NY IHO #218362: New York City... | Special Education Law

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CASE NUMBER: 562525 - NYC: 218362

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: New York City Department of Education (“DOE” or the “District”)

Hearing Requested by: REDACTED, of REDACTED, on behalf of REDACTED (the “Parent”) and the Student

Record Close Date: March 5, 2022

Hearing Officer: Randy Glasser, Esq.

On September 27, 2021, REDACTED, of REDACTED, filed a due process complaint (“DPC”) on behalf of the Parent and her child, the Student, regarding his special education program and services for the 2019/2020 through 2021/2022 school years (Parent Ex. “A”). Pursuant to a Change in Hearing Officer resulting from the fact that the appointment of the prior Hearing Officer was rescinded, this Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on November 1, 2021. The Parent and Student were represented by REDACTED and the District by Agency Attorney, REDACTED, Esq. A prehearing conference was held on November 5, 2021, and Hearing on November 29, 2021 and January 14, 2022. The District submitted a Motion to Dismiss the Due Process Complaint dated November 16, 2021 (IHO Ex. “IV”), and the Parent submitted a Responsive Motion on November 23, 2021 (IHO Ex. “V”). This IHO issued an Order on the District’s Motion to Dismiss dated November 25, 2021, denying the request (IHO Ex. “VI”^[1]). Written Closings were submitted by both the District and Parent, on February 11, 2022 (IHO Ex. “VIII” and “IX”).

The District submitted Exhibits “1” – “28” into evidence, but did not put on a direct case or present rebuttal testimony (Tr. 62-63, 331). The Parent submitted into evidence Parent Exhibits “A” through “S”, which included the Testimony Affidavit of REDACTED (Parent Ex. “S”). Lists of the appearances and documentary evidence submitted in this proceeding are appended to this Decision. The compliance date for this matter was extended to March 12, 2022 (IHO Ex. “VII”).

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED years old, classified as a student with an Other Health Impairment, and diagnosed with a Sensory Processing Disorder, Attention Deficit Hyperactivity Disorder-Combined Type (“ADHD”) a Nonverbal Learning Disorder, a Specific Learning Disorder with Impairments with Written Expression, Autism Spectrum Disorder, Major Depressive Disorder and Adjustment Disorder with anxiety (Parent Ex. “D”, “E”). Pursuant to a neuropsychological evaluation of the Student dated May 17-19, 2021, REDACTED, provides the following summary of her findings regarding the Student:

In summary, [the Student] (9-7) was a funny, talkative, and somewhat impulsive boy. He was referred for neuropsychological assessment because his parents would like to better understand his dislike of school, writing, and his social perception. His family would like to better understand how his cognitive functioning, as well as his emotional functioning impacts him in the classroom.

[The Student’s] overall intellectual functioning was within the high average range. His performance on verbally based measures was quite variable overall however. For example, his verbal intelligence was placed at the 95th percentile. His verbal reasoning skills were excellent, and his ability to define vocabulary words was outstanding. His verbal memory was also very well developed. A screening of his speech language skills evidenced excellent expressive language skills. However, his receptive language skills were variable. He has relative difficulty sequencing complex instructions. Further, he had difficulty fully comprehending short stories and short lectures when they were not items that he was very interested in.

[The Student’s] non-verbal abilities were also variable. Categorization and complex logical problem solving were outstanding. Visual spatial processing was solidly average. His immediate nonverbal memory was somewhat variable. He performed far better with more concrete visual memory tasks than abstract ones. However, [the Student's] visual memory was far stronger than during previous testing. [The Student’s] fine motor skills were weak. He was able to copy shapes in an age appropriate manner. However, his motor coordination was weak. His fine motor strength and control were both also extremely weak. This will need to be addressed in occupational therapy.

Executive functions are the mental processes that are responsible for planning, cognitive flexibility, rule acquisition, initiating, inhibition, and attentiveness. [The Student’s] executive functioning skills tended to be variable. His parents reported significant difficulty with inattention, hyperactivity, and peer relationships. In a 1:1 testing situation, his working memory was somewhat variable. On a task of extended attention, his performance indicated impulsivity. His cognitive flexibility was a relative weakness. Further, testing evidenced relatively weak abstraction skills and planning skills. Overall, although there have been improvements, [the Student] continues to show significant weaknesses in this area, which impact him during open-ended assignments, such as writing.

[The Student’s] overall level of academic achievement tended to be variable. His reading skills were excellent. [The Student] was excellent at decoding. Further, he understood what he read. He was able to synthesize the main idea and show an understanding of details. He was also able to predict based on what he had read. He read relatively very quickly and generally accurately. His math skills were generally on or slightly above grade level. [The Student] was able to add and subtract in an age appropriate way. He could multiply. Moreover, his ability to solve word problems was grade appropriate. In contrast, his writing skills were delayed. When [the Student] was given structure and guidelines, he wrote complete sentences, although there was some difficulty with mechanics. When he was not given guidelines, [the Student] struggled to write full sentences. [The Student’s] writing skills were significantly weaker than one would expect given his intellect, age, and educational history. Therefore, he qualifies for a diagnosis of Specific Learning Disorder with Impairments in Written Expression. [The Student] will clearly need support in this area. His fine motor deficits combined executive dysfunction have made writing challenging for him.

[The Student] is a boy who is extremely enjoyable to spend time with. It can be very relaxing to be in his presence. Further, [the Student] has a good sense of humor. However, he continues to show significant signs of both anxiety and depression. He is lonely and this loneliness seems to stem from his difficulty with social perception. Further, both his parents and teachers support this view and note that he can also be very argumentative and avoidant. On the gold standard testing for autism spectrum disorder, he clearly met criteria for moderate levels of autism, which matched parent report on the SRS-2. This was a contrast to his previous report. They did not assess for autism spectrum disorder. Notably, however, there are also pieces of depression which seem to be genetic in nature and are not simply a reaction to symptoms of autism. It is clear that he will need continued therapy with social skills support in order to help improve his mood.

(Parent Ex. “E” at pages 11-12).

The Parent unilaterally placed the Student at REDACTED (“REDACTED”) for preschool through third grade, (the 2016/2017 through 2020/2021 school years) and at the REDACTED (“REDACTED”) for the 2021/2022 school year, which is his fourth grade year (Tr. 256, 261, 265, 269, 251) for which they now seek reimbursement/funding for the Student’s tuition and transportation to REDACTED for the 2019/2020 and 2020/2021 school years and for REDACTED for the 2021/2022 school year (Parent Ex. “A”).

The Student’s Individualized Education Program (“IEP) dated July 22, 2021 for the 2021/2022 school year, recommends the following ten month program: Special Education Teacher Support Services, in a group of an unspecified size, three (3) times per week, one (1) period per session, individual counseling services, one (1) time per week, thirty (30) minutes per session, counseling in a group of up to three (3) students, one (1) time per week, thirty (30) minutes per session, and individual occupational therapy, two (2) times per week, thirty (30) minutes per session (Parent Ex. “D”).

