NY IHO #226408: New York City... | Special Education Law

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CASE NUMBER: 573064 - NYC: 226408

FINDINGS OF FACT AND DECISION

Case Number: 226408

Student’s Name^[1]: REDACTED (“Student”)

Date of Birth: REDACTED

School District: # REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 05/13/2021

Date(s) of Hearing: 07/12/2022, and 11/10/2022

Actual Record Closed Date: 12/12/2022

Date of Decision: 12/23/2022

Date of Distribution if Different than Decision Date: n/a

Hearing Officer: Harry A. Christodoulou

NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 12, 2022

For the Student:

REDACTED (hereinafter referred to as “Parent’s representative”)

For the Department of Education (“DOE”):

REDACTED (hereinafter referred to as “District’s representative”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 10, 2022

For the Student:

Parent’s representative

Parent

REDACTED (hereinafter referred to as “Parent’s Witness 1”)

For the DOE:

District’s representative

BACKGROUND AND PROCEDURAL HISTORY

Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.

On July 5, 2022, Parent, through Parent’s representative firm, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Ex. P-A). I was appointed on May 19, 2022, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.

It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parent sought, inter alia, a finding that the DOE denied Student a FAPE for the 2019-2020, 2020-2021, 2021-2022, and 2022-2023 school years (“SYs”), deferral to the Central Based Support Team (“CBST”) for an appropriate approved non-public school placement, and compensatory services (Ex. P-A-12, P-A-12, and P-A-13). At the IH it was confirmed that Parent was no longer pursuing the deferral to CBST but was still pursuing the claim for compensatory services (T. P47, L11-15).

The DPC included a request for an interim order for Independent Educational Evaluations (“IEEs”) (Exhibit P-A-12) and a limited hearing was held on July 12, 2022, to allow both parties an opportunity to present evidence in support of their respective positions regarding that order (T. P4, L17-20). I issued an interim Order on IEEs on July 19, 2022^[2] (Ex. IHO-II), which IEEs were subsequently obtained and included in the record as part of Parent’s disclosure (Ex. P-L through P-Q, and P-T). The IH took place on November 10, 2022.

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[3] and its implementing regulations,^[4] and the New York State Education Law^[5] and its implementing regulations.^[6]

Section 504 requires that recipients of federal funds that operate public educational programs or activities must “establish and implement... a system of procedural safeguards that includes...an impartial hearing with opportunity for participation by the [student’s] parents or guardian and representation by counsel, and a review procedure.”^[7] Impartial Hearing Officers have authority to hear claims under Section 504 of the Rehabilitation Act if delegated the authority by the Local Education Agency (LEA). The DOE delegated to the New York City Office of Administrative Trials and Hearings (“OATH”) the authority to adjudicate due process complaints under Section 504.^[8]

PARTIES’ POSITIONS AND CASES PRESENTED

District’s representative confirmed at the IH that the DOE was: not putting on a case only in the sense that the DOE was not calling any witnesses, but it was putting forward documents for admission to the record and would “rest on the documents or evidence”; and that the DOE was not conceding “Prong I”, namely that it failed to provide Student with a FAPE for the SYs at issue (T. P45, L6-25, P46, L1-5).

District’s representative made a brief opening address reserving the DOE’s right to cross-examine Parent’s witnesses and to call rebuttal witnesses (T. P47, L12-20). District’s representative submitted nineteen documents in support of the DOE’s case. Fourteen exhibits were admitted to the record at the IH (and are listed below) after confirming with the Parent’s representative that there were no objections to those documents being admitted into evidence (T. P47, L21-25). The documents that were not admitted were duplicates that were included in Parent’s document disclosure. District’s representative confirmed that the DOE rested its case (T. P48, L22-24) and waived a closing statement (T. P75, L1-4).

Parent, through the Parent’s representative, submitted an additional twenty-two documents in support of the Parent’s case for the main hearing. Five exhibits had previously been admitted at the limited hearing. All twenty-two exhibits were admitted to the record at the IH (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence (T. P46, L12-14; P50, L21-25; P51, L1-4; P63, L17-21; P70, l22-25; P71, L1-3).

Parent’s new disclosure includes the unsigned affidavit of Parent and a signed affidavit of one witness in support of Parent’s case, namely, Parent’s Witness 1. This affidavit was admitted to the record once Parent’s Witness 1 joined the IH, as Parent’s Witness 1’s attendance was required for cross-examination (T. P64-68) and Parent was in attendance and testified (T. P71-P74). Thereafter, Parent’s representative confirmed that Parent rested its case (T. P74, L19-23).

In a combined opening and closing statement, Parent’s representative inter alia addressed (T. P51, L14-25; P52-P61; P62, L1-2; P75, L12-13): Background regarding Parent, Student, and Student’s past diagnosis, presenting delays, deficits, and lack of progress leading to Student’s classification and programs provided for past SYs, linking it to prior IEPs for those SYs (Ex. P-K; P-J; P-I); that based on the new data obtained pursuant to the Ordered IEEs, the District realized that the program and placement was inappropriate for Student and sent the case to the CBST; that Parent and Student are actively visiting at least two school at the time of the IH; how bullying and social difficulties that occurred was related or linked to headaches Student experienced, and other emotional and psychological disturbance, leading to a placement recommendation in a smaller class setting, with services as part of the recommended program; how the placement recommendation still did not change in the next CSE review, despite numerous issues at the time causing Student to be unable to access Student’s education; how the program provided during the Covid-19 school closures as well as the subsequent blended learning program that was made available was ineffective for Student, given Student’s learning struggles, providing no academic benefit; Student’s later Diagnosis (defined on page 30) and need for a comprehensive evaluation, including a neuropsychological evaluation; Student’s lack of participation in remote learning, difficulties regulating emotions, and not engaging in academic learning being raised at the February 2021 IEP meeting, without it leading to a different placement and program recommendation; how Student’s challenges continued into the 2021-2022 SY without any help or solution, and the same placement and program recommendation being maintained; Parent’s letter requesting IEEs; the evaluative data then obtained, including a comprehensive compensatory services plan prepared by a team of licensed professionals in their respective areas of expertise; and the relief sought based upon those professionals’ recommendations.

