and the Student had some rigidity about certain things. Hygiene and eating skills are fine other than a strong obsession with sweets.
17) Ms. [REDACTED] indicated that she believes that the Student needed to be in a smaller classroom setting with typically developing peers because she needs role models and as much individual attention as possible. This is consistent with the recommendations of the neuropsychologist. [15]
18) [REDACTED] also testified on behalf of the Parent and worked with the Student as a SEITS/ABA provider.[16] She worked with her in her classroom in 2021-2022 school year. There were sixteen children in the classroom with one head teacher.
School started at 8:45 a.m. and ended at 4:00 p.m. Ms. [REDACTED] described the Student's school day in detail and the Student's various challenges with accessing her education and interacting with her peers. Ms. [REDACTED]'s role was to help the Student follow directions, and help her throughout the day accommodate transition in a push-in and pull-out fashion.
19) Ms. [REDACTED] would push out of the classroom when the Student would tantrum. In the beginning of the year, the Student was instantaneously triggered into tantrums when anything did not go her way. She would break pencils, leave the classroom, etc. When things were difficult, she would also tantrum. As to her social skills, they varied – the Student was described as emotional roller coaster.
Based on Ms. [REDACTED]'s observations, she felt that some kids were scared of the Student because she cried a lot. However, one friend stuck with her (from the neighborhood) and that really helped the Student tremendously.
20) According to Ms. [REDACTED], the Student learned quickly but she needed to really listen. She also has great receptive language. Unfortunately, the Student's frequent tantrums interfered with her ability to learn. Over the course of the 2021-2022 school year, the Student improved significantly with regard to transitioning.
21) Student is very "OCD" with her writing. She insists it needs to be perfectly neat.
22) According to Ms. [REDACTED], the Student had a fear of going to the bathroom. She would go for half an hour. She was very anxious and had evidence of constipation. Toward the end of the 2021-2022 school year, however, the Student was able to relax and was able to use the bathroom. Ms. [REDACTED] would walk with the Student to the bathroom and reassure her.
23) At [REDACTED], the class would read a bible and the purpose of that is to study history, not religion.
24) The Parent also testified at the hearing of this matter.[17] According to the Parent, the Student began attending [REDACTED] at their camp as of July 2021. In September 2021, she went to [REDACTED] full time as a student. [REDACTED] offered the Student a class of 12 students for the Student. The Student had a push in ABA provider for the entire 2021-2022 school year.
25) The Parent visited [REDACTED] several times during the year and spoke to the teachers regularly to see how the Student was doing and what the Parent could do to help reinforce the skills she was learning in school. During the school year the Student's behavioral progress was up and down. In the beginning of the year it was "horrible." However, by June 2022, the Parent felt the Student was doing "much better" and that she had come "a long way". During the 2021-2022 school year, in the beginning of the year, the Student had poor social skills, she was very "literal," she struggled to engage with her peers. She was also very inflexible. By June 2022, her social skills had improved, she was collaborative, cried less, was less literal, and overall, was doing much better.
26) Over the course of the 2021-2022 school year, the Student's math skills suffered as the content got more complicated and incorporated word problems. The Student did not progress much during the course of the school year in this area. However, with reading, the Student made progress but her comprehension was still a challenge. Her writing also improved although grammar remained a challenge.
27) According to the Parent, the Student's tantrums were reduced by the end of school year, and she was more aware of the mood of the room.
28) The SETSS provider also worked on the Student's flexibility, breaking down assignments, and highlighting the important aspects of each assignment.
29) According to the Parent, during the 2021-2022 school year, the Student struggled mightily with transitions away from her set routine, but improved over the course of the year.
30) While the Parent did not submit any documentation that specifically addressed the program at [REDACTED], it was clear from the testimonial evidence provided that [REDACTED] provided an appropriate program for the Student when coupled with the support of both Ms. [REDACTED] and Ms. [REDACTED].