The Parent alleges that the District failed to hold timely and compliant IEP Team meetings, conduct timely and comprehensive evaluations, consider independent evaluative data, denied the Parent the right to meaningfully participate in the decision making and development of the Student’s educational program in that it failed to hold an IEP Team meeting for the 2019/2020 school year, recommend and provide appropriate services, develop appropriate goals for the Student, provide the Student with an appropriate placement, meet the Student’s academic needs, and develop an appropriate educational program for the Student (Parent Ex. “A”). The Parent therefore proposes the following solutions for the issues raised in the DPC:

1. The IHO shall find that the District denied the Student a FAPE for the 19/20, 20/21, and 21/22 school years;

2. The IHO shall order the District to reimburse the Parent, within thirty days of the decision date, for all tuition costs, including summer tuition costs for the summer of 2022, for the Student’s attendance at REDACTED during the 21/22 school year;

3. The IHO shall order that the District provide specialized door-to-door transportation to and from REDACTED;

4. The IHO shall reimburse the Parent for all transportation costs, including car service costs, to and from REDACTED;

5. The IHO shall order that the District fund compensatory services, including multi-sensory tutoring, OT services, S/L services, PCAT services, and psychotherapy, through independent providers of the Parent’s choosing at those providers normal and REDACTED rate. The IHO shall order that the DOE fund transportation to and from all tutoring sessions if necessary;

6. The IHO shall order that the District reimburse the Parent for the cost of the [REDACTED] for the 19/20 and 20/21 school years within thirty days of the decision date;

7. The District shall pay the Parent’s attorney’s fees and expenses associated with representation in this matter^[2];

8. Any other relief that the Impartial Hearing Officer deems appropriate to remedy the District’s denial of FAPE.

(Id.)

The District’s following opening statement expressed its position in this matter:

In this matter, the Department will not be presenting any witnesses, and will rely on the documentary evidence to show that the Department did provide a FAPE for the relevant school years.

Furthermore, the Department will argue that as it relates to the 2019/2020 school year, that, that is barred by the statute of limitations, and there is new documentary evidence that will show that the parent actually did, in fact, participate in the IESP meeting, did receive, and sign the recommended program page, and so thus, knew, or should have known about the program, and whether or not it had any deficiencies about the program after the IESP meeting.

Further, as it relates to the Parent's Prong II burden, the Department will seek to challenge the appropriateness of the REDACTED. Further, as it relates to the parent's request, the evidence will show that the parent parentally placed their student at [REDACTED] (phonetic) for the '19/'20 and '20/'21 school years, and thus, is not entitled to tuition reimbursement for [REDACTED], for those relevant school years; as stated, the student was parentally placed there.

Furthermore, the Department will argue Prong III and equities, as at no point in time did the parent request placement or an actual IEP until the parent sent a ten-day notice, which was dated August 17th, 2021; days before the ten-month school year started, and so the Department will argue equities as well. Thank you.

(Tr. 63-65).

The Parent further elaborated upon and explained her position regarding the issues in this case in the opening statement (Tr. 67-73).

The Parent presented the testimony of the following witnesses: REDACTED, Speech and Language Therapist, REDACTED, REDACTED, REDACTED, Occupational Therapist, REDACTED, PsyD, REDACTED, REDACTED, REDCATED, REDACTED, REDACTED Preparatory School, and the Parent. Below please find a summary of each of these respective witnesses’ testimony:

REDACTED: Ms. REDACTED, a speech language pathologist who works for REDACTED (Tr. 84, Parent Ex. “P”), and was certified at the Hearing as an expert witness (Tr. 87), evaluated the Student on October 8, 2021 (Parent Ex. “G”) testified in relevant part regarding the results of her evaluation (Tr. 88-89), why she recommended the Student receive one individual and one group session per week, he needs compensatory speech services comprised of one hour per week for forty-six (46) weeks (Tr. 90-94, 101, 104-105), his pragmatic language is below average, even though it was not when he was evaluated in 2019 and explained why (Tr. 99-100), and when she spoke with the Student’s current speech language provider she agreed that he needs one (1) individual session per week in addition to the push-in social group (Tr. 107).

REDACTED: Ms. REDACTED, an occupational therapist in part at REDACTED Speech Services, evaluated the Student on October 27, 2021(Parent Ex. “H”, “Q”), testified regarding the formal and informal assessments used, that she interviewed the Student’s previous occupational therapist, current occupational therapist, and Parent, and conducted a records review and clinical observation of the Student (¶¶17, 18), her observations of the Student during testing (¶¶19 - 21), how the Student almost always preferred “alternative seating” options during testing (¶22), the Student’s strengths (¶23), the results of the Sensory Profile-2 (¶24), results of the Test of Visual Perceptual Skills (¶25), testing administered by REDACTED, an OTR/L at REDACTED Preparatory School (¶26), the Print Tool results (¶¶27, 30), her evaluation results indicating handwriting activities are extremely non-preferential for the Student (¶28), that he had some difficulty attending to a complete oculomotor screening, and his difficulties with oculomotor skills (¶29), her conclusions based upon her clinical observation and review of background information provided during this assessment (¶¶31, 32), that he exhibits severe and significant deficits in occupational therapy areas and gave examples (¶33), that he requires at least three (3) forty-five (45) minute occupational therapy sessions per week, consisting of two (2) individual sessions and one (1) group session, forty-six (46) weeks per year, in order to prevent regression of self-regulation and sensory processing abilities (¶34), how the services provided by the DOE failed to meet the Student’s “intensive OT needs”, and develop appropriate OT goals throughout his educational career, the program developed by the DOE failed to include baseline data, failed to recommend twelve-month services (¶35), the Student requires Two Hundred and Seven (207) hours of compensatory occupational therapy services and why (¶36) and that he requires an assistive technology evaluation (¶37).

On cross-examination Ms. REDACTED admitted that the occupational therapy progress report at DOE Ex. “9” states the Student received two (2) sessions of occupational therapy per week (Tr. 123-125), that these two (2) sessions consisted of one thirty (30) minute session in school and one forty-five (45) minute session occupational therapy which occurred in a sensory gym (Tr. 126), that her recommendation is that the Student receive two (2) individual sessions of occupational therapy and one (1) group session of occupational therapy, both forty-five (45) minutes per week, the Student was already receiving occupational therapy two (2) times per week, thirty (30) minutes per session (Tr. 131), further explained how her recommendation for 207 hours of compensatory occupational therapy services was computed and that the Student would suffer substantial regression if he did not receive these services forty-six (46) weeks per year (Tr. 131-133), and that her results were valid even though the assessments were administered when the Student was experiencing transitional challenges (Tr. 134-135).

REDACTED: REDACTED, who is a pediatric neuropsychologist with an emphasis on neurodevelopmental issues like learning disabilities, ADHD, autism, et cetera, is an assistant professor at the REDACTED School of Medicine at REDACTED, Director of the Division of REDACTED, and Director of REDACTED at REDACTED was certified at the Hearing as an expert witness (Tr. 147, 150). She testified in relevant part regarding her evaluation of the Student in May 2021 and findings (Tr. 151, 152-163), and the programs and interventions she suggested for the Student to his Parent (Tr. 161, 163, 163-164)(see also: Parent Ex. “E”).

On cross examination the witness testified regarding whether the Student’s needs counseling in addition to a social skills group (Tr. 165-166), the counseling goals on the Student’s IESPs dated July 17, 2019 (DOE Ex. “2”) (Tr. 169), June 5, 2020 (DOE Ex. “15’) (Tr. 171), and May 26, 2021 (DOE Ex. “23”) (Tr. 172); her recommendation regarding occupational therapy and how to work on the Student’s pragmatic language deficits (Tr. 172, 173-174). While on re-direct the witness testified regarding the “other things”, she did not see in the Student’s goals that he requires (Tr. 175-176).