PREVAILING PARTY

Parent is the prevailing party, and an award or Order is granted in favor of Parent.

LEGAL FRAMEWORK

A FAPE is offered to a student when: (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits^[9].

If a procedural violation is alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits^[10].

The IDEA directs that, in general, an IH officer's decision must be made on substantive grounds based on a determination of whether the student received a FAPE^[11].

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[12]. To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school board or other authorities failed to implement substantial or significant provisions of the IEP^[13]. Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material"^[14].

The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student.^[15]

The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.^[16]

Section 504

Section 504 prohibits discrimination against qualified students with a disability.^[17] Section 504 states, “[n]o otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”^[18]

Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].”^[19]

Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to [504’s] procedures.”^[20]

Under Section 504, an individual with a disability includes any person who: “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.”^[21] However, only students who have a substantial limitation of a major life activity are entitled to a FAPE.^[22] Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others.^[23]

Districts must conduct “periodic” reevaluations of students who are eligible under Section 504. Compliance with the IDEA’s reevaluation procedures is one way of complying with this requirement. ^[24]

When making decisions about services and supports for a student, Section 504 requires that districts “draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior.”^[25] Additionally, districts must ensure that information from these sources is “documented and carefully considered.”^[26] Placement decisions must also be made “by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options.”^[27]

Burdens

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 – which is applicable in this case.^[28]

Parents bear the burden of proof, both in production and persuasion, on any claim under Section 504 of the Rehabilitation Act.^[29]

FINDINGS OF FACT AND DECISION

[I] Denial of a FAPE:

The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”^[30]

Although the DOE has not conceded that it failed to provide Student with a FAPE for all the SYs in issue, it elected not to call any witnesses to testify to offer any explanation let alone a “cogent and responsive” one, instead relying on documents submitted into evidence. As such, I have sought to determine if the programs provided for those SYs were reasonably calculated to enable Student to make progress appropriate in light of Student’s circumstances, based on a preponderance of the evidence which includes all the evaluations on record as well as the testimony of Parent and Parent’s Witness 1. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,^[31] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’” (my emphasis).^[32] The IEPs must have been “reasonably calculated to provide some ‘meaningful’ benefit.”^[33]

Student’s Diagnosis and the impact it has had on Student learning and ability to progress is well documented in the IEPs (Ex. DOE-1, DOE-2, DOE-3, DOE-10, and DOE-14), the evaluations conducted (Ex. DOE-5, DOE-6, DOE-7, and P-L through P-S) Student’s progress report (Ex. DOE-8), the Compensatory Services Plan prepared for the Student (Ex. P-T) and the affidavits submitted (Ex. P-U, and P-AA).

It is unsurprising that in the face of such overwhelming evidence, that the District chose not to put on a case (outside of resting on the documents) to prove that the Student was provided with a FAPE for the SYs in issue. Although not the Parent’s obligation in the first place, Parent has made out a compelling case that the District denied the Student a FAPE for all SYs in issue, causing a deprivation of educational benefits and the District has not met its burden in this regard.

Parent testified^[34] (Exhibit P-AA) inter alia that:

Student is smart, but has been bullied terribly for many years and struggled without the support needed for such a long time; that Student pulled away from school, started having terrible headaches, and became so unhappy and anxious; Student would not even turn the camera on for the home instruction; Student was capable of doing so much more and needs supports; without an intense program, Student will not be able to succeed despite being so smart; Student is so far behind and so scared, Student rarely leaves the apartment; Student’s academic skills and independent living skills are so far behind.

The DOE did not take Student’s needs seriously and watched as Student retreated from school and others, became more unhappy, and fell further and further behind; Student must be provided the school program that “we all now agree [Student] needs, a small class in a specialized nonpublic school with lots of support. However, [Student] also must be provided a very intensive make up program outside of school as well”.

Parent’ Witness 1 testified (Exhibit P-U) inter alia that: In reviewing Student’s educational records, Witness was able to form an opinion of Student’s programs offered by the DOE; Witness concluded that there were more than enough indicators that should have resulted in providing Student with many more specific supports Student required which may have avoided Student’s academic failures to date; Witness concluded that Student’s social/emotional deficits have historically impacted Student’s ability to access the curriculum; given a history of bullying, Student became significantly school avoidant and was even non-participatory during remote learning as a result of the pandemic when in-person learning shifted; and it was clear that there were many indicators that Student was not progressing to align with Student’s cognitive abilities.

Based on the analysis and findings of Parent’s Witness 1, as well as the Reviewers (defined on page 30), I am unable to find that the District offered or provided “personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction"^[35], for the SYs in issue. The District cannot abdicate its responsibility to develop an IEP based upon the unique circumstances of the Student^[36]. If a district knows or has reason to believe that a student will require certain services, it must evaluate the student’s needs and offer appropriate supports in a timely manner^[37]. The District had and still has an affirmative obligation to offer the student a FAPE^[38]. With certain exceptions, a student’s IEP is required to be reviewed periodically, but not less frequently than annually, and revised as appropriate^[39] (my emphasis).

2019-2020 SY:

Three IEPs were developed for Student where the implementation period relates to this SY, developed pursuant to IEP meetings held on March 26, 2019, November 12, 2019, and February 3, 2020, respectively (Ex. DOE-1; DOE-2, and DOE-3). It does not appear based on the list of records reviewed (Ex. P-T-4) that Parent’s Witness 1 considered the revisions to the program that was developed on November 12, 2019 (Ex. DOE-2).

Regarding the two programs Parent’s Witness 1 had sight of, the following comments are noted in Parent’s Witness 1’s report^[40]:

As regards Ex. DOE-1:

“a. Instructional/Functional Level – Reading – 5th grade; Math – 5th grade), and yet the Evaluation Results reported [Student] to be “Beginning of a 5th grade level” for ELA and “Beginning of a 5th grade level” for Math. [Student’s] other Evaluation Results were very poor (Math: 16/100; and 10/30; Writing: 1/4; and Science: 1) b. PLOP- reported multiple instances of difficulty with executive functioning (i.e., inability to stay on task; inability to focus; time management skills; unable to complete multi-step word problems). “[Student] works well independently with support…” – conflicting information such as this calls into question the validity of the reporting in the IEP. c. Goals – no executive functioning goals were developed; goals that were developed for ELA/Math were multiple targets, rendering them immeasurable. d. SETSS – indirect services were mandated for ELA – is unclear why this was necessary if the district was of the opinion that [Student] was on grade level – this is a clear indication that the report did not align with [Student’s] abilities. However, that said, the frequency was insufficient, as was the delivery method.

