NY IHO #224344: New York City... | Special Education Law

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CASE NUMBER: 569736 - NYC: 224344

FINDINGS OF FACT AND DECISION

Case Number:

224344

Student’s Name:

Redacted

Date of Birth:

Redacted

District:

REDACTED

Hearing Requested By:

Parent

Dates of Hearing:

April 13, 2022

May 3, 2022

Actual Record Close Date:

June 29, 2022

Hearing Officer:

Suzanne M. Carter

Appearances

Redacted

I. Introduction- Procedural History

On February 7, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of Student. On March 21, 2022, a prehearing conference was held but the DOE failed to appear. On March 23, 2022, Parent moved for the IHO to recuse alleging that the IHO was not adhering to the statutory timeframe to resolve her complaint.^[1] The motion was subsequently withdrawn on the record. Tr. 12. Next, on April 5, 2022, the DOE moved for partial summary judgment for claims concerning the 2018/19 extended school year. On April 8, 2022, Parent opposed said motion.

Impartial hearing took place on April 13 and May 3, 2022. Admitted Department Exhibits and Admitted Parent Exhibits are listed at the end of the decision. Both parties submitted closing briefs that are made part of the record. The IHO issued an interim order regarding Student’s assistive technology device. IHO Ex. I^[2]

II. Background In the due process complaint, Parent alleges the New York City Department of Education (DOE) failed to offer Student a free appropriate public education (“FAPE”) for the 2018/2019, 2019/2020, 2020/2021, and 2021/2022 extended school years (“ESY”) based upon multiple procedural and substantive violation of the IDEA. Parent requested, inter alia, direct payment for Student’s unilateral placement at Private School, transportation costs to Private School, independent evaluations in all areas of need, and compensatory education.

Student has multiple impairments that affect her cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, sensory, perceptual and motor abilities, psychosocial behavior, physical functions, information processing and speech. She is nonverbal and nonambulatory, thus requiring requires special education and related services.

At the time of hearing, she was attending Private School as the result of a unilateral placement in April 2020. Prior to the unilateral placement, Student attended a D75 school in a 12:1:1 classroom with related services.

III. Findings of Fact and Conclusions of Law

• Department Motion on Partial Summary Judgment for 2018/19 SY is Denied Parent procedurally opposes the DOE's motion for partial summary judgment on the 2018/19 ESY pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure on the premise that formal rules of evidence and civil procedure “do not apply” in impartial hearings.^[3] The prevailing standard is generally these formal rules do not apply but nothing precludes their application if needed to exclude evidence found to be irrelevant, immaterial, unreliable, or unduly repetitious. 8 NYCRR 200.5[j][3][xii][c]; see 34 C.F.R. § 300.181[o]. In fact, Application of a Child with a Disability, Appeal No. 04-018 recognized a motion for summary judgment could be used in IDEA proceedings in certain circumstances if there is a lack of any genuine issue of material fact and both sides have had an opportunity to present evidence.

The DOE moves for summary judgment only for the 2018/19 ESY on the grounds that Parent’s claim is time-barred.^[4] For claims arising under the IDEA, a parent must file a due process complaint within two years of the claim’s accrual date, which commences when the parent knew or should have known about the alleged denial of FAPE. 20 U.S.C. § 1415(f)(3)(C). The two-year requirement does not apply under the following circumstances. One, when “a parent was prevented from requesting the hearing” on account of: “(i) specific misrepresentations by the local educational agency that it had resolved the problem forming the basis of the complaint.” 20 U.S.C. § 1415(f)(3)(D). See Bd. of Educ. of N. Rockland Cent. School Dist. v C.M., 16-cv-3924 (VB), 2017 WL 2656253, at *9 (S.D.N.Y. 2017). Two, “the local educational agency’s withholding of information from the parent that was required under this subchapter to be provided to the parent.” Id. Thus, the IDEA's two-year statute of limitations must be tolled if a parent did not know of her rights because of a school district's failure to provide procedural safeguard notices. Y.A. v. N.Y. City Dep't of Educ., 2016 U.S. Dist. LEXIS 187960, 2016 WL 5811843, at *8 (S.D.N.Y. Sept. 21, 2016). Even if the claim is time-barred, that does not prevent a remedy to make the student whole. On summary judgment, the court accords all reasonable inferences in favor of the nonmoving party. See N.J. v. N.Y.C. Dep't of Educ., No. 18-CV-6173 (JMF), 2021 U.S. Dist. LEXIS 47980 (S.D.N.Y. Mar. 15, 2021)