REDACTED: The founder of REDACTED was certified at the Hearing, as an expert in education (Tr. 196, 201). She testified regarding how the Student performed on the testing she administered (Tr. 205), his executive functioning and why he needs multisensory instruction (Tr. 205, 206-208), why she recommended five hundred (500) hours of intensive one-to-one multisensory tutoring (Tr. 209, 210) the breakdown of these hours on a daily basis and that they can be administered over the weekend (Tr. 210, 218-219). On cross-examination REDACTED testified that the Student should have received one-to-one tutoring in math (Tr. 213) and writing (Tr. 214), she did not review the Student’s progress reports or evaluative material (Tr. 215), she could not break down the five hundred (500) hours of tutoring she was recommending (Tr. 215), and how much of the hourly rate goes to the tutor versus REDACTED (Tr. 217-218).

Parent: The Parent testified in relevant part, that they first suspected the Student had a disability when he was eighteen (18) months old (Tr. 221); the DOE did not evaluate the Student before he was three (3) years old (Tr. 222); the Parents had him privately evaluated in May and September 2016 to understand what was going on with him, the diagnoses contained therein and what they cost (Tr. 222-224), they applied to the DOE for preschool for the Student and never received a reply so they placed him at REDACTED (Tr. 224-226); the evaluations the Parent asked the Parent to conduct were not appropriate (Tr. 226-230); the DOE’s CPSE did not develop an IEP for the Student because they felt it was very late in the school year, so they suggested that they “move over to CSE, and anything that would be developed would happen at CSE”; and that the CSE did not develop an IEP for the Student prior to or when he was in kindergarten (Tr. 231, 232); the DOE did not offer a placement for the Student before the current school year (Tr 232); during the IEP Team meeting for the 2018/2019 school year, the DOE did not explain to the Parent her rights, and she did not understand them at that time (Tr. 233-234); the Research Study the Student took part in the end of 2018/2019 beginning of 2019/2020 school year, why the Study was done, what the Study revealed, and she provided same to the District on April 15, 2019, after receiving it the end of March 2019 (Tr. 234-235); the DOE conducted a speech language and physical therapy evaluation of the Student, and what they indicated (Tr. 236); she did not receive the Student’s IEP for the 2019/2020 school year (Tr. 239-240); pursuant to an Order by another IHO, an independent neuropsychological evaluation was conducted of the Student when he was in third grade, which the Parent provided to the District and such evaluation was the first time the Student received several diagnoses, including, but not limited to Autism Spectrum Disorder (DOE Ex. “28”; Tr. 242-243); the Parent applied for the Student’s admission into the DOE’s NEST program for the 2021/2022 school year but never received a reply (Tr. 250); the School the Student currently attends, REDACTED, and why the Parent placed the Student there (Tr. 251-253); whether the Student has progressed at REDACTED and why (Tr. 253-256); REDACTED has been supportive to the Parent (Tr. 256-257); the changes she has seen in the Student since he started to attend REDACTED (Tr. 257-258, 258-260, 260-261); and that she was not sure whether the Student’s IEP was implemented when he attended REDACTED (Tr. 277).

REDACTED: Mr. REDACTED, the REDACTED at REDACTED, who sees [the Student] for counseling testified in relevant part, describing REDACTED and its Students (Tr. 282-282), the Student’s schedule, all the classes, services, etc., listed thereon, how they address the Student’s needs, and what if any growth or progress the Student has made in these classes (Tr. 284 -324); the related services the Student receives (Tr. 324) qualifications of the head teacher (Tr. 325), and whether or not REDACTED is appropriate for the Student and why (Tr. 325-327). On cross-examination Mr. REDACTED testified in relevant part what level the Student was on in Math and Writing (Tr. 328-320).

The Student’s eligibility and classification are not at issue in this case^[3].

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”) (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through, the IDEA's procedures, and is (c) reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a FAPE (8 NYCRR § 200.5(j)(4)(i)), except:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5(j)(4)(ii).

Id. (Emphasis added.)

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

• The IDEA empowers a hearing officer to grant the relief he/she deems appropriate. 34 CFR §300.516(c)(3). One such remedy is reimbursement of tuition and related expenses. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Burlington Sch. Comm. v. Mass. Dep’t. of Educ., 471 U.S. 359, (1985). Notably, the mere fact that the state educational agency and/or LEA has not approved the private school placement does not bar the parents from reimbursement. Florence County Sch. Dist. Four v. Carter, supra.

B. Tuition Reimbursement/Direct Funding: A board of education may be required to pay for educational services obtained for a child by the child's parent, (1) if the services offered by the board of education were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim (Burlington Sch. Comm v. Mass. Dep’t. of Educ., supra; Florence County Sch. Dist. Four et al. v. Carter, supra; see also Frank G. and Dianne G. v. Board of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, Board of Educ. of Hyde Park Cent. Sch. Dist. v. Frank G., 2007 WL 2982269 (2007). Accordingly, the above-stated three (3) prong analysis (the “Burlington/Carter Criteria”) is applied to determine whether the board of education is required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents. Id.

The inquiry made pursuant to the first prong, may go beyond the appropriateness of the student’s IEP and/or placement and encompass other FAPE claims (see 20 USC §1412(a)(10)(C)(ii); 34 C.F.R. 300.148(a) and (c); Forest Grove v. T.A., 557 U.S. 230 (2009); P.C. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.D.N.Y. 2011); Mr. N.C. v. Bedford Cent. Sch. Dist., 300 F. App’x 11 (2d Cir. 2009). To determine whether the school district made FAPE available to the student in a timely matter, Rowley’s two-part test, as modified by Endrew F. v. Douglas County Sch. Dist., RE-1, supra, for appropriateness should be applied. Specifically, the hearing officer must determine whether the school district complied with the procedural requirements of the IDEA and whether the IEP is reasonably calculated to enable the child to make appropriate progress in light of her circumstances. Id. “An appropriate educational program therefore 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 for the use of appropriate special education services.” (See Application of the Dept. of Educ., Appeal No. 07-018 (2007)). Thus, the annual goals and short-term objectives should be consistent with, and relate to, the identified needs and abilities of the student. See Application of a Student with a Disability, Appeal No. 14-078 (2015) (citing 20 U.S.C. § 1414(d)(1)(A)(i)(II); 34 CFR § 300.320(a)(2)(i); 8 NYCRR § 200.4(d)(2)(iii)).

While the Second Circuit has emphasized that school districts must comply with a checklist of procedures for developing a student’s IEP, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA. See A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student’s right to a FAPE; (b) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits to the student (20 U.S.C. §1415(f)(d)(E)(ii); 34 C.F.R. §300.513(a)(2); 8 NYCRR §200.5(j)(4)(ii)).

In the instant case, the DOE failed to put any documents into evidence, on a direct case, or present rebuttal testimony (see infra). Thus, the District chose to rest on the documentary evidence (see infra). As aforementioned, the DOE has the statutory burden of persuasion and production in this case, to show that the program and services offered by the DOE pursuant to the Student’s IEPs/IESPs were adequate or appropriate in order to satisfy Prong I of the Burlington/Carter Criteria. Accordingly, the District failed to proffer sufficient documentary or any testimonial evidence or otherwise prove that it had offered the Student a FAPE for the 2019/2020 through 2021/2022 school years, e.g., whether it offered a program that “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

Consequently, since the hearing record is devoid of any persuasive evidence, arguments or statutory authority proffered by the District, which can adequately support a contention or otherwise negate the Parent’s allegations, it is this IHO’s finding, as discussed more fully infra that the District both procedurally and substantively denied the Student a FAPE, for the 2019/2020 through 2021/2022 school years.