Further to the above, it is clear that [Student] was demonstrating deficits in Reading, Writing, Math, and Executive Functioning. The SETSS that was provided was insufficient to target [Student’s] deficits appropriately. [Student] required 1:1 remediation by a Reading Specialist and 1:1 remediation for Mathematics.”

As regards Ex. DOE-3^[41]:

“a. Instructional/Functional Level – Reading – 6th grade; Math – 5th grade (1 year below grade level), and yet the Evaluation Results were very poor scores (ELA baseline – 31.8%; Vocabulary and Spelling: 60%, 50%, 20%, 60%; Math: 36%, 5/10; and 3/10). Additionally, for WIATT-III (October 2019), [Student] scored Below average in Mathematics Composite and Numerical Operations. The Degrees of Reading Power assessment reported [Student] was “equivalent to a 9th grade reading level”, a significant discrepancy from the other reported scores. b. PLOP- despite the reported scores in the Evaluation Results, the PLOP reported “[Student] is performing below grade level in [Student’s] ELA class”; and “below grade level in math class.” The PLOP therefore, is in direct conflict with the aforementioned sections of the IEP regarding [Student’s] abilities in Reading/Math. Further, there are multiple instances in the IEP again that reported [Student’s] difficulty with executive functioning (i.e., inability to stay on task; inability to focus; time management skills; unable to complete multi-step word problems) c. Goals –

• the Individualized Education Program (IEP) for [Student], Progress Report, Unsigned, Dated 6/25/2019, reported that none of the goals from the 4/19/2019 IEP had been met.
• goals from the 4/19/2019 were restated and included in this IEP.
• once again, no executive functioning goals were developed;
• ELA goals that were developed had multiple targets, rendering them immeasurable;

d. SETSS – indirect services were unnecessarily mandated for ELA. Once again, it is unclear why the service was necessary if the district was of the opinion that [Student] was on grade level – this is a clear indication that the report did not align with his abilities. Once again, the frequency and delivery method were insufficient and inappropriate. For Math, [Student] was provided with an increased mandate, but the delivery method remained inappropriate. e. AT – it was reported that due to [Student’s] absence for the AT evaluation, [Student] was unable to be assessed. It is unclear why the evaluation was not rescheduled for completion. Rather, a goal was developed without empirical data.”

Some progress is documented in the first IEP addressed above where it is noted that: “In SETSS, [Student] has continually progressed both socially and academically”; “[Student] has improved with answering short response questions”; “In Counseling, [Student] has made tremendous progress. [Student] is learning strategies to help [Student] calm down, when [Student] gets upset and has learned to initiate social interactions”; and “[Student] needs the continued support of counseling, along with Special Education Teacher Support Services (SETSS) in order to continue progressing in the general education curriculum. [Student needs to continue implementing the strategies [Student] has learned from all [Student’s] teachers/guidance counselor in order to continue growing both socially and academically” (Ex. DOE-1-2, DOE-1-3, and DOE-1-4). Although an Integrated Co-teaching (“ICT”) setting was considered, it was rejected for being too restrictive for Student at that time because Student could continue to “strive” in a general education setting with the support of SETSS and counseling to address Student’s academic and social-emotional needs (Ex. DOE-1-16).

Parent’s concerns are mentioned in several places on this IEP, but there is no mention of bullying (Ex. DOE-1-2, DOE-1-3). It is noted that Parent requested that Student be screened for Occupational Therapy (“OT”) to address Student’s handwriting issues and that Parent stated that Student has seasonal allergies and migraines which was affecting Student’s attendance (Ex. DOE-1-3).

In the next IEP developed (Ex. DOE-2), Parent’s concern regarding Student’s low self-esteem and anxiety exhibited was noted. Parent also informed the team that Student used to receive therapy outside of school, which helped Student to improve Student’s anger management skills and that Parent was looking to continue that therapy.

Parent also reported that Student's doctor indicated that Student had depression, had a hard time at lunch and did not feel like Student was part of Student’s peer group. Again, it was noted that Parent informed that Student would get frequent migraine headaches, take Tylenol as needed, but that Student “sometimes miss[ed] school as a result of headaches that occur[red] over night and persist[ed] into the morning” and that Student was “monitored by a neurologist outside of school”.

Significantly, Student’s drop in attendance was noted to be down from 79% the previous SY to 71% and that Student’s frequent absenteeism was impacting Student’s grades in class (Ex. DOE-2-3). Despite this, and Parent’s concerns that were noted, the team merely added OT (Ex. DOE-2-) but did not make other meaningful changes at that time to the program to address Student’s drop in attendance. It was noted that Student had been referred for a re-evaluation requested by Parent (Ex. DOE-2-5), as well as that “Due to slower than expected writing speed, this impacts on [Student's] ability to complete writing/copying tasks in the classroom legibly and in within the time allotted” (Ex. DOE-2-9).

Despite the issues being raised regarding Student’s social interactions, anxiety, and drop in attendance, no additional counselling was added to Student’s mandate, although the team did discuss ways in which Student could become involved in social activities such as by joining after school clubs like cooking or sports such as soccer. The IEP noted that to best support Student’s individual needs, Student required continued SETSS and counseling services along with additional OT services in school, and 1 x 30-minute (group 2) session of OT was added to Student’s program (Ex. DOE-2-9, and DOE-2-18).

Despite noting that Student “works well in small groups and one on one with [Student’s] teacher”, more “restrictive class options including ICT and small class settings, as per a neurology doctor's note” based on “evaluation results and [Student’s] current classroom performance”, were rejected as Student's learning and social-emotional could, according to the team, be met in a less restrictive setting with related services of counseling and OT (Ex. DOE-2-3, and DOE-2-25). Given that only one 30-minute group session of OT was added, it is inexplicable how the team could have arrived at this conclusion given the expressed concerns, drop in Student’s attendance with the consequent impact on Student’s grades, and given the contents of the letter from the Medical Center written by Author 1 and Author 2 (Ex. P-S).