The date of the IEP meeting can serve as the date claims to start accrual. See F.L. v. Bd. of Educ. of Great Neck Union Free Sch. Dist., 274 F. Supp. 3d 94, 113-14 (E.D.N.Y. 2017). Or, the claim arises when a parent learns of the “critical facts” needed to evaluate whether the student is making appropriate progress in light of her abilities. See K.H. v. N.Y.C. Dep't of Educ., 12-CV-1680, *33 (ARR) (MDG) (E.D.N.Y. Aug. 6, 2014).

Because neither submitted a statement of undisputed facts, the IHO had to glean the following facts from the pleadings, testimony, and admissible materials submitted by the parties.

2018/19 ESY facts

• An IEP dated November 15, 2017 was the operative IEP the 2018/19 ESY beginning July 2018. Ex.1.
• It contained the following mandates for 12-month 12:1+1 classroom program in a D75 school: (a) Occupational therapy (OT) in a group setting, 3 times per week, 30-minutes per session; (b) Parent counseling and training as needed; (c) Physical therapy (PT) in an individual setting, 3 times per week for 30-minute sessions; (d) Speech and Language therapy (SLT) in an individual setting, once per week for a 30-minute session; and (e) speech and language therapy (SLT) in a group setting, twice per week for one 30-minute session. Ex. 1.
• A lift bus for transportation was provided. Ex. 1.
• Parent expressed concerns that Student did not have an individual paraprofessional at the November 2017 IEP meeting. Tr. 72-74.
• An IEP meeting was held on November 5, 2018. Ex. 2.
• The Present Levels of Performance stated: “current speech mandate should remain at two group sessions and one individual session per week (2x30:3, 1x30:1). Ex. 2 at p. 3.
• The resultant IEP did not have a speech language mandate nor a parent training mandate. Ex. 2.
• The IEP did not have a signature page to indicate who attended the meeting. Ex.2
• Parent could not recall whether she expressed concerns at the November 5, 2018 meeting. Tr. 77.
• The prior written notice (PWN) dated 12/1/2018 indicated a classroom observation had been conducted on February 24, 2016. Ex. 15.
• The November 5, 2018 IEP was amended in February 2019. Ex. 39 at p. 26
• The February 2019 IEP lacks a signature page. Ex. 39 at p. 29.
• SLT individual 1x30 minutes and SLT group 2x30x3 mandates were added to the February 2019 IEP. Ex. 39.
• The IEP contained three communication and speech language goals. Id.
• It was reported that Student made little progress on these goals. Id.
• The DOE did not introduce into evidence a meeting notice for the February 2019 IEP amendment.
• An IEP was developed on a date unknown to be implemented on May 14, 2019. Ex. 4.
• The DOE did not introduce into evidence a meeting notice for the IEP to be implemented on May 14, 2019.
• Placement was in a 12-month 12:1+1 classroom program in a D75 school. Ex 4.
• The IEP mandated (a) OT individual 3x30 minutes (b) Parent counseling and training four times yearly; (c) PT individual 2x30 minutes; (d) SLT individual 1x30 minutes; and (e) SLT group 2x30x 3. Ex. 4
• It also recommended a dynamic display speech generating device (SGD) for implementation into the existing school program. Ex. 4.
• The IEP did not have a signature page to indicate who attended the meeting.
• Parent became aware of Private School at a wheelchair clinic. Tr. 59-60.
• In March 2021, Student underwent a preadmission assessment at Private School. Tr. 101.
• Student started Private School in April 2021. Tr. 60.
• Student began making progress at Private School. Tr. 60.
• The DOE failed to resolve the creation of two IEPs that were to be implemented on December 3, 2018. Ex. 6, 39
• The DOE did not proffer any witness testimony in support of its motion.