Due to the DOE’s failure to satisfy the first prong of the Burlington/Carter Criteria, the burden shifts to the Parent to prove that the unilateral placement was appropriate or proper. Burlington Sch. Comm., 471 U.S. at 369 and 370; see also Florence County Sch. Dist. Four et al. v. Carter, 510 U.S. at 15. In order to meet this burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007)). In this regard, the court in Gagliardo explained:

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction.

Id. at 112 (quoting, Frank G., 459 F.3d at 364-65).

However, the private school placement “need not meet the IDEA’s definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Board of Educ., at 364). Moreover, the private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. Id.

1. REDACTED: In the instant case, the testimony and documentary evidence overwhelmingly support the Parent’s claim that the Student’s placement at REDACTED provides him with educational instruction that is specifically designed to meet his unique special education needs, supported by such services that are necessary to permit him to benefit from instruction, and established that the Student has, in fact, made meaningful progress at REDACTED (see Infra). In this regard, and as aforementioned both Mr. REDACTED and the Parent described how REDACTED addressed the Student’s needs, resulting in him ultimately making progress (see: infra). Accordingly the Parent has satisfied her burden regarding Prong II. However, there was no evidence or testimony proffered by the Parent or otherwise substantiating her request for tuition reimbursement for the Summer of 2022. Rather, both the Tuition Contract and Tuition Document state that the Parent owed and paid the total amount of EIGHTY SEVEN THOUSAND NINE HUNDRED AND FIFTY DOLLARS ($87,950.00) for the period of September 15, 2021 through June 24, 2021, a ten month period; (notably, pursuant to the Student’s IEPS and IESPs he is a ten month Student)(DOE Ex. “2”, “13”, “23”, Parent Ex. “B”, “C”, and “D”). Accordingly, the Parent has failed to satisfy her burden for Prong II for the Student’s program at REDACTED during the Summer of 2022.

2. REDACTED: The only testimony provided regarding Prong II of the Burlington/Carter Criteria was that the Parent placed the Student at REDACTED after not receiving a preschool placement from the DOE for the Student and that she thinks, but is not sure that REDACTED implemented the recommendations contained in the Child Mind Institute Research Study (see: Infra). While the only evidence submitted by the Parent in this regard was the Student’s IESPs dated June 5, 2020 and July 22, 2021 respectively which state in relevant part regarding the Student’s progress:

• [The Student) has shown progress with his therapeutic goals although his weekly school-based OT seemed insufficient for consistent skill performance.

(Parent Ex. “C”).

While the IESP dated July 22, 2021 states in relevant part:

• Writing has been a challenge for [the Student) this year. With individual adjustments and support, [the Student) has been able to achieve his writing goals... [The Student) has benefitted from typing his writing projects and having clear, teacher-set benchmarks for this work.
• He has made great progress as a member of our community, increasing his attendance and participation significantly in increments throughout the year. In the classroom, [the Student) does well with routines and takes responsibility for himself throughout the day.
• In terms of the fine motor and visual motor skills, [the Student) has demonstrated slow, steady progress toward meeting his goals.

(Parent Ex. “D”). Thus, there was very little if any evidence presented demonstrating what if any progress the Student made at REDACTED during the 2019/2020 and 2020/2021 school years. These documents contain more information regarding the Student’s functioning levels instead of progress.

The District submitted into evidence a Progress Report by REDACTED for both the 2018/2019 2019/2020 school years (see DOE Exhibits “19” and “20” respectively). Since the Parent is not seeking tuition reimbursement for the 2018/2019 school year the Progress Report for this school year this document has little relevance, other than background information. Moreover, instead of reporting on progress, like the IESPs discussed above, they describe the Student’s functioning levels instead of the Student’s progress and how if at all REDACTED addressed his needs during these respective school years. Accordingly, the Parent has not met her burden under Prong II, in that there was no evidence or testimony proffered proving that the educational instruction the Student received to meet his unique needs, that he was supported by services that were necessary for him to benefit from such instruction and that he did in fact make meaningful progress while attending REDACTED. In fact, the Parent did not present any evidence or testimony regarding the annual tuition for REDACTED. Rather, the Parent’s argument appears to be that because the DOE failed to provide a placement for the Student, the Parent had no choice but to place the Student at REDACTED, and that she could not have known the Student’s needs because the DOE failed to conduct a psychological or psychoeducational evaluation of the Student, and that therefore the DOE should be obligated to reimburse the Parent for the cost of the Student’s tuition at REDACTED for the 2019/2020 and 2020/2021 school years (IHO Ex. “IX”). However, as aforementioned, that is not the Parent’s burden under Prong II of the Burlington Carter Criteria. Having determined that the Parent failed to sustain their burden under Prong II, it is not necessary to address Prong III for REDACTED, as this inquiry is at an end (see Mrs. C. v. Voluntown, 226 F.3d 60, 66 (2d Cir. 2000).

The determination of whether, or not equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on whether, the parent cooperated with the CSE. In the instant matter, the DOE failed to provide any evidence and/or raise any equitable factors, which would preclude or limit tuition reimbursement for the Parent’s unilateral placement of the Student at REDACTED for the 2021/2022 school years. In this regard, the Parent fully cooperated with the DOE, and attended the relevant CSE meetings for the Student (Parent Ex. “C” and “D”). In fact, the evidence is devoid of any reply by the DOE when the Parent provided notice to the DOE that she planned to unilaterally enroll the Student at REDACTED for the 2021/2022 school year (Parent Ex. “I”).

Based on the foregoing, this IHO finds that the Parent has satisfied Prong III of the Burlington/Carter Criteria for tuition reimbursement for REDACTED. Having met all three (3) of the Burlington/Carter Criteria, the Parent is entitled to reimbursement for the cost of the Student’s tuition at REDACTED for the 2021/2022 school year, (but not at REDACTED for the 2019/2020 and 2020/2021 school years). The record in this case establishes that the Student’s total annual tuition at REDACTED for the 2021/2021 school year was EIGHTY SEVEN THOUSAND NINE HUNDRED AND FIFTY DOLLARS ($87,950.00) of which the Parents paid the full amount (Parent Ex. “J”, “N”).

C. Transportation: As aforementioned the Parent requests the DOE provide specialized door-to-door transportation to and from REDACTED and that the IHO order the DOE to reimburse the Parent for all transportation costs, including car service costs, to and from REDACTED (see: Infra).

As explained by the SRO in App. No. 18-115 (2018), citing relevant case law:

... under a more traditional application of the Burlington/Carter framework for tuition reimbursement, an order for tuition reimbursement may very likely have included the costs of the transportation sought by the parent (see Union Sch. Dist. v. Smith, 15 F.3d 1519, 1528 [9th Cir 1994) [finding "that the language and spirit of the IDEA encompass reimbursement for reasonable transportation and lodging expenses... as related services"); see also N.E. Cent. Sch. Dist. v. Sobol, 79 N.Y.2d 598, 608 [1992) [finding that, since a FAPE included related services such as transportation, an order of reimbursement for transportation was an appropriate remedy for a denial of a FAPE)).

Id.

In the instant matter, the Parent failed to present any evidence substantiating this claim, including, but not limited to any payment the Parent made for the Student’s transportation to REDACTED during the 2021/2022 school year. Moreover, none of the IEPs or IESPS submitted into evidence, including the IESP for the 2021/2022 school year dated July 22, 2021, state that the Student is entitled to specialized transportation (Parent Ex. “C”, “D”).