Their testimony, as well as the Parent's, further demonstrated that [REDACTED] provided a small classroom setting where the Student could receive ample individualized attention and receive all of her related services. With the support of the SETSS/ABA providers, [REDACTED] offered the type of classroom setting that was specifically recommended by the neuropsychologist and the FBA. [18]
31) For the 2021-2022 school year, the Parent submitted documentation to demonstrate that the Student made progress at [REDACTED]. Specifically, the progress report submitted by Ms. [REDACTED], as well as her testimony and that of the Parent's, amply demonstrated that the Student made significant progress throughout the course of the 2021-2022 school year.[19] This evidence further demonstrated both the need and efficacy of both [REDACTED] and the SETSS/ABA services provided. The District did not meaningfully challenge any of this evidence. [20]
32) For the 2021-2022 school year, the Parent provided documentation that verified that the Parent was contractually obligated to pay the tuition, inclusive of related services, at [REDACTED] which totaled ten thousand two hundred twenty-five dollars ($10,225.00). [21]
33) As to the Student's related services, the Student's last IEP recommended that the Student receive SETSS services, 1:1, 10 hours per week; Occupational Therapy, 1:1, twice per week for 45 minutes; Speech and Language Therapy, 1:1, twice per week for 45 minutes; Counseling Services, 1:1, twice per week for 30 minutes for the entire twelve-month school year.[22] The Parent is in agreement with these related services.
34) As to ABA services, in accordance with the recommendation of the BCBA, which the District did not challenge, the Parent is seeking 23 hours per week of push-in 1:1 ABA services during the ten month 2021-2022 school year and 30 hours per week of 1:1 ABA services during the eight weeks of summer (ESY).
35) The District presented no evidence that they provided any of the above related services or that the Student was not entitled to these services.
36) As to compensatory services, Parent seeks an order for a bank of 162 hours of 1:1 ABA services that were missed during the summer of 2021; 823 hours of 1:1 ABA services that were missed during the 10 month 2021-2022 school year; 80 hours of ABA supervision that were missed during the 2021-2022 school year; and 40 hours of parent counseling and training that were missed during the 2021-2022 school year.[23] Once again, the District offered no evidence or argument to dispute these claims.
CONCLUSIONS OF LAW AND DISCUSSION
Denial of FAPE
The purpose of the IDEA is "to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs." Bd. Of Educ. V. Rowley, 458 U.S. 176, 179-91 (1982). Implicit in the congressional purpose of providing access to a free and appropriate public education (hereinafter "FAPE") is the requirement that the education to which access is provided be sufficient to confer some educational benefit upon the handicap child. (Id.)
Pursuant to 20 U.S.C. §1401(9) and 34 C.F.R. §300.17 FAPE is defined as follows:
Special Education and related services that are provided at public expense under public supervision and direction and without charge; meet the standards of the SEA… include an appropriate preschool, elementary school, or secondary school education in the State involved; and are provided in conformity with the individualized education program (IEP).
In deciding whether the Respondent provided a student with a FAPE, the inquiry is typically: (1) whether the Respondent complied with the procedures set forth in IDEA; and (2) whether the student's IEP is reasonably calculated to enable the student to receive educational benefit (Rowley, supra.). Under the second prong, a school district need not maximize the potential of child but must open the door of public education in a meaningful way, and the IEP must provide the opportunity for more than only a "trivial advancement" P. v. Newington Bd. Of Educ., 546 F.3d. 111 (2nd Cir. 2008).
The IEP is "the centerpiece of the statute's education delivery system for disabled children" Honig v. Doe, 484 U.S. 305, 311 (1988). An appropriate educational program begins with an IEP that accurately reflects the results of evaluations to identify the student's needs, establishes annual goals related to those needs, and provides appropriate specialized instruction and related services. See 34 C.F.R. §300.320 (a). For an IEP to be "reasonably calculated to enable the child to receive educational benefits," it must be "likely to produce progress, not regression" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
Additionally, each public agency must ensure that, as soon as possible following the development of an IEP, special education and related services are made available to the child in accordance with the child's IEP. In order to implement the IEP, a team that includes the child's parents determines where the child should be placed based on the child's IEP. Thus, the placement should not dictate the IEP but rather the IEP determines whether a placement is appropriate. Rourke v. District of Columbia, 460 F.Supp.2d 32, 44 (D.D.C. 2006).
The DOE must ensure that the IEP team reviews a student's IEP periodically, but not less than annually, to determine whether the annual goals for the child are being achieved. Moreover, the DOE must ensure that the IEP team revises the IEP, as appropriate, to address any lack of expected progress toward the annual goals; and the results of any reevaluation or information about the child provided to, or by, the parents. Additionally, if the parent obtains an independent educational evaluation ("IEE") at public expense, or shares with the public agency an evaluation obtained at private expense, the school district must consider the results of the evaluation, if it meets agency criteria, in any decision made with respect to the provision of FAPE to the child. The IDEA mandates that an IEP be based on the results of the most recent evaluation of a student.