In the light most favorable to Parent who is the nonmoving party, I find that Parent’s claims began to accrue in March 2021 when Student had a comprehensive assessment at Private School revealing her deficits. Parent’s testimony that she expressed concerns about Student’s progress and reached out to the school do not sufficiently demonstrate Parent was fully aware of Student’s deficits. The extent of Student’s deficits that resulted from substantively inadequate IEPs only came to light in March 2021. Therefore, the DOE motion for partial summary judgment concerning the 2018/19 school year is denied.

• Student was Denied a FAPE for 2019/20, 2020/21, 2021/22 ESYs Generally in the impartial hearing, the district “shall have the burden of proof, including the burden of persuasion and burden of production, except that a parent … seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” NY Educ. Law § 4404(c)(1). Therefore, the hearing is governed by the three-part Burlington/Carter test: “(1) the DOE must establish that the student's IEP actually provided a FAPE; should the DOE fail to meet that burden, the parents are entitled to reimbursement if (2) they establish that their unilateral placement was appropriate and (3) the equities favor them.” M.W. v. New York City Dep't of Educ., 725 F.3d 131, 135 (2d Cir. N.Y. 2013) (footnote and citations omitted).

The DOE failed to meet its burden of proof when it did not present any testimony regarding the appropriateness of Student’s program for the above school years. Therefore, Student was denied a FAPE.

• Private School is an Appropriate Placement Under New York law, the burden of proof falls upon the parents to show that their unilateral placement at a private school was appropriate. See Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 58 (2005) (concluding that “the burden of persuasion lies where it usually falls, upon the party seeking relief”); N.Y. Educ. L. § 4404(1)(c) (placing the burdens of production and persuasion as to the appropriateness of a unilateral placement on the parents). Thus, New York parents who believe that the state has failed to offer a FAPE act “at their own financial risk” when they choose to enroll their child in a private school. A.C. & M.C. ex rel. M.C. v. Bd. of Educ., 553 F.3d 165, 171 (2d Cir. 2009) (citation omitted).

The standards for determining whether a private school placement is “appropriate” under the IDEA closely resemble, but do not mirror, the standards for assessing the adequacy and appropriateness of the proposed public placement. The Second Circuit has explained that “subject to certain limited exceptions, the same considerations and criteria that apply in determining whether the school district’s placement is appropriate should be considered in determining the appropriateness of the parents’ placement.” Gagliardo v. Arlington Central Sch. Dist., 489 F. 3d 105, 112 (2d Cir. 2007) (citation omitted). “The issue turns on whether a placement -- public or private -- is reasonably calculated to enable the child to receive educational benefits.” Id. (citation omitted). “A private placement meeting this standard is one that is likely to produce progress, not regression.” Id. (citation omitted). “Nevertheless, parents are not barred from reimbursement where a private school they choose does not meet the IDEA definition of a free appropriate public education,” and “[a]n appropriate private placement need not meet state education standards or requirements.” Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir. 2006) (citation omitted). Moreover, “a private placement need not provide certified special education teachers or an IEP for the disabled student,” and “parents may not be subject to the same mainstreaming requirements as a school board.” Id. (citation omitted). “[T]he test for the parents’ private placement is that it is appropriate, and not that it is perfect.” Id. (citation omitted). Ultimately, the standard to be applied is to determine whether “[the] unilateral private placement... provides education instruction specifically designed to meet the unique needs of a handicapped child.” Gagliardo, 489 F.3d at 115 (citation omitted). Under the IDEA, "'a child's academic progress must be viewed in light of the limitations imposed by the child's disability'" H.C. v. Katonah-Lewisboro Union Free Sch. Dist., No. 09 Civ. 10563 (S.D.N.Y. May 24, 2012) (citation omitted).

Student began attending Private School in April 2021. Contrary to the DOE’s contention, the Private School IEP (Ex. K) provided a comprehensive picture of Student and her educational needs as compared with the DOE IEP that was to be implemented on November 2, 2020. Ex. 5.