Moreover, the Parent requests that the DOE reimburse the Parent for all transportation costs, including car service costs, to and from REDACTED for the 2021/2022 school year. However, the Parent failed to submit any testimony or evidence substantiating this claim e.g., receipts for transportation, gas, etc.

Accordingly, the Parent is not entitled to the requested transportation or reimbursement for the cost of same. Nevertheless, the Student may be entitled to transportation to REDACTED under Section 3635 or 4402 of the New York Education Law, with such determination under either of these sections of the New York Education Law being made separate and apart from these proceedings.

D. Compensatory Services:

1. Introduction: In the Second Circuit, it is established that the IDEA allows a Hearing Officer to fashion an appropriate remedy, and therefore courts have held compensatory education is an available option under the IDEA to make up for denial of a FAPE. P. v. Newington, 546 F.3d 111 (2d Cir. 2008).

Ordering compensatory education is not automatic or a matter of quid pro quo, where a student gets one hour for every hour missed of compensatory time. Accordingly, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than being awarded pursuant to a formula, the ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from the special education services the school district should have supplied in the first place. Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (Reid was cited by the second circuit in Newington, in reaching its conclusion that compensatory education is an option. Newington at 123). Notably, Reid, supra, emphasizes that compensatory services are equitable relief; they are not a contractual remedy. Reid at 123.

There are primarily two competing approaches utilized in fashioning a compensatory education award, namely the “quantitative” approach authored by the Third Circuit^[4], and the “qualitative approach relied upon by the Sixth and D.C. Circuits^[5]. Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount, of services missed so that the services can be made up through compensatory education. M.C. on behalf of J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807 F. Supp. 860 (D.N.H. 1992). However, neither the Second Circuit^[6] nor the New York courts^[7] have taken a position on a preferred approach. Accordingly, Hearing Officers have discretion as to which approach to apply.

No matter which approach, when determining the appropriate equitable remedy for compensatory services, the IHO may go back in time for many years. Thus, in G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3rd Cir. 2015), the court held that equitable relief could go back for many years in cases of compensatory education because Moreover, the IDEA’s two year “statute of limitations does not apply to limit the permissible periods of compensatory educational awards.” Id at 610. Among the lower court cases cited by G.L. to support this proposition was the New York case of K.H. v. New York City Dep’t. of Educ., No. 12-CV-1680, 63 IDELR 295 (E.D.N.Y. 2014).

Moreover, when a school district deprives a child with a disability of a FAPE in violation of the IDEA a court or hearing officer fashioning appropriate relief may order compensatory education (20 U.S.C. 1415(i)(2)(C)(iii); 34 C.F.R. 300.516(c)(3); Sch. Com. of Burlington v. Dep’t. of Educ., 41 U.S. 359, (1985). Generally, said denial must be more than de minimis Catalan v. Dist. of Columbia, 478 F.Supp.2d 73, 75 (D.D.C. 2007) (court found no evidence that the handful of missed speech therapy sessions added up to a denial of FAPE) quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 348-349 (5th Cir. 2000), cert. denied, 531 U.S. 815 (2000). As explained by the Court in M.C.:

a school district that knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem. We believe that this formula harmonizes the interests of the child, who is entitled to a free appropriate education under IDEA, with those of the school district, to whom special education and compensatory education is quite costly.

Id. at 397.

The District was required under the due process procedures set forth in New York State law to address the issue by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE (Educ. Law § 4404(1)(c); see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. 2017) (noting the SRO's finding that the District had the burden of proof on the issue of compensatory education); see also Doe v. East Lime Board of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. District of Columbia, 401 F.3d, 516, 524 (D.C.D.C. 2005). Where, as here, New York State law has placed the burden of production and persuasion at an impartial hearing on the District, it is not the IHO's responsibility to craft the District's position regarding the appropriate compensatory education remedy. However, at no point during the hearing did the District offer any evidence to the contrary regarding the number of the compensatory services being requested, or challenge the Parent’s authority to select the providers for these services.

In the instant matter the Parent provided the aforementioned testimony demonstrating how it was apparent the DOE knew the Student’s program was inappropriate and/or that he was not receiving more than a de minimis education benefit, at several points during the 2019/2020 through 2021/2022 school years.

1. Parent Counseling and Training: The Parent requests Ninety Two (92) hours of compensatory Parent Counseling and Training services (Parent Ex. “A”). In this regard, the Parent argues that she is entitled to these compensatory services because the Student is diagnosed with Autism Spectrum Disorder and pursuant to 8 NYCRR §200.13(d), and thus, the DOE should fund ninety-two (92) hours of such services to “make up for its failure to recommend or provide necessary PCAT services to the Parent” to be provided through an independent provider of the Parent’s choosing at that “provider’s normal and customary rate” (IHO Ex. “IX”). As aforementioned, parents may be entitled to compensatory services when the District knew or should have known the Student’s IEP was defective but failed to correct such defect, and are therefore entitled to compensatory education “for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.” M.C., supra at 397.

In the instant matter REDACTED diagnosed the Student for the first time pursuant to her neuropsychological evaluation dated May 5, 2021 (Parent Ex. “E”, see: infra), and as the Parent correctly notes the Student and his family are entitled to Parent Counseling and Training as a result of this diagnosis, pursuant to 8 NYCRR §200.13(d). However, the subsequent IEP dated July 22, 2021 fails to recommend such services (Parent Ex. “D”). The question however is the appropriate amount of such compensatory services. In this regard, the Parent argues she is entitled to ninety-two (92) hours of such services, which is comprised of one (1) hour per week for two (2), forty-six (46) week school years (IHO Ex. “IX”). However, the Parent failed to proffer any testimony or evidence in this case substantiating such request. Moreover, the Student has a ten (10), not twelve (12) month program pursuant to his IEP, which is comprised of thirty-six (36) and not forty-six (46) weeks per year^[8].

Accordingly, the CSE shall convene within thirty (30) days of this Decision, to add appropriate parent counseling and training services to the Student’s IEP and thereafter, determine what the Student should have received beforehand. Thus, for example, if the CSE convenes on April 4, 2022 and adds one (1) session of Parent Counseling and Training per month, one (1) hour per session, the Parent will be entitled to eight (8), one (1) hour sessions of Parent Counseling and Training to make up for the sessions they should have received since the 2021/2022 school year commenced in September 2021 and possibly one (1) additional one (1) hour session for the remainder of the 2020/2021 school year, after REDACTED’s evaluation dated May 17-19, 2021, was provided to the District, totaling nine (9), one (1) hour sessions.

2. Speech Language Services: The Parent requests One Hundred and Thirty Eight (138) hours of compensatory speech services for the Student (Parent Ex. “A”, IHO Ex. “IX”). In this regard, the Speech and Language Evaluation by REDACTED, Speech and Language Therapist, dated October 27, 2021 states in relevant part:

3. Compensatory speech hours in the amount of a bank of 138 hours with no expiration; this equates to 1 hour a week, for 46 weeks of instruction for approximately 3 years provided to [the Student]. This calculation is based on the amount of services that it is projected to take [the Student] to a place where he can acquire the skills he is currently lacking in speech and language domains. Providing these services will allow [the Student] to have the opportunity to address his specific needs in a consistent manner. [The Student] needs intensive therapy to develop the foundational language skills he is lacking due to inappropriate and/or lack of services provided. [The Student’s] 2016 speech and language evaluation indicated the need for speech and language services. Although his same deficits persisted, subsequent evaluations failed to address pragmatic deficits and his individualized education plans address pragmatic deficits through counseling without any recommendations for speech language pathology services. [The Student] should have been receiving speech services to address his linguistic and pragmatic language deficits. I recommend that there shall not be an expiration on these compensatory services to allow [the Student] to utilize these hours with flexibility over an extended period.