In determining the appropriate placement for a child, preference is given to the least restrictive environment and the appropriate schools nearest the child's home (Id.). The IDEA requires that unless the IEP of a child with a disability requires some other arrangement, the child is to be educated in the school that he or she would attend if the student was otherwise not disabled. In selecting the least restrictive environment, consideration is given to any potential harmful effect on the child or on the quality of the services that he or she needs. A child with a disability is not removed from education in age-appropriate regular classrooms solely because of needed modifications in the general education curriculum. See 34 C.F.R. § 300.116.
When developing the IEP, the District will have evaluations of the child, as a procedural safeguard the parents are entitled, as a matter of Law, an independent education evaluation (IEE) at public expense. 34 CFR § 300.502
Where a school system fails to provide special education or related services to a student with a disability, the student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005). An award of compensatory education "should aim to place the disabled children in the same position they would have occupied but for the school district's violations of IDEA" (Id.). Compensatory education is a remedy for "past deficiencies" therefore a finding as to whether a student was "denied a FAPE in the relevant time period is a necessary prerequisite to a compensatory education award." Peak v. District of Columbia, 526 F. Supp. 2d 32 (D.C. Cir. 2007).
Pursuant to New York Education LAW § 4401(c)(1) the DOE shall have the burden of proof, the burden of persuasion, and the burden of production in impartial hearings except for instances where the parent is seeking tuition reimbursement for a unilateral parental placement and in those cases the parent shall have the burden of persuasion and the burden of production as to the appropriateness of the placement. The burden of proof in matters such as this shall only be met upon a fair preponderance of the evidence. The preponderance of the evidence standard requires that the trier of fact to find that the existence of a fact is more probable than its nonexistence. Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).
Unlike other standards of proof, the preponderance-of-evidence standard allows both parties to share the risk of error in a roughly equal fashion, except that when the evidence is evenly balanced, the party with the burden of persuasion must lose. Director, Office of Worker's Compensation Programs v. Greenwich Collieries, 512 U.S. 267, 281 (1994).
In the instant matter, the Respondent presented neither documentary evidence nor witnesses. In the absence of a witness who could defend the IEPs developed for the Student, and, more importantly, explain how the proposed placement was appropriate for the Student, there is insufficient information in this record to conclude that the District provided the Student with a FAPE for the 2021-2022 school year. As a result, there can be little question that the Student was denied a FAPE for the 2021-2022 school year.
Moreover, in assessing the propriety of the family's effort to rectify the district's failing, the decision-maker must take into account the limited range of options available to the family, the degree to which they possessed technical/professional educational expertise, the urgency of the placement timetable, and their natural desire to maximize the student's potential. The family is under no obligation to seek out a program that skirts just barely above the Endrew minimum, and the district that comes to the table with unclean hands is not in a strong position to argue that, notwithstanding its own derogation of duty, the family should be barred from seeking to remedy the deprivation of FAPE because the program they initiated was too good. One of the fundamental tenets of equity jurisdiction is that 'he that hath committed iniquity shall not have equity.'
Reimbursement for Unilateral Placement
A court or a hearing officer may order a district to reimburse the parents of a student with a disability for the student's unilateral private placement if the district failed to make a FAPE available in a timely manner and the unilateral private placement is appropriate, 34 CFR 300, 148 (c); Florence County Sch. Dist. Four v. Carter, 20 IDELR 532 (US 1993). Parents seeking tuition reimbursement as a remedy cannot simply speculate that the assigned school will fail to provide one or more services the student needs to receive FAPE; they must show that the school is not capable of implementing the student's IEP, M.O. and G.O. v. New York City Department of Education, 65 IDELR 283 (2nd Cir. 2015); Y.F. v. New York City Dept. of Educ., 68 IDELR 92 (2d Cir. 2016, unpublished).
It is true that a unilateral private placement does not need to meet state standards for public education programs to be "appropriate" for reimbursement services, 34 CFR 200.148 (c). However, a unilateral private placement is appropriate for reimbursement purposes if it offers instruction that is specially designed to meet the student's unique needs as well as the support services the student requires to benefit from that instruction, M.N. v. State of Hawaii, Dept. of Educ., 60 IELR 181 (9th Cir. 2013, unpublished); Ward v. Board of Education of the Enlarged City Sch. Dist. Of Middletown, NY , 63 IDELR 121 (2d Cir. 2014, unpublished).