For example, the DOE misclassified Student as having an intellectual disability.^[5] Ex. 5-1. The better classification for Student is multiple disabilities.^[6] DOE placed Student in a 12:1:1 classroom. This classroom ratio is for students whose management needs interfere with the instructional process, to the extent that an additional adult is needed within the classroom to assist in the instruction of such students. Student should have been placed in 12:1 + (3:1) classroom for students with severe multiple disabilities like herself. This classroom ratio would have allowed for additional adult support such as related service providers. Despite not being toilet trained, there was no goal for toileting. The IEP did not mandate a dynamic display speech generating device. The CSE failed to consider a one-to-one aide for Student.^[7]

Second, Private School demonstrated it is appropriate as follows. According to the testimony of Parent, the student had diagnoses of REDACTED. Tr. 54-55. The student's needs are set forth in the October 2021/April 2022 IEP Private School IEP Ex. K at pp. 1-11.

According to the Private School October 2021/April 2022 IEP, Student had severe impairments in her cognition, language, memory, attention, reasoning, abstract thinking, judgment, problem solving, visual functioning, information processing and speech. Ex. K at pp. 2, 11). Student was nonverbal and utilized a total communication approach, consisting of utilizing facial expressions, gestures, sign language, 1–2-word verbal approximations, and high-tech augmentative and alternative communication (AAC) devices to express her wants/needs and participate in daily routines. Id. at p. 4.

Student demonstrates curiosity and motivation to explore her environment. She enjoys music, toys with auditory feedback and light up, and watching television. She will pick up and examine objects in her field of vison. She is highly social and will greet familiar and unfamiliar adults. She is able to navigate an iPad with speech generating software to create three-word sentences (for example, “I like that”), greet peers and adults, state the weather and identify uppercase letters of her name. She is able to shake her head to indicate “no,” and say “yeah” and “hi” when greeted by an adult. Id. at p. 3.

Turning to Student’s learning profile, she benefits from consistent 30-minute individual sessions twice a day. She also benefits from a direct instruction model in order to address her individual needs, provide multisensory supports and to make modifications needed due to executive function challenges. Due to her sensory needs and the intensive nature of her schedule, the 30-minute sessions are essential to her progress by allowing for necessary breaks, programing, processing time and collaboration with teachers/parents/paraprofessionals/therapists. Concepts must be repeated and frequently revisited in order for her to retain skills and knowledge and attain mastery. The IEP indicated that the student required increased time to perform multiple repetitions of a task for motor learning, with extended time to process verbal prompts, and intervention to improve strength and control for the development of functional skills. Ex. K at p. 3.

According to testimony by the Private School's director of special education, the student was enrolled at Private School at during the period at issue Tr. 90. The director reported that Private School is a private, not-for-profit, specialized special education program for students ages five through 21 with acquired brain injuries or brain-based disabilities. Private School offers a 12-month extended school-year calendar and offers all services during its extended school day. The program is interdisciplinary and many of the students it serves are non-ambulatory and non-verbal. The director indicated that every student at Private School requires a 1:1 paraprofessional to assist them with activities of daily living and to help them access and benefit from the educational program. The school has classrooms with 6:1+1 or 8:1+1 ratio for students who have either intensive or highly intensive management needs and who require a significant degree of individualized attention and intervention.

Private School's director of education also testified that the school provides its students with individualized education plans aimed at improving functioning skills appropriate to their cognitive, physical, and developmental levels through a collaborative and multi-disciplinary approach incorporating best practices from the medical, clinical, and educational fields. Ex. K. The practices include direct instruction, cognitive strategies, compensatory education, behavior management, physical rehabilitation, therapeutic interventions, social interaction, and transition services. Ex. K at p. 2).

With respect to related services, the Private School director of education testified that the school provides OT, PT, speech-language therapy, vision education, assistive technology services, parent counseling and training, and services for the deaf and hard of hearing. She indicated that the therapy services were designed to support the student's education and were provided generally in 60-minute intervals using a push-in and pull-out model to address the student's therapeutic goals in multiple locations as a means to encourage generalization of skills.