(Parent Ex. “G” at pp. 21-22). Ms. REDACTED provided the following testimony further explaining this recommendation:

MS. REDACTED: Yeah, so, again, based on a document review, based on an interview with the parents, an interview with his educators; [the Student] is an individual who has required speech-language intervention. I believe it was in the 2016 language evaluation, it was recommended. So, again, he did present with average receptive and expressive language scores, however, it was indicated that his severe pragmatic deficits were prohibiting him from functionally communicating in a classroom environment. So he -- he -- this is the minimum amount of services required, to make up for the deficit that he -- he -- he hasn't been receiving speech services for his entire academic career.

MR. REDACTED: Okay. Now, these 138 hours; are you recommending them in addition to the one-time individual and one-time group, that you're also recommending?

MS. REDACTED: Yes.

MR. REDACTED: Okay. All right, thank you, and you also indicate one hour a week for 46 weeks of instruction. Why are you recommending 46 weeks?

MS. REDACTED: Again, during his document review, he does present with high rates of recidivism; so he does not retain or respond well to breaks in therapy. He has a very hard time transitioning. So keeping it consistent throughout that 46 weeks, is what he needs.

(Tr. 92-93). Based upon the Parent’s testimony and the Speech and Language evaluation it is evident that the Student’s denial of FAPE was more than de minimis and the Student is entitled to these requested compensatory services.

3. Occupational Therapy Services: The Parent requests Two Hundred and Seven (207) hours of compensatory occupational therapy services for the Student (Parent Ex. “A”). In this regard, the Occupational Therapy Evaluation by REDACTED, M.S., OTR/L, recommends in relevant part:

2. Compensatory Occupational Therapy services are recommended in the form of a bank of 207 hours (providing approximately 1.5 hours per week for 46 weeks, for two years). These hours would give [the Student] consistent access to therapeutic intervention to address his significant deficits. The 46 week timeframe will ensure that [the Student] has consistent access to therapy, and will prevent regression of [the Student’s] skills. This recommended amount was derived from considering [the Student’s] current needs, and the time he will need to make up for a lack of appropriate intervention based on the plan of care/goals in prior years, including OT services only once per week between 2019-20 (per the IEP dated 06/05/2020), OT recommendations supporting increased services with intensive sensory supports, and limited access and attention to individualized sensory regulating activities, equipment, and support (despite documented significant sensory processing deficits). a. It is recommended that these hours shall not have an expiration date, to allow access to them over time. b. Compensatory OT services should address sensory processing and self-regulation, postural strength and endurance, bilateral coordination, gross motor and fine motor strength, dexterity, visual-motor integration skills, handwriting, keyboarding, and ADL/iADL skills for greater independence in the school, home, and community environments. c. Compensatory hours should be provided in a sensory gym environment, with access to specialized equipment. Examples include but are not limited to, mats, bolsters, crash pads, scooter boards, swings that provide linear and rotational movement, weighted materials, exercise balls, tactile items, etc. d. These makeup services will allow [the Student] to consistently make improvements in the above mentioned skills.

(Parent Ex. “H”). Ms. REDACTED also provided the testimony in paragraphs 33 through 36 further explaining her recommendation.

Based upon the Parent’s testimony and the Occupational Therapy evaluation it is evident that the Student’s denial of FAPE was more than de minimis and the Student is entitled to these requested compensatory services.

4. Counseling and Social Skills Group: The Parent requests One Hundred and Four (104) hours of compensatory counseling services and One Hundred and Four (104) hours of compensatory social skills group services for the Student (Parent Ex. “A”). However, the Parent has failed to proffer any evidence or testimony in this case, substantiating this request for compensatory counseling services (Parent Ex. “A”, IHO Ex “IX”). Even though the Parent cited testimony and evaluations opining that the Student’s counseling goals are deficient, and argues that thirty (30) minutes of counseling per week for the Student is deficient to meet his severe emotional needs, she does not prove that this constitutes a denial of FAPE and even if it does, she fails to substantiate a claim that such denial of FAPE is more than de minimis. Accordingly the Parent is not entitled to the requested compensatory counseling services.

However, the Parent has substantiated her claim for social skills group/compensatory services. In this regard, REDACTED recommended in relevant part the Student receive two (2) sessions of social skills training per week and further explained:

(Parent Ex. “E”). REDACTED continued to testify and explain:

But in terms of the short term, learning to type, learning to use some of these programs that can help him in the short run, expand his writing, and in terms of the social perception, you know it's more than just a one once a week social skills group. A once-a-week social skills group is not going to work for someone with moderate autism spectrum. You know, he needs -- he needs a lot of help. He needs to work on the social problem solving. He needs to understand why social outcomes have happened the way they have been; working on learning to influence socially, the way he can inference in a non-social setting.

(Tr. 162). However, there was no testimony or evidence presented by the Parent further explaining the duration of such sessions.

Nonetheless, the IEP dated July 22, 2021, developed subsequent to REDACTED’s evaluation, only recommends that he receive counseling one (1) time individually and one (1) time in a group of three (3) students, per week, thirty (30) minutes per session to work on in part his social skills goals (Parent Ex. “D”). Thus, an argument can be made that the IEP mandates one (1) of the two (2) sessions of recommended social skills training. Accordingly, the CSE shall convene and consider asking REDACTED to attend, or have the Parent discuss the duration of such services with REDACTED beforehand and then report back to the CSE their discussion, in order to determine the appropriate duration of such services.

In terms of compensatory services, if REDACTED states for example that the Student should have received two (2) hours of social skills training per week, then the DOE shall fund One and one-half (1.5) hours of compensatory social skills training from the commencement of the 2021/2022 school year, (which as stated in the IEP for the 2021/2022 school year is September 7, 2021), to the date that such recommendation is implemented. Thus, for example if the CSE meets on April 4, 2022 and it is determined that twenty-five (25) weeks of the school year have transpired, and REDACTED has recommended two (2) hours of social skills training per week, then the Student is entitled to 25 x 1.5 or 37.5 hours of compensatory social skills training.

5. Tutoring: The Parent requests Five Hundred (500) hours of compensatory multisensory tutoring services for the Student (Parent Ex. “A”; IHO Ex. “IX”). In this regard, REDACTED concluded:

Based on his neuropsychological evaluation dated 5/19/21, his Child Mind Institute Clinical Feedback Report dated 1/16/19, his IEP dated 9/7/21, and this assessment, it is clear that [the Student] is in[sic] critical that [the Student] receive structured, multi-sensory instruction to build his writing, mathematics, and executive functioning skills.

I highly recommend that [the Student] receive 500 hours of intensive one-one-one multi-sensory tutoring to build his writing mathematics, and executive functioning skills. I feel confident that this type of instruction will help him tremendously.

(Parent Ex. “F”). REDACTED testified, further explaining this recommendation:

MR. REDACTED: Okay. And now you also mention in the next paragraph that you recommend 500 hours intensive one-on-one multisensory tutoring. Why are you recommending the one-on-one support for [the Student]?

REDACTED: Well, I feel it's critical that he receive one-on-one given both his academic deficits, and given the fact that he has a learning disability in writing, ADHD, autism. Given his overall profile, I feel it's critical that he receives one-on-one support.