In the third IEP developed pursuant to what is described in the IEP as “an additional re-evaluation conference” (Ex. DOE-3-27), Student’s attendance is noted at 74% (Ex. DOE-3-2). The Assistive Technology (“AT”) evaluation that was conducted is referenced, as well as the trial period recommended for Student.

Significantly, the IEP notes in the section headed “LIMITATIONS WHICH PERTAIN TO THE LEARNING PROCESS:” that: “It was determined by [Student’s] neurologist that [Student’s] headaches were related to social and emotional difficulties, related to bullying issues and teasing from peers. However, as per school records from the 6th grade, there have not been any reports of bullying towards [Student] within the school setting. As indicated from the neurology letter, [Student] has poor handwriting, above average verbal skills, and average cognitive abilities. As per this letter, [Student’s] neurology doctor suggested that [Student] be re-evaluated academically, placed in a smaller class setting, with occupational therapy and individual counseling. It was indicated that [Student’s] difficulties with [Student’s] peers have been impacting [Student’s] self-esteem and overall functioning” (Ex. DOE-3-8).

Despite this information being before the CSE team, no major changes were made to Student’s program including Student’s counseling mandate. One 30-minute individual additional OT session was added, as well as the recommended AT device (Ex. DOE-3-20, and DOE-3-21). Similar reasoning was provided for rejecting other placement options (Ex. DOE-3-27, and DOE-3-28).

The District disclosed four evaluations that were conducted during this SY pursuant to Parent’s request for a re-evaluation (Ex. DOE-5, DOE-6, DOE-7, and DOE-9). Whilst these evaluations did lead to OT and an AT device being added to Student’s program (addressed above), Student’s Diagnosis was not diagnosed. Additionally, Student’s non-attendance, being greater than 25%, was not appropriately addressed. Despite concerns of anxiety, depression, and bullying, even if unsubstantiated at that time, being raised, no further testing was conducted.

2020-2021, 2021-2022, and 2022-2023 SYs:

The third IEP developed for Student from the previous SY (Ex. DOE-3) (addressed above) had a projected annual review date of February 3, 2021, which program continued into the 2020-2021 SY.

On February 3, 2021, an IEP was developed for Student with a projected implementation period commencing February 25, 2021, and a projected annual review date of February 3, 2022 (Ex. DOE-10-1). In regard the program developed in this IEP, Parent’s Witness 1 provides the following comments in Witness’s report^[42]:

“a. Instructional/Functional Level – Reading – 6th grade (1 year below grade level); Math – 5th grade (2 years below grade level) b. Evaluation Results – no new information was provided from the previous year’s IEP. c. PLOP- it was reported that “[Student] cannot be accurately evaluated at this time due to his poor performance and attendance in remote learning. [Student] was in the middle of an assistive technology trial period when remote instruction replaced in person learning and as a result his assistive technology Ipad was left in school and is not with the student at home.” It is evident that no effort was made on the part of the NYCDOE to provide a new device or even have the specific device previously used mailed to the student’s home. d. Goals – i. no progress monitoring on the goals ii. goals from the 2/12/2020 were restated and included in this IEP once again, no executive functioning goals were developed; iii. ELA goals that were developed had multiple targets, rendering them immeasurable; iv. SETSS –(ELA/Math) the frequency and delivery method for each was insufficient and inappropriate.

[Student] required 1:1 remediation by a Reading Specialist and 1:1 remediation for Mathematics.”

Despite it being noted in Student’s IEP, inter alia, that:

“[Student] rarely participates in remote learning. [Student]'s mom has indicated that [Student] does not like to go online, as a result it has been difficult for [Student’s] teachers to give updates regarding [Student’s] progress; At times [Student] has difficulty regulating [Student’s] emotions. [Student] still struggles to appropriately interact with his peers. However his lack of self-control gets in the way, preventing [Student] from taking time to think about how [Student’s] actions may impact other; [Student] can sometimes become easily angered; During remote learning [Student] has not been engaged in academic learning and has not been attending classes on a daily basis; According to recent teacher reports, [Student] cannot be accurately evaluated at this time due to [Student’s] poor performance and attendance in remote; While learning remotely [Student] needs to increase [Student’s] level of attendance and participation in on line classes; [Student] has difficulty with work behaviors as [Student] is reported to have difficulty following directions, completing tasks within the time provided in the classroom and working independently. [Student] is also reported to be frequently absent which may also be impacting on [Student’s] ability to complete classwork/homework assignments’ [Student] has a difficult time making friends, it was reported that [Student] was bullied in elementary school; [Student] is not motivated and has stopped attending LIVE classes during remote instruction, [Student] is easily overwhelmed and gets frustrated easily learning; It is unknown if [Student] has ADHD and is not on any medications; Counseling: By February 2022, [Student] will be able to attend school daily remotely. [Student] will be able to complete all homework and class assignments in a timely fashion - 90% of the time.”,

Student’s program continued to remain materially the same; no formal evaluations were conducted; no additional support or related services were provided, the same placement was still determined to be appropriate, and the burden was left to Parent to seek outside help to address Student’s issues with depression and school avoidance (Ex. DOE-10-2, DOE-10-3, DOE-10-4, DOE-10-8, and DOE-10-21).