The student's recommended Private School program included multiple annual goals with accompanying short-term objectives/benchmarks Ex. K at pp.28-47. Two paraprofessional goals are included. Specifically, to address this student's needs the October 2021/April 2022Private School IEP detailed the student's plan and recommended that the student attend a 12-month 8:1+1 class with a 1:1 paraprofessional Ex. K at pp. 51. Additionally, the student's program included one group and four individual speech-language therapy sessions per week for 60 minutes per session, five individual sessions of PT per week for 60-minutes per session, five individual sessions of OT per week for 60-minutes per session, two individual session of assistive technology per week for 60-minutes per session, one individual sessions of vision education services per week for 60-minutes per session, and one session of individual/group parent counseling per month for 60-minutes Speech-language therapy, OT, PT, assistive technology, and vision education services were recommended to be both push-in and pull-out services based on the activity. The Private School IEP also recommended the use of individual assistive technology devices, daily, throughout the day across all environments and adaptive seating. Supports for school personnel on behalf of the student included two-person transfer training as well as training for vision adaptations and functioning, and assistive technology.

Student also receives music therapy. She “appears to enjoy music and responds to various instruments and sound.” Ex. K at p. 53. However, neither the music therapist nor the director of related services testified as to why music therapy is required for Student to make progress. I find that the annual goals for music therapy could be met through other related services and incorporation of music into those services and classroom instruction Therefore, payment for music therapy is denied.

As discussed above, the evidence in the hearing record supports a finding that Private School’s provision of a small class size, as well as all of the related services the student required, academic instruction commensurate with her abilities and 1:1 support, constituted specially designed instruction which addressed his unique individual needs while providing her with educational benefit. Contrary to DOE’s contention, the Private School IEP identified Student’s teachers and related service providers and their credentials as necessary. Ex. K at p. 52. While testimony from Student’s teacher would have been ideal, the IEP is comprehensive providing a complete picture of Student’s abilities, needs, and goals.

As the testimony and documentary evidence show, Student has progressed, not regressed. Private School was an appropriate placement for periods April 2021through June 2021 and July 2021 through June 2022.

• Equitable Considerations The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations.

But reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice 10 business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision. Greenland, 358 F.3d at 160.

• Ten-day Notice The DOE argues that Parent’s ten-day notice dated April 16, 2021 lacks sufficient information as to Parent’s disagreement with the DOE’s program and placement.^[8] Ex. C. In its closing brief, the DOE cited to another SRO decision where the IHO determined the notice was “overly vague”. ^[9] Herein, Parent has sufficiently pled that she disagrees with the classroom ratio, quantity/duration of related services, and school location. Despite its alleged vagueness, the DOE responded after expiration of the ten-day period that the unilateral placement was not appropriate for settlement and urged Parent to file a due process complaint thus undercutting its argument for vagueness. Ex. D. It did not take any opportunity to review its program and recommendations with Parent. For 2021/22 ESY, Parent submitted a ten-day notice dated June 23, 2021. Ex. R. The DOE did not deign to respond, thus leaving Parent with no other alternative but to enroll Student at Private School.
• Direct payment
• The next issue is tuition reimbursement/direct payment. Parent is seeking retroactive direct tuition payment relief for Private School. See Mr. and Mrs. A., 769 F. Supp. 2d at 428; see also A.R. v. New York City Dep't of Educ., 2013 WL 5312537, at *11 [S.D.N.Y. Sept. 23, 2013]). Parent is contractually obligated to pay Private School tuition and related services. Ex. --; Tr. 68-69. But no testimony was elicited regarding her financial resources. It appears that Parent paid only the $100 nonrefundable deposit for each school year in question. Ex. G, O. The IHO presumes that her financial resources did not permit any further payments for tuition. Parent is entitled to direct tuition payment to Private School for the period from April 2021 to June 2021 and July 2021 to June 2022 with proofs of attendance.
• Related Services Part B of the IDEA (Part B) requires State educational agencies (SEAs) to assure that FAPE is available to all children with disabilities within specified age ranges. 20 U.S.C. § 1412. The term "free appropriate public education" means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 614(a)(5). 20 U.S.C. § 1401(a)(18). Public agencies, however, in meeting their obligation to provide special education and related services without charge, "may use whatever State, local, federal and private sources are available in the State to meet the requirements of this part." 34 CFR § 300.301(a). This regulation also provides that "[n]othing in this part relieves an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a [child with a disability]." 34 CFR § 300.301(b).1 Based on the above regulations, it is permissible for school districts to access sources other than Part B funds to pay for the cost of required special education and related services for children with disabilities. However, use of parents' insurance proceeds must be voluntary in circumstances where parents would incur a realistic threat of a financial loss.