MR. REDACTED: Okay. And have you had experience working with children with [the Student’s] profile in terms of tutoring?

REDACTED: Absolutely. Extensive experience.

MR. REDACTED: And has that multisensory tutoring proven effective for those students with [the Student’s] profile?

REDACTED: Yes. Absolutely.

MR. REDACTED: And now, the 500 hours, how did you come up with that for [the Student]?

REDACTED: Well, I base that on a variety of factors. One was my own personal evaluation of [the Student]. It was also based on having reviewed -- thoroughly reviewed -- his neuropsychological evaluation, his Child Mind Institute report, several IEPs, and it's based on having done a great deal of work of students like him who have very similar profiles to him. It's based on all of those factors that I came to a recommendation of an average of five to seven hours per week over a two-year school time span, which came out to a total of 500 hours.

(Tr. 209-210).

REDACTED continued to explain, on cross-examination:

MR. REDACTED: Okay. Now, you did recommend 500 hours to address three different deficits. Could you tell us how many hours are required for each of those deficits in your opinion?

REDACTED: I don't break that down because I find in almost every scenario with students we start with one plan, and we continuously need to tweak that along the way based on how the student is progressing. For instance, if we started with an even split of writing, math and executive functioning, we might find pretty quickly after starting that he really needs the vast majority of help with writing, and we may need to shift more of those hours towards writing. So while I would say we may start with an even breakdown, it's very important for [the Student], in my professional opinion, that we have the flexibility to tweak that plan as we work with him.

(Tr. 215).

MR. REDACTED: Okay. And finally, do you know what rate you use or would charge for these 500 hours of instruction?

REDACTED: I do. The rate is $140 per hour.

MR. REDACTED: Okay. And could you explain how that is broken up? Does that all go to the specific tutor assigned to [the Student]?

REDACTED: No, it doesn't. It's a combination of payment to the tutor, we provide ongoing manipulatives and materials to support the lessons, and then there's a great deal of work that goes into the oversight of the instruction sort of behind the scenes to making sure the student is constantly progressing forward.

MR. REDACTED: Okay. And so do you have a breakdown of how much specifically the tutor makes versus how much the materials or cost versus the oversight out of that 140?

REDACTED: I can give an approximation. The tutors receive an average of $50 to $70 per hour, and there's typically -- the materials, there's a very wide range, typically anywhere from several hundred to several thousand dollars during the course of the instruction with the student.

(Tr. 216-217). Based upon the Parent’s testimony and the neuropsychological evaluation it is evident that the Student’s denial of FAPE was more than de minimis and he is entitled to the requested compensatory services.

The Parent also requests that this IHO order “the DOE fund transportation to and from all tutoring sessions ‘if necessary’”. However the record is devoid of any testimony or evidence demonstrating why and/or whether such transportation is “necessary”, the Student’s IEPs/IESPs do not provide for specialized transportation as a related service and the Parent’s Closing Brief fails to address this request. Since the Parent has failed to explain or further develop this request, it is denied.

E. Ocular Motor Screening: For the first time in the Parent’s Closing Brief she requests this IHO Order that the DOE fund an Ocular Motor Screening of the Student by an independent provider of the Parent’s choosing (IHO Ex. “IX”). In this regard, the Parent cites the following paragraph in REDACTED’s affidavit:

29. [The Student) has sone difficulty attending to a complete oculomotor screening. Difficulties with oculomotor skills were noted in this evaluation, as well as the assessment conducted by REDACTED Preparatory School in August 2021, and may indicate underlying oculomotor dysfunction.

(Parent Ex. “S”). As evidenced by this cited paragraph, Ms. REDACTED does not recommend an ocular motor screening. Rather she explains that “difficulties with oculomotor skills were noted in this evaluation” and the REDACTED Assessment in August 2020, and what this may indicate, e.g., underlying oculomotor dysfunction.

Moreover, the Parent cannot raise this request for the first time in their Closing Brief. Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing. Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees (20 U.S.C. § 1415 (f)(3)(B); 34 CFR §300.507 (d)(3)(i), 300.511(d); 8 NYCRR §200.5 (j)(1)(ii)), or the original due process complaint notice is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415 (c)(2)(E)(i)(II); 34 CFR §300.507 (d)(3)(ii); 8 NYCRR §200.5(i)(7)(b)). Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014)).

Here, it is undisputed that the Parent’s’ DPC does not request an oculomotor screening (see generally Parent Ex. A). Moreover, with respect to relief (as opposed to alleged violations), State and federal regulations require the due process complaint notice state a "proposed resolution of the problem to the extent known and available to the party at the time" (8 NYCRR §200.5(i)(1) (emphasis added); see 20 U.S.C. § 1415(b)(7)(A)(ii); 34 CFR §300.508(b)). Nonetheless, an IHO generally has broad authority to fashion appropriate equitable relief (see, e.g., Mr. and Mrs. A v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 422-23, 427-30 (S.D.N.Y. 2011); see Forest Grove v. T.A., 129 S.Ct. 2484 (2009)). While an award of relief not explicitly requested in a due process complaint notice may be appropriate in some circumstances, parties should not wait until after the hearing is complete to articulate the relief sought (see A.K. v. Westhampton Beach Sch. Dist., 2019 WL 4736969, at *12 (E.D.N.Y. 2019) (declining to address the parent's request for compensatory education that was raised for the first time in a post-hearing brief)). Regardless, in the instant case the Parent cannot argue that they became aware of the need for this requested screening after the DPC was filed, because as aforementioned neither Ms. REDACTED nor anyone else who testified in this case, nor any other evidence submitted, recommended and/or supported the Student’s need for this screening. Accordingly, the Parent’s request for an oculomotor screening is denied.

ORDER

IT IS HEREBY ORDERED that no later than thirty (30) days after this Decision, the DOE shall reimburse the Parent in an amount not to exceed EIGHTY SEVEN THOUSAND NINE HUNDRED AND FIFTY DOLLARS (87,950.00) representing the Student’s tuition for REDACTED for the 2021/2022 school year, upon the Parent’s submission of documentation evidencing their payment of such amount;

AND IT IS FURTHER ORDERED that the Parent’s request for tuition reimbursement for the Student’s program at REDACTED for the Summer of 2022 is denied;

AND IT IS FURTHER ORDERED that the Parent’s request for tuition reimbursement for the Student’s program at REDACTED for the 2019/2020 and 2020/2021 school year is denied;

AND IT IS FURTHER ORDERED that the Parent’s request for the DOE to provide roundtrip specialized transportation for the Student to REDACTED during the 2021/2022 school year is denied;

AND IT IS FURTHER ORDERED that the Parent’s request for the DOE to reimburse the Parent for all transportation costs, including car service costs, to and from REDACTED is denied;

AND IT IS FURTHER ORDERED that the DOE shall fund One Hundred and Thirty Eight (138) hours of compensatory speech services, by an independent provider selected by the Parent, at the market rate;

AND IT IS FURTHER ORDERED that the DOE shall fund Two Hundred and Seven (207) hours of compensatory occupational therapy services, by an independent provider selected by the Parent, at the market rate;

AND IT IS FURTHER ORDERED that the DOE shall fund Five Hundred (500) hours of compensatory multi-sensory tutoring services, by an independent provider selected by the Parent, at a rate not to exceed of One Hundred and Forty Dollars ($140.00) per hour;

AND IT IS FURTHER ORDERED that the Parent’s request for the DOE to fund transportation to and from all tutoring sessions, “if necessary” is denied;

AND IT IS FURTHER ORDERED that the DOE shall fund compensatory social skills group counseling services, to be determined by the CSE at a meeting to be convened within thirty (30) days of this Decision, with the input of REDACTED, more fully explained above;

AND IT IS FURTHER ORDERED that the Parent’s request for Ninety Two (92) Hours of Parent Counseling and Training is denied;

AND IT IS FURTHER ORDERED that the CSE shall convene within (30) days of this Decision, to add appropriate Parent Counseling and Training Services to the Student’s IEP/IESP and fund the number and duration of Parent Counseling and Training Services added to the Student’s IEP/IESP, that the Student should have received from the commencement of the 2021/2022 school year to the date such services are commenced, and as more fully explained above;

AND IT IS FURTHER ORDERED that Parent’s request for the DOE to fund an Ocular

Motor Screening is denied.