On February 14, 2022, an IEP was developed for Student with a projected implementation period commencing February 14, 2022, and a projected annual review date of January 28, 2023 (Ex. DOE-14-1). In regard the program developed in this IEP, Parent’s Witness 1 provides the following comments in Witness’s report^[43]:

“a. Instructional/Functional Level – Reading – 8th grade (purported to have gained 2 years in [Student’s] Reading level); Math – 6th grade (purported to have remained at 2 years below grade level). b. Evaluation Results – no new information was provided from the previous year’s IEP. c. PLOP- it was reported that “attendance is an issue as a result it has been difficult for [Student’s] teachers to give updates regarding his progress and growth.” It is evident that no effort was made on the part of the NYCDOE to provide a new device or even have the device previously used even just mailed to the student’s home. The PLOP is devoid of meaningful information regarding [Student’s] present abilities and deficits. Despite the report “[Student] continues to read above grade level…” It is unclear how this determination could have been rendered from the previous statements about the NYCDOE inability to evaluate [Student] and no reporting of standardized assessments. The validity of the PLOP is seriously in question. d. Transitional/Vocational – according to the Coordinated Set of Transition Activities, the objectives included were: “[Student] will create a resume for a part time summer job. [Student] [sic] will keep a planner with due dates and assignments.” There is no report of Transitional/Vocational Assessments that were conducted in order to develop such an objective and therefore, no empirical data to substantiate the goal. e. Goals – i. no progress monitoring on the goals; ii. goals from the 2/12/2020 were restated and included in this IEP; iii. once again, no executive functioning goals were developed; iv. ELA goals that were developed had multiple targets, rendering them immeasurable. f. SETSS – For both ELA/Math, the delivery method for each was insufficient and inappropriate. For ELA, the frequency was increased, which is an indicator that the NYCDOE was cognizant of the deficits. However, without appropriate evaluations, it is clear that the SETSS services was inappropriate as it lacked empirical data for which to drive the instruction.”

Despite it being noted in Student’s IEP, inter alia, that:

“[Student] presents as polite but misses class often as attendance is an issue as a result it has been difficult for [Student’s] teachers to give updates regarding his progress and growth; [Student] is unmotivated to attend school, and does so sporadically. [Student] stated that [Student] finds school interesting but difficult. [Student] loses focus easily; [Student] continues to require the support that counseling provides. [Student] should also continue to receive outside mental health counseling services from [Student’s] psychologist and psychiatrist; [Student] has had poor attendance / excessive school absences during this 2021-2022 school year; [Student] also has a history of migraine headaches which [Student’s] Neurologist attributes to emotional difficulties from bullying/teasing. [Student] presents with low self-esteem, anxiety, and depression. [Student] has difficulty staying focused and attending to task at hand; [Student] requires additional support of OT; Counseling: With the support of counseling [Student] will be able to attend school every day, and be fully engaged in doing his work - 90% of the time.”

Once again Student’s program continued to remain materially the same; no additional formal evaluations were conducted; no additional support or related services were provided, the same placement was still determined to be appropriate, and the burden was still left to Parent to seek outside help to address Student’s issues with depression and school avoidance (Ex. DOE-14-3, DOE-14-4, DOE-14-7, and DOE-14-20).

According to the attendance pages of the Student’s IEPs^[44] (Ex. DOE-1-17, DOE-2-DOE-10-21, and DOE-14-20), there was no school psychologist present at the various IEP meetings.

The IDEA requires that an IEP team include the parents of the child; at least one regular education teacher of the child (if the child is, or may be, participating in the regular education environment); at least one special education teacher of the child, or where appropriate, at least one special education provider of the child; a district representative qualified to supervise/provide special education who is knowledgeable about the general education curriculum and the District's available resources; and an individual who can interpret the instructional implications of evaluation results (who may be an existing, required member of the team other than the parent).^[45]

In New York, the CSE carries out the functions of the IEP team.^[46] The composition of the CSE meets the IDEA requirements but also includes a school psychologist, who may also serve as the district representative or individual who can interpret the instructional implications of the evaluation results.^[47]

The Official Analysis of Comments to the federal regulations indicates that the special education teacher or provider "should" be the person who is or will be responsible for implementing the student's IEP (IEP Team, 71 Fed. Reg. 46670 [Aug. 14, 2006]).

It is patently clear that the CSE team was not duly constituted on March 26, 2019, February 3, 2021, and January 28, 2022, and possibly also on November 12, 2019, and February 3, 2020. While it has been held that not all procedural errors render an IEP legally inadequate under the IDEA^[48], this procedural failure was not insignificant and had material implications for Parent and Student. Parent raised concerns with respect to the Student’s learning challenges and behaviors, depression, anxiety, and significant school avoidance which continued to be left unchecked, and no additional counselling was recommended. It also impacted the ability of the team to make an informed choice regarding the appropriateness of Student’s existing placement, and the inappropriateness of all the alternative options that were rejected, which was in stark contrast to what Author 1 and Author 2 were motivating for Student. These factors together lend significant credence to the Parent’s assertions in the DPC that the DOE failed to, inter alia: “adequately assess [Student’s] behavior management needs and failure to appropriately address the proven behavior”; “provide appropriate counseling”; “to Evaluate”; and “develop meaningful and measurable goals to address [Student’s] myriad of issues”.

Neither party disclosed an IEP developed subsequent to the January 8, 2022, IEP meeting. Parent however testified (Exhibit P-AA), inter alia, that:

In September 2022, Student had a high school placement to attend but hardly went. Student was receiving home instruction in 8th grade because Student would not go to school. Student always had some reason not go and stopped going totally by January 2022. The DOE finally began providing Student home instruction on May 2, 2022 (i.e., received no instruction for approximately three to four months), due to Student’s complete unwillingness to go to school. Student’s school refusal was getting worse and worse over the years and so home instruction started. In September 2022, Student just would not go to school at all.

The school understood the issue and tried to help Student, but it did not work; Student needs very specialized help. By the time of the IEP meeting on September 23, 2022, everyone at the meeting agreed that Student needs a small class in a specialized nonpublic school program, like the one Parent’s Witness 2 recommended. The school psychologist^[49] was also in agreement that while awaiting that program Student needed the home instruction to resume. Currently, Parent is seeing schools and we are working on getting the home instruction started (i.e., Student was and continued to miss additional educational instruction/learning).

Parent has not yet, as at the date of the IH, received the IEP that was developed on September 23, 2022, Parent understood that Student will be provided a small 8:1+1 class, with twice weekly individual OT (i.e., an increase from the previous OT mandate), weekly individual physical therapy (“PT”) (i.e., new related services are being added), and twice weekly group speech-language therapy (“SLT”) (i.e., new related services are being added), counseling once in an individual session and once in a group (i.e., an increase from the previous OT mandate), along with AT. Student will also have Student’s reading skills targeted and goals for Student’s transitional vocational needs.