Private School charges an hourly rate for Student’s various related services. Parent did not elicit any testimony regarding the billing for related services. Nor was there any testimony as to whether the providers are employees or independent contractors. Finally, there was no testimony as to whether the Private School sought Parent’s permission to bill Parent’s insurance if available or asked Parent to complete The Request for Consent for Medicaid Reimbursement.

Upon submission of contemporaneously made service records, I find that the lower of the Medicaid rate or lowest amount paid by the district to the same provider for comparable services for the corresponding CPT code during the school years at issue.

• Transportation Agreement An agreement between two parties is a contract of adhesion when "[it] contains terms that are unfair and nonnegotiable and arises from a disparity of bargaining power or oppressive tactics." Molino v Sagamore, 105 AD3d 922, 923 (2d Dept 2013), quoting Matter of Love'M Sheltering, Inc. v County of Suffolk, 33 AD3d 923, 924 (2d Dept 2006); see VP Vil. Park, LLC v Victor, 40 Misc 3d 1233[A]. In evaluating whether a contract is one of adhesion, a court must consider the following factors: (1) whether the contract involves a necessity of life; (2) whether the contract terms excessively benefit the offeror; (3) whether the contract provision provides an economic or other advantage to the offeror; and (4) whether the proposed contract is offered on a take it or leave it basis. See Spring Val. Gardens Assoc. v Earle, 112 Misc 2d 786, 787, (Rockland County Ct 1982) (citation omitted).

Here, the transportation agreement involved a necessity of life – transportation of a child with multiple disabilities to a nonpublic school for special education. Ex. I. The DOE conceded it did not/would not provide transportation for Student while attending her unilateral placement, an abdication of its legal duties. Private School, however, offered Parent but one option for transportation. The contract that the company required Parent to sign was a contract of adhesion (because the parent had no meaningful opportunity to negotiate any of its terms) and verged on being extortionate given that it required Parent to pay fees “based on SCHOOL DAYS, whether STUDENT used SERVICES or not unless PROVIDER was at fault for STUDENT not utilizing SERVICES.” The Transportation Company understood that Parent would be seeking payment for services from the DOE. It agreed to suspend payment obligations until an administrative or judicial decision is made, and then payment will become immediately due within thirty (30) days of the adjudication or execution of a Stipulation Agreement. If Parent did not prevail, payment would be suspended Parent had exhausted all legal remedies available to them to secure third party funding, when all payments would immediately become due.

While it seems possible that the Transportation Company may chose not to enforce the financial terms of the contract against Parent if she fails to prevail at a hearing, it chose to draft the document in a manner that puts Parent between a rock and a hard place because Parent had no other choices for transportation. Having Parent pay transportation costs for days that Student did not use the service unjustly enriches the Transportation Company. ^[10] Under a quantum meruit analysis, the amount recoverable will be based on the reasonable value of services that were provided. The provider of such transportation whoever that may be is therefore limited to the New York state Medicaid rate for comparable transportation services for the actual number of days in from April 2021 to June 2022 Student was transported as supported by certified contemporaneously made billing records.