March 5, 2022

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES

NOVEMBER 29, 2021

DOE

REDACTED, Esq., Agency Attorney

Parent

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Speech and Language Therapist

REDACTED, REDACTED, Speech Services

REDACTED, Occupational Therapist

REDACTED, PsyD, REDACTED

JANUARY 14, 2022

DOE

REDACTED, Esq., Agency Attorney

Parent

REDACTED, REDACTED

REDACTED

REDACTED, REDACTED

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. Email, 11/9/2021, 1 page

II. Email, 11/9/2021, 1 page

III. Email, 11/9/2021, 1 page

IV. Motion to Dismiss, 11/16/2021, 41 pages

V. Responsive Motion, 11/23/2021, 10 pages

VI. Order, 11/25/2021, 7 pages

VII. Order of Extension, 1/14/2022, 1 page

• VIII. Closing Brief for the Department of Education, undated, 17 pages
• IX. Parent’s Closing Brief, undated, 28 pages
• DOE Exhibits
• 1. Parent Notice of Intent 4/16/2019 1 page
• 2. Individualized Education Service Plan (IESP), 7/17/2019, 14 pages
• 3. IESP Attendance Page, 7/17/2019, 1 page
• 4. Signed Confirmation Page, 7/17/2019, 1 page
• 5. IESP Meeting Notes, 7/17/2019, 1 page
• 6. Prior Notice Package for Parentally Placed Student, 7/17/2019, 4 pages
• 7. Speech and Language Evaluation, 5/09/2019, 6 pages
• 8. Physical Therapy Evaluation, 6/04/2019, 6 pages
• 9. Occupational Therapy Progress Report, 6/20/2019, 4 pages
• 10. REDACTED Progress Report, 2018-2019, 7 pages
• 11. Clinical Research Feedback Report, Undated, 39 pages
• 12. Letter from REDACTED, 12/20/2019, 1 page
• 13. IESP, 7/17/2019, 15 pages
• 14. Prior Notice Package for Parentally Placed Student, 1/13/2020, 3 pages
• 15. IESP, 6/05/2020, 11 pages
• 16. IESP Attendance Page, 1/29/2018, 1 page
• 17. Prior Notice Package for Parentally Placed Student, 6/08/2020, 3 pages
• 18. OT Progress Report, 9/19-5/20, 2 pages
• 19. REDACTED Progress Report, 2019-2020, 8 pages
• 20. Parent Request for Reevaluation 6/12/2020 1 page
• 21. Prior Notice Package for Parentally Placed Student, 6/12/2020 3 pages
• 22. Email from Parent, 12/18/2020, 1 page
• 23. IESP 5/26/2021, 14 pages
• 24. IESP Attendance Page, 5/26/2021, 1 page
• 25. Prior Notice Package for Parentally Placed Student, 5/26/2021 3 pages
• 26. OT Progress Report, 5/2021, 6 pages
• 27. Neuropsychological Evaluation, Undated, 1 page
• 28. Findings of Fact and Decision, 7/1/2021, 11 pages
• Parent Exhibits A. Parent’s Hearing Request, 9/27/21, 12 pages B. Individualized Education Services Program, 09/05/18, 10 pages C. Individualized Education Services Program, 06/05/20, 7 pages D. Individualized Education Program, 07/22/21, 24 pages E. Neuropsychological Evaluation, 05/2021, 23 pages F. Academic Assessment, 10/06/21, 1 page G. Speech and Language Evaluation, 10/08/21, 23 pages H. Occupational Therapy Evaluation, 10/27/21, 22 pages I. Ten Day Notice Letter, 08/13/21, 3 pages J. School Contact, 2021-2022, 6 pages K. REDACTED School Description, 2021-2022, 9 pages L. Student Schedule, 2021-2022, 1 page M. Progress Report, 2021-2022, 3 pages N. Tuition Document, 10/28/21, 1 page O. Resume of REDACTED, Undated, 9 pages P. Resume of REDACTED, Undated, 2 pages Q. Resume of REDACTED, Undated, 1 page R. Resume of REDACTED, Undated, 3 pages S. Affidavit of REDACTED, 11/22/21, 9 pages

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.

Footnotes

[1] This Order was accepted into evidence on November 29, 2021 as IHO Ex. “I” and should have been IHO Ex. “VI”.

[2] At the prehearing conference Parent’s counsel acknowledged that this IHO does not have the authority to award attorney’s fees, and explained that such request has to be in the DPC in order to recoup attorney’s fees (Tr. 8).

[3] Even though’ Parent’s counsel stated in his opening statement that the Student continued to be classified as Other Health Impaired, despite his diagnosis of Autism Spectrum Disorder, the Student’s classification was not raised as an issue in the DPC or addressed in the Parent’s Closing Statement (Tr. 71).

[4] See, e.g., M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) holding that when a school district knows or should know that a disabled child’s program is deficient yet fails to correct it, the child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the program. See also: Manchester Sch. Dist. V. Christopher B., 807 F. Supp. 860 (D.N.H. 1992).

[5] See, e.g., Reid v. Dist. of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (adopting a flexible, fact-specific approach in which the ultimate award is reasonably calculated to provide the educational benefits that likely would have occurred from special education services that the school district should have supplied in the first place).

[6] See, L.O. v. New York City Dep’t. of Educ., 822 F.3d 95 (2d Cir. 2016) (remanding to the district court to determine whether the student is entitled to relief by “’leav[ing) the mechanics of structuring the compensatory education award to the [D)istrict [C)ourt’s sound discretion’”); Doe v. East Lyme Board of Educ., 700 F.3d 440 (2d Cir. 2015 (remaining to the District court to decide whether compensatory education should be limited to the kinds of services specified in the student’ contested IEP or encompass analogous educational services appropriate to the student’s current needs).

[7] See, e.g., Student X. v. New York City Dep’t. of Educ., 51 IDELR 122 (E.D.N.Y. 2008) (noting that the Second Circuit has not adopted a test for determining how to calculate an award of compensatory education but awarding hour-for-hour).

[8] NYCRR 175.5 provides that students are to receive a minimum of 180 days of instruction per school year, which equals thirty-six (36), five (5) day weeks. School districts must be in session for all students, including students with disabilities, for not less than 180 days. Included in the 180 days are days on which attendance is taken, days on which Regents examinations, State Assessments or local examinations are given and days on which superintendent's conference days are held. School year session days counting toward the 180 day requirement may not be scheduled on any day in July or August, except that superintendents conference days may be scheduled during the last two weeks of August. Session days should not be scheduled after the June Regents examination period.

New York City Department of Education, Impartial Hearing Decision

ORDER