Parent had requested more services and supports at the meeting to match the recommendations in the evaluation reports that were done, but the school psychologist was concerned Student would be out too much. However, Parent was told that this program may change some once a placement is located and this is just the IEP needed to help find a placement. Parent understood that there will be an opportunity to speak more about Student’s needs at that future IEP meeting. Also, because there will be another meeting, the team did not discuss the goals and the school psychologist said that the related services providers, who were unavailable at the September meeting, could be at this future meeting and could help decide the type and amount of service Student could get.

I address the impact of equitable considerations on compensatory services recommended by Parent’s Witness 1 and the Reviewers when addressing the appropriate remedy below, but it is clear from the evidence submitted by Parent and highlighted by the most recent evaluations and report (Ex. P-L through P-Q, and P-T) that the District failed in its obligations towards Parent and Student for several SYs.

The DOE, inter alia, failed to: timeously identify Student’s learning challenges and struggles; conduct evaluations sooner; conduct appropriate evaluations in areas of Student’s suspected disabilities; appropriately diagnose and classify Student; have an appropriately assembled CSE team to conduct Student’s IEP meetings; recommend sufficient support services, given the clear pattern of withdrawal by Student from school life and the impact it was having on Student’s school performance; provide educational services, with appropriate supports to access that education, after Student withdrew altogether from attending school; recommend an appropriate placement where Student could receive appropriate supports and services to address Student’s individual needs; and that continuing to recommend a “NYC DOE School Non-Specialized (District 1-32)” school placement with the minimal supports (SETSS and minimal related services) offered resulted in a deprivation of educational benefits.

In the circumstances, I find that there was a denial of a FAPE for SYs in issue (with a risk that this will continue for the remainder of the 2023-2023 SY) and the District did not discharge its burden in this regard.

[II] Appropriate Remedies: Compensatory Services Parent is also seeking compensatory education or compensatory services for the District’s failure to provide Student with a FAPE. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.^[50]

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. As the claims and DOE’s failure to provide a FAPE cover multiple SYs, I find that an award of compensatory services is appropriate.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.^[51] Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA^[52].

Given the duration of the deprivation and the evidence on record, this case lends itself more appropriately towards the qualitative approach, but also not wholly unconnected to the period of the deprivation (i.e. the quantitative approach).

The DOE provided no evidence to substantiate a reduction of any proposed compensatory hours to be awarded but did attempt to understand through cross-examination of Parent’s Witness 1 and Parent whether the proposed hours sought could reasonably fit in with Student’s schedule, or whether it may overwhelm Student.

Parent’s representative and Parent’s Witness 1 took a position and made clear the compensatory hours they maintain that Student should be awarded with respect to the type and scope of compensatory services that would be appropriate if a FAPE deprivation were found to have occurred. Parent disclosed a detailed Compensatory Service Plan (Exhibit P-T), supported by the testimony of Parent’s Witness 1 (Ex. P-C, P-U, and P-V; T. P64-69), whom I find to be sufficiently qualified to express the opinions provided, incorporating recommendations from Parent’s Witness 2 and the Reviewers, who similarly hold appropriate credentials to provide the assessments and recommendations expressed (Ex. P-D, P-E, and P-W through P-Z).

Parent’s Witness 1’s detailed and highly individualized remedial plan proposed for Student is credible and convincing (not taking into account equitable factors which I address below) and is based on a detailed review of Student’s records and informal assessments/interviews, in collaboration with the Reviewers. It also sets out in detail instances where Student’s IEPs fell short (addressed above), linking the remedial services proposed to the deprivations experienced.

Parent’s Witness 1 gives a detailed breakdown, properly supported and incorporating the recommendations by the Reviewers, for the ultimate recommendations proposed for Student including the proposed award for compensatory services and instruction (Ex. P-T-11, P-T-28, P-T-36, P-T-56, and P-U-2, P-U-3, and P-U-4) namely:

• 828 hours of Compensatory Intensive and Individualized Academic Remediation (“IIAR”) Hours (inclusive of Reading, Writing, Spelling, Math, Executive Function, instruction specifically tailored for Student with a formula of 6 hours weekly (broken down to 3 hours of Orton Gillingham, 1 hour of Math, 2 hours of Writing for 46 weeks, for 3 years).
• 138 hours of Compensatory Transitional/Vocational instruction (a formula of 1 hour weekly for 46 weeks, for 3 years).
• 46 hours of Compensatory PT (1 hour weekly for 46 weeks).
• 138 hours of Compensatory OT services (1.5 hour weekly for 46 weeks, for 2 years).
• 92 hours of Compensatory AT Training (1 hour weekly for 46 weeks, for 2 years).
• 46 hours of Compensatory AT Parental Training (1 hour weekly for 46 weeks, for 1 year).
• 138 Compensatory Hours of Counseling (1 hours per week for 46 weeks, for 3 years).
• 92 hours of Compensatory SLT” (1 hours weekly for 46 weeks, for 2 years).

Additionally, Parent’s Witness 1 confirmed the customary hourly rates currently charged by Service Provider and the Reviewers (Ex. P-U-2, P-U-3, and P-U-4) for: Compensatory IIRA services at $170.00; Compensatory Transitional/Vocational services at $180.00; PT services at $180.00; OT services at $180.00 per hour; Compensatory AT services (Student) at $180.00; AT instruction/services (Parent) at $180.00; Compensatory Counseling services at $150.00; and SLT services at $180.00. I find these rates to be reasonable and not excessive.

Equitable considerations:

The formulation of the various recommended hours in each domain should not disregard in its entirety the program and related services provided to the Student as a whole, over the years in issue. In analyzing the complete educational program offered in each IEP relevant to each SY in issue, I find that although the DOE’s offering did fall short of providing the Student with a FAPE, the DOE still attempted to meet its obligations, re-evaluate the Student, revise Student’s program, including altering interventions and goals, albeit minimally and insufficiently.

Related services were provided, and some progress was documented, especially during the early part of the 2019-2020 SY, leading to the CSE team to initially believe that Student could be provided with a FAPE in the current setting; the CSE team was responsive to Parent’s request and re-evaluated Student, later adding OT as well as AT for a trial period, although all of it was provided at insufficient levels.