• Independent Educational Evaluations is warranted When a parent requests an independent educational evaluation (IEE) at public expense, the district must, without unnecessary delay, either 1) initiate a due process hearing under 34 C.F.R. § 300.507 to defend its evaluation; or 2) ensure that an IEE is provided at public expense, unless the district demonstrates in a hearing under 34 CFR 300.507 that the requested evaluation does not meet the district’s criteria. The DOE failed to address this issue at hearing; therefore, Parent’s request for an independent neuropsychological evaluation is granted.
• Claim for Compensatory Education is Denied In any action brought under the IDEA, the trier of fact “shall grant such relief as the court determines is appropriate.” 20 USC § 1415(i)(2)(C)(iii). The relief must be appropriate in light of the purpose of the Act. A court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) (internal citations omitted). Compensatory education is a prospective award of educational services designed to catch-up the student to where he should have been if a FAPE had not been denied. Brennan v. Reg’l Sch. Dist. No. 1 Bd. of Educ., 531 F. Supp. 2d 245, 265 (D. Conn. 2007). It requires a flexible approach to determine the services and amount of services needed for remediation. Reid v. District of Columbia, 401 F.3d 516, 521 (D.C. Cir. 2005). See also Bd. of Educ. v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (preferring "a flexible approach, rather than a rote hour-by-hour compensation award to remediate the student”). Moreover, the purpose of compensatory education is not to punish the district. see C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 (3d Cir. Sept. 27,2010) [noting that "[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education."]). In addition, the purpose of any award of compensatory educational services is not to maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need, and it would not serve the needs of the student if the delivery of an award of compensatory educational services only served to overwhelm the student or otherwise adversely impacted the student’s current special education program or services.

Notwithstanding the above, the record must provide sufficient “insight about the precise types of education services [the student] needs to progress.” Mary McLeod Bethune Day Acad. Pub. Charter Sch. v. Bland, 555 F. Supp. 2d 130, 135 (D.D.C. 2008) (citation omitted). Pertinent findings to enable the hearing officer to tailor the ultimate award to the student’s unique needs should include the nature and severity of the student’s disability, the student’s specialized educational needs, the link between those needs and the services requested, and the student’s current educational abilities. Branham v. District of Columbia, 427 F.3d 7, 12 (D.C. Cir. 2005). The DOE has the burden of proof on compensatory education. M.M. v. N.Y.C. Dep't of Educ., 2017 U.S. Dist. LEXIS 47812, at *11 (S.D.N.Y. Mar. 30, 2017)

In this case, the hearing record contained information, as it should have, that related to whether or not the student was offered a FAPE for the 2018/2019, 2019/2020, 2020/2021, and 2021/2022 extended school years (“ESY”) and Student was not offered a FAPE. However, with regard to the relief-an appropriate amount of compensatory education-it fell markedly short in terms of record development.

In support of its burden, the DOE presented the special education coordinator for Student’s assigned public school and testified that it offered a post-remote learning tutoring program for Students who had fallen behind due to the pandemic. Tr. 197. The program was only available if Student were attending the assigned public school. Tr. 218. The DOE failed on its burden of proof because the witness based her testimony on the October 26, 2021 IEP (Ex. 7) that has already been determined not to provided Student with a FAPE.

Failure of the DOE to meet its burden of proof does not automatically mean that Private School is the appropriate form of compensatory education. Parent did not present any testimony as to why two years of tuition at Private School as compensatory education is appropriate.^[11] Therefore, the request is denied. Parent may renew this request for compensatory education upon completion of the neuropsychological evaluation.

Parent also seeks compensatory OT, PT, and SLT services in the amount of 75 hours each. This calculation is based on deficient services from March 2020 to April 2021. I agree that Student was denied sufficient related services. None of Student’s related service providers testified about Student’s deficits at time of entrance to Private School and progress made in each discipline from April 2021 through today. The question of whether Student has “caught up” due to the intensive programming at Private School has not been sufficiently answered. Tr. 104-6. Therefore, Student is entitled to independent evaluations in OT, PT, and SLT to determine the need for compensatory services.