In the instant matter, the District did not meaningfully contest the appropriateness of the unilateral placement. Neither did the District contest the appropriateness of the ABA services recommended by the neuropsychologist or the BCBA. Neither did the District contest the appropriateness of the balance of related services to which the District found the Student eligible for in their last IEP. Moreover, there was a clear demonstration that the unilateral placement chosen by the Parent was appropriate. Specifically, the evidence demonstrated that [REDACTED], in collaboration with the ABA, SETSS and other related service providers, engaged the Student in classes, programs and related services which were specifically tailored to address Student's needs and challenges as recommended by the neuropsychologist and the FBA. The Student was provided with numerous accommodations and afforded the opportunity to engage in both individual and small group instruction, and related services providers that collaborated with the Student's classroom teacher. Over the course of the 2021-2022 school years, Student demonstrated consistent progress across a broad array of subjects and areas of disability and continued to show marked personal growth.
It is for this reason that I find that the District is directed to fund the cost of the Student's 2021-2022 placement at [REDACTED] in the amount of $10,225.00.
Compensatory Education/Services
Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is 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, Reid v. District of Columbia, 401 F.3d 516, 518 (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 …mold each decree to the necessities of the particular case"). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child's loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).
Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See, Newington, 546 F.3d at 123 ("[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]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, 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); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and accordingly, 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, supra.
Here, the District did not present any witnesses that demonstrated that they had provided the Student with the services to which she was entitled.
Equities
Pursuant to 20 U.S.C.A. § 1412(a)(10)(C)(iii), the cost of reimbursement described in clause (ii) may be reduced or denied if:
(I)(aa) at the most recent IEP meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide a free appropriate public education to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or
(bb) 10 business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in item (aa); (II) if, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in section 1415(b)(3) of this title, of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for such evaluation; or
(III) upon a judicial finding of unreasonableness with respect to actions taken by the parents.
As a general rule, a school district may not argue that the "equities are in its favor once it has failed to provide a FAPE or concedes that it has not." N.R. v. Department of Education of the City of New York, 2009 WL 874061 (S.D.N.Y. 2009). However, where the record demonstrates that the Parent failed to cooperate with the CSE or actively took steps to thwart the District's ability to develop an appropriate IEP for the Student, it is appropriate for the impartial hearing officer to either reduce or deny the Parent's request for tuition reimbursement. Neske v. Porter, 2022 WL 3290561 (S.D.N.Y. 2022). In Neske, the Court held,
In determining whether parents have acted unreasonably, courts consider factors including: whether the parents cooperated with the CSE (e.g., providing reports, attending the meeting, participating in the meeting); whether the parents timely notified the school district of their intent to place their child in a private school; whether the parents visited the DOE's proposed placement; whether the parents intended to genuinely consider a proposed public placement, or whether they would have kept their child in private school regardless of the proposed public placement; whether the parents or the DOE unreasonably delayed anything; and the appropriateness of the DOE's conduct.
Id., at 3-4 (citing G.B. v. New York City Dept. of Educ., 145 F.Supp.3d 230, 257 (S.D.N.Y. 2015).
In addition, even where the District fails to present a Prong I case, and even when it does not contest the appropriateness of the unilateral placement, the courts have held that it remains Parent's burden to demonstrate that the equities are in their favor. R.E. v. New York City Dept. of Educ., 694 F.3d 167, 185 (2nd Cir. 2012); see also Donohue v. New York City Dept. of Educ., 2021 WL 4481344 (S.D.N.Y. 2021).
In the instant matter, the District offered no evidence on the subject of the equities. Moreover, the evidence is clear that the Parent cooperated with all of the District's efforts to develop an IEP for the Student. I therefore find that there are, in fact, no equitable considerations which would mitigate against full reimbursement. In addition, a review of the evidence in the record reveals that no such equitable considerations exist.