Efforts made by the DOE to provide the Student with "personalized instruction” and educational benefits, which would have contributed to address the Student’s deficits and partially diminish interfering behaviors, albeit not at a level that resulted in the DOE providing the Student with a FAPE under the regulations.

Whilst the Parent’s Witness 1, Parent’s Witness 2 and the Reviewers address Student’s Diagnosis and the inadequacy of the recommended programs and mandated related services to provide the Student with a FAPE, their evidence is mostly relevant to the most recent SYs (2021-2022, and 2022-2023) given their recent observations as part of the recent evaluations conducted pursuant to the Order on IEEs. These professionals did not personally interview and observe Student during 2019, 2020, or 2021, and to an extent relies upon extrapolating current observations to past documented data. I note however the recommendations do not seek three or even four years of compensatory services, as the recommendations are not aimed at punishing the District^[53] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.”^[54]

There is additional authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017] ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]”.

District’s representative cross-examined both Parent and Parents’ Witness 1 to elicit facts from which it could be ascertained whether the recommended hours would become burdensome. Parent’s Witness 1 confirmed that Service Provider would be able to make the services available at any time that fitted in with Parent and Student’s schedule. The award being granted provides for such flexibility. Additionally, Parent testified that it was difficult to surmise or speculate without knowing what Student’s schedule would look like as Student would need to start going to school first. The award will have an expiration period, given the many unknown facts regarding Student’s future schedule, to ensure that the compensatory award is carried out as envisaged by the remedial plan. The excessive hours sought AT training for both Student and Parent is however not justified, and I find both to be an unreasonable quantity, with an appropriate adjustment being made thereto.

When it comes to remote instruction and the switch to remote and hybrid learning necessitated by the Covid-19 pandemic, there is authority that bears mentioning^[55].

The State Review Officer (“SRO”) in this case specifically found that the services that were missed were missed due to the switch in the provision of instruction from in-person to remote learning in response to the Covid-19 pandemic.

The SRO noted that the “CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).

If the parent disagrees with a CSE's determination regarding the student's entitlement to compensatory services, State guidance notes that:

Parents of students with disabilities may resolve disputes with school districts regarding the provision of FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j).

("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).

Here, there is no indication that a CSE has conducted such a review, nor is there any indication that the parent requested that the CSE conduct such a review. The parent expressed during the hearing that, in her opinion, the student regressed during remote learning and that remote delivery was inappropriate for the student (Tr. p. 439-41). The parent stated that she informed the school of the student's difficulties with remote learning, her dissatisfaction with the same, and her desire to obtain related services in the home beginning in April 2020 (Tr. pp. 43536, 438-40). However, the parent did not testify that she requested a reconvene of the CSE, but only indicated that the CSE did not convene to consider the impact of remote instruction on the student (Tr. pp. 432-33).”

…

“At this point, the CSE should have reconvened to develop an IEP for the student for the 2021-22 school year (see Parent Ex, B at p. 1 [showing a projected date of annual review of April 6, 2021]), and the parent was required to raise these concerns concerning the student's regression and compensatory education with the CSE in the first instance. As discussed above, the USDOE and NYSED's Office of Special Education have indicated that, under these unique circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic. Accordingly, the IHO erred in ordering compensatory education at this juncture. However, the parties, if they have not already done so, should conduct a review of the student's present levels of academic achievement and functional performance as envisioned by federal and state education authorities and convene a CSE to engage in educational planning for the student, which should include a consideration of whether any compensatory services may be warranted to make-up for a loss of skill during school closures and the delivery of instruction and services to the student remotely. Once a CSE conducts such a review, if the parent disagrees with the recommendations thereof, she may pursue dispute resolution through one of the mechanisms described above.

Therefore, because the IHO's order alters the procedure that must be followed with regard to compensatory education services arising out a change in the delivery of instruction during the COVID-19 pandemic, it cannot be upheld.

[VII. Conclusion] In summary, given the allegations in the parent's due process complaint notice, the IHO erred in denying the district's motion to dismiss. The IHO should not have decided whether the district offered the student a FAPE from March 2020 through the 2020-21 school year, notwithstanding the shift to remote instruction due to school building closures resulting from the COVID-19 pandemic. Even if the district's delivery of remote instruction could support a finding that the district failed to provide the student a FAPE, the student would not be entitled to relief in the form of compensatory services at this juncture as it does not appear that a CSE review occurred.”

Given that the SYs includes a period when Student was learning remotely, these above considerations find application to this case. I however specifically note that the impact is not as material as it might otherwise have been, had it not been for the fact that Student’s school avoidance issues continued even long after schools reopened (i.e., the lost services were not solely attributable to the switch from in-person to remote and/or hybrid learning).

The CSE however should have the first opportunity to consider Student’s needs and whether any additional services may be warranted because of the pandemic, and this award does not seek to alter the procedure that must be followed regarding compensatory education services arising out a change in the delivery of instruction during the Covid-19 pandemic (which is factored into my calculation below).

Finally, the DOE recently conducted an IEP and, according to Parent’s representative, recognized Student’s need for an approved non-public school placement, and deferred the case to the CBST to locate an appropriate placement. Parent has confirmed actively participating in this process with Student. This does impact the remainder of the 2022-2023 SY, which even if it takes a little more time to locate the right school placement, the awarded compensatory services limit a further deprivation of educational benefits in the interim.

These considerations have factored into my calculation of compensatory hours sought (T. P60, L10-25; P61, L1-11) and awarded as follows (rounding has been used in the calculation, where required):

• 828 hours of IIAR Hours (inclusive of Reading, Writing, Spelling, Math, Executive Function, instruction specifically tailored for Student with a formula of 6 hours weekly (broken down to 3 hours of Orton Gillingham, 1 hour of Math, 2 hours of Writing for 46 weeks, for 3 years) sought - adjusted award: 570 compensatory hours of IIAR being awarded (i.e., +70%).
• 138 hours of Compensatory Transitional/Vocational instruction (a formula of 1 hour weekly for 46 weeks, for 3 years) sought - adjusted award: 97 compensatory hours of Transitional/Vocational instruction being awarded (i.e., +70%).
• 46 hours of Compensatory PT (1 hour weekly for 46 weeks) sought - adjusted award: 25 compensatory hours of PT being awarded (i.e., +55%).
• 138 hours of Compensatory OT services (1.5 hour weekly for 46 weeks, for 2 years) sought - adjusted award: 83 compensatory hours of OT being awarded (i.e., +60%).
• 92 hours of Compensatory AT training (1 hour weekly for 46 weeks, for 2 years) sought - adjusted award: 23 compensatory hours of AT training being awarded (Student) (i.e., +25%).
• 46 hours of Compensatory AT Parental training (1 hour weekly for 46 weeks, for 1 year) sought - adjusted award: 9 compensatory hours of AT being awarded (Parent) (i.e., +20%).
• 138 Compensatory hours of Counseling (1 hours per week for 46 weeks, for 3 years) sought - adjusted award: 124 compensatory hours of Counseling being awarded (i.e., +90%).
• 92 hours of Compensatory SLT (1 hours weekly for 46 weeks, for 2 years) sought - adjusted award: 78 compensatory hours of SLT being awarded (i.e., +85%).

Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.

ORDER

Based upon the above Findings of Fact, it is hereby:

• ORDERED that, the DOE shall fund the following compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by duly New York State licensed providers of the Parent’s own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), limited to the amounts set out in #2 of this Order for each of the services:
• 570 compensatory hours of IIAR.
• 97 compensatory hours of Transitional/Vocational instruction.
• 25 compensatory hours of PT.
• 83 compensatory hours of OT.
• 23 compensatory hours of AT training (Student).
• 9 compensatory hours of AT training (Parent).
• 124 compensatory hours of Counseling.
• 78 compensatory hours of SLT.

by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.

• FURTHER ORDERED that, the bank of compensatory services set out in #1 of this Order shall not expire until the expiration of 2 (two) years from the date of this Order and that the amount payable by the DOE for each of the services to the providers of the Parent’s own choosing shall be limited as follows:
• Compensatory IIRA services at a rate not to exceed $170 per hour.
• Compensatory Transitional/Vocational services, PT, OT, AT, and SLT at a rate not to exceed $180 per hour for each of the services.
• Compensatory Counseling services at a rate not to exceed $150 per hour.
• FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.

SO ORDERED.

DATED: December 23, 2022

__H.A.C._ (Signed Electronically) ___

Impartial Hearing Officer

Harry A. Christodoulou

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.

APPENDIX A – REDACTION IDENTIFICATION PAGE

REDACTED

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT’S EXHIBITS

Exhibit

Document

Date

Pages

P-A

Demand for Due Process Hearing

05/13/2022

P-B

Parent Request Letter for IEEs

05/09/2022

P-C

Affidavit of Executive Director of Service Provider 1, Parent’s Witness 1

06/21/2022

P-D

Affidavit of Parent’s Witness 2

06/18/2022

P-E

Affidavit of Parent’s Witness 3

06/16/2022

P-F

IEP

01/28/2022

P-G

IEP

02/03/2021

P-H

IEP

02/032020

P-I

IEP

03/26/2019

P-J

IEP

04/25/2018

P-K

IEP

04/25/2017

P-L

OT Evaluation

08/30/2022

P-M

AT Evaluation

08/30/2022

P-N

Transitional/Vocational Evaluation

08/29/2022

P-O

Speech/Language Evaluation

08/29/2022

P-P

PT Evaluation

08/29/2022

P-Q

Neuropsychological Evaluation

08/25/2022

P-R

The Center Report

12/01/2020

P-S

Medical Center Report

09/24/2019

P-T

Compensatory Service Plan

11/01/2022

P-U

Affidavit of Parent’s Witness 1

11/02/2022

P-V

Resume of Parent’s Witness 1

Undated

P-W

Resume of Reviewer 1

Undated

P-X

Resume of Reviewer 2

Undated

P-Y

Resume of Reviewer 3

Undated

P-Z

Resume of Reviewer 4

Undated

P-AA

Affidavit of Parent

Undated

DOE’S EXHIBITS

Exhibit

Document

Date

Pages

DOE-1

19.20 IEP

03/26/2019

DOE-2

19.20 IEP

11/12/2019

DOE-3

20.21 IEP

02/30/2020

DOE-4

2020 Remote Learning Plan

05/14/2020

DOE-5

PT Evaluation

10/18/2019

DOE-6

OT Evaluation

10/07/2019

DOE-7

Level I Vocational Interview

10/28/2019

DOE-8

OT Teacher Report

10/21/2019

DOE-9

AT Evaluation

01/23/2020

DOE-10

21.22 IEP

02/03/2021

DOE-11

Related Services Adaptions for Blended/Remote learning

11/16/2020

DOE-12

Special Education Program Adaptions Document for Blended/Remote Learning

09/23/2020

DOE-13

Related Service Adaptions for Blended/Remote Learning

10/13/2020

DOE-14

22.23 IEP

01/28/2022

DOE-15

Withdrawn (duplicate)

DOE-16

Withdrawn (duplicate)

DOE-17

Withdrawn (duplicate)

DOE-18

Withdrawn (duplicate)

DOE-19

Withdrawn (duplicate)

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

IHO-I

DOE’s Evaluation

10/28/2019

IHO-II

Order on IEEs

07/19/2022

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] The transcript of the limited hearing was not available at the time the Order on IEEs was prepared.

[3] U.S.C. § 1400 et seq.

[4] C.F.R. § 300 et seq.

[5] Educ. Law Art. 89 § 4404 et seq.

[6] NYCRR § Part 200.

[7] C.F.R. § 104.36.

[8] NYC Exec. Order No. 20 (June 24, 2022), https://www1.nyc.gov/assets/oath/downloads/pdf/EO-20-final-rehab-Act-504-delegation-Signed.pdf.

[9] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[10] U.S.C. § 1415[f][3][E][ii]; 34 C.F.R. § 300.513[a][2]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007].

[11] U.S.C. § 1415[f][3][E][i].

[12] Rowley, 458 U.S. at 203.

[13] Houston Indep. Sch. Dist., 200 F.3d at 349; Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 [3d Cir. Aug. 14, 2008]; Couture v. Bd. of Educ., 535 F.3d 1243 [10th Cir. 2008]; Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 [8th Cir. 2003]

[14] A.P., 370 Fed. App