IT IS THEREFORE ORDERED THAT

• Motion for partial summary judgment for 2018/19 ESY is denied.
• DOE shall pay tuition to Redacted for April 2021 to June 2021.
• DOE shall pay tuition to Redacted for July 2021 to June 2022.
• DOE shall pay for special education transportation at New York state Medicaid rate for comparable transportation services for the actual number of days from April 2021 to June 2022 Student was transported as supported by certified contemporaneous billing records.
• DOE shall pay the lower of the New York state Medicaid rate or lowest amount paid by the district to the same provider for related services of OT, PT, SLT, and vision education under the corresponding CPT codes for the school years at issue.
• Payment for music therapy is denied.
• DOE shall fund a neuropsychological evaluation conducted by Parent’s chosen provider at prevailing market rate.
• DOE shall fund independent evaluations in OT, PT, and SLT by Parent’s chosen providers at prevailing market rate.
• Request for compensatory services both academic and related services is denied with leave to renew upon completion of independent evaluations that must address Student’s need for remediation.
• Dated: June 29, 2022
• /s/Suzanne M. Carter ______________________________ Suzanne M. Carter, ESQ.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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.

PARENT EXHIBIT

DATE

DESCRIPTION

NUMBER OF PAGES

A 02/07/2022 Due Process Complaint – IH # 224344 2021-22 School Year 16

B 10/24/2019 NYC DOE IEP 27

C 04/16/2021 Ten Day Notice 3

D 05/04/2021 NYC DOE Determination Report 1

E 05/13/2021 Transportation Agreement 5

F 06/23/2021 Ten Day Notice 2

G 06/29/2021 Redacted Enrollment Contract 2021-22 School Year 7

H 07/13/2021 NYC DOE Determination Letter 2

I 07/20/2021 Transportation Agreement 5

J 09/30/2021 NYC DOE Social History Update 2

K 04/06/2022 Redacted IEP 53

L 2020-2021 Redacted Schedule 2020-21 School Year 1 O 04/28/2021 Redacted Enrollment Contract 2020-21 School Year 7

P 2021-2022 Redacted Schedule 2022-22 School Year 1 Q June 1, 2022 Parent’s Closing Brief 24 Department Exhibits

EXHIBIT NO.

DATE

DESCRIPTION

NO. OF PAGES

11/15/2017

IEP

11/5/2018

IEP

10/24/2019

IEP

4/30/2019

IEP

10/13/2020

IEP

1/29/2019

IEP

12/18/2018

PWN

5/30/2019

PWN

February 2019

IEP

6/2/2022

Closing Brief

4/5/2022

Declaration In Support of REDACTED

4/5/2022

REDACTED Memorandum

4/6/2022

REDACTED Cover Letter

4/12/22

REDACTED – Parent Opposition

IHO Exhibits

I. Interim Order 5/4/2022 1

Footnotes

[1] This motion was not premised on the prevailing standard for recusal in the Second Circuit. See Chen v. Chen Qualified Settlement Fund, 552 F.3d 218 (2d Cir. 2009).

[2] In its closing brief, Parent advised that Parent’s insurance had approved the device and it was being shipped.

[3] Matos v. Hove, 940 F. Supp. 67 (S.D.N.Y. 1996) is inapposite because it addressed pre-trial discovery in administrative processes.

[4] Typically, a motion for summary judgment includes an enumerated list of undisputed facts. Instead, a factual narrative was provided. Parent did not provide a counterstatement of undisputed facts.

[5] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a child’s educational performance. 34 CFR 308.8(c)(6)

[6] means concomitant impairments (such as intellectual disability-blindness or intellectual disability-orthopedic impairment), the combination of which causes such severe educational needs that they cannot be accommodated in special education programs solely for one of the impairments. 34 CFR 308.8(c)(7)

[7] NYSED. Guidelines for Determining a Student with a Disability’s Need for a One-to-One Aide dated January 2012

[8] Although it appears that Student started at Private School prior to the expiration of the ten-day period on April 30, 2021, the one-day difference did not place the DOE at a disadvantage. There is no penalty to Parent for this presumed unintentional miscalculation.

[9] It was inappropriate for the DOE to cite to an impartial hearing decision involving a different student. Moreover, another IHO’s determination is not persuasive authority, much less binding.

[10] Parent failed to submit any billing statements from Transportation Company.

[11] Draper v. Atlanta Indep. Pub. Sch. 518 F.3d 1275 (11th Cir.2008) awarded four years of private school tuition to an 11th grade student who was reading at a third-grade level. He had been misdiagnosed with mental retardation.

New York City Department of Education, Impartial Hearing Decision