ORDER:
Based on the Findings of Fact and Conclusions of Law and all evidence before the IHO, it is hereby ORDERED that:
1. That the New York City Department of Education is directed to reimburse and/or fund the cost of the Student's 2021-2022 placement at [REDACTED] in the amount of $10,225.00;
2. As to the tuition reimbursement/funding, all payments shall be made directly to the non-public, unilateral placement(s) upon a showing by the Parent that tuition has not been paid out-of-pocket by the Parent. If the Parent can show that out-of-pocket payment to the placement(s) was made by the Parent, then the Parent shall be reimbursed by the District;
3. For the 2021-2022 ten-month school year the Student was entitled to the following program: a) ABA Services, 1:1, push-in, 23 hours per week; b) SETSS, 1:1, 10 hours per week; c) Occupational Therapy, 1:1, twice per week for 45 minutes;
d) Speech and Language Therapy, 1:1, twice per week for 45 minutes; e) Counseling Services, 1:1, twice per week for 30 minutes; f) Transportation to and from [REDACTED] in a climate-controlled vehicle with limited travel time.
To the extent the above services were not being provided by the District, said services were to be provided by a provider of the Parent's choosing with said provider to be compensated by the District at a reasonable market rate.
4. For the 2021-2022 ESY the Student was entitled to the following program: a) ABA Services, 1:1, 30 hours per week; b) SETSS, 1:1, 10 hours per week; c) Occupational Therapy, 1:1, twice per week for 45 minutes; d) Speech and Language Therapy, 1:1, twice per week for 45 minutes; e) Counseling Services, 1:1, twice per week for 30 minutes; and, f) Transportation to and from [REDACTED] in a climate-controlled vehicle with limited travel time.
To the extent the above services were not being provided by the District, said services were to be provided by a provider of the Parent's choosing with said provider to be compensated by the District at a reasonable market rate.
5. Based upon the District's failure to provide the Student with certain services during the entire course of the twelve-month 2021-2022 school year, the Student shall be entitled to the following: a) A bank of 985 hours of ABA Services, 1:1; b) A bank of 80 hours of ABA supervision; and, c) A bank of 40 hours of parent training and counseling.
Said services are to be provided by a provider of the Parent's choosing with said provider to be compensated by the District at a reasonable market rate. Said services to be utilized no later than August 31, 2025.
6. Parent to be reimbursed for any expenses incurred in transporting the Student to and from [REDACTED] during the 2021-2022 school year.
7. The District shall forthwith reevaluate the Student in all areas of suspected disability and, upon completion of those evaluations, reconvene the CSE, upon reasonable notice to the Parent, to determine what, if any, modifications need to be made to the Student's IEP. The evaluations shall include, at a minimum, a complete neuropsychological evaluation, an occupational therapy evaluation, and a speech and language evaluation.
8. The district must immediately upon receipt, enter this order on a system that is used to keep track of such orders.
SO ORDERED:
Dated: June 4, 2023 _Steven P. Forbes
Steven P. Forbes
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.
CERTIFICATION OF RECORD
The record before me as the Hearing Officer in this matter of the following:
1. Administrative Due Process Complaint dated September 10, 2021.
2. Notice of Hearing and Appointment dated February 2, 2022.
3. Parent's Exhibits A-T totaling one hundred eighty-two (182) pages.
4. The written transcript of the hearing totaling two hundred forty-seven (247) pages.
5. Findings of Fact and Decision dated June 4, 2023.
I, Steven P. Forbes, the Hearing Officer in this matter, do hereby certify that the attached record is accurate and encompasses the entire record in the above-entitled matter as of this date.
I further certify that the materials forwarded herewith are the original or a true copy of the original documents and/or other tangible items that constitute the record in this matter.
EXECUTED this 4th day of June, 2023.
__Steven P. Forbes_______
STEVEN P. FORBES
Impartial Hearing Officer
Footnotes
[1] Personally, identifiable information is attached as a cover sheet to this decision and must be removed prior to public distribution.
[2] P-B.
[3] Id. This classification is obviously outdated as the IEP was developed over five years ago.
[4] Id.
[5] P-I.
[6] P-I, page 13.
[7] Id.
[8] T., page 17.
[9] Id.
[10] P-T.
[11] Id.
[12] Id.
[13] T., pages 38-88; 115-160.
[14] See, P-M.
[15] P-I.
[16] T., pages 220-242.
[17] T., pages 160-202.
[18] P-I; P-M.
[19] P-N.
[20] The District elected not to submit a closing brief and in failing to do so, offered no argument whatsoever on the appropriateness of the unilateral placement, the need and/or appropriateness of the ABA services or the Parent's claim for compensatory services.
[21] P-P.
[22] P-B, page 15.
[23] P-I; P-M; P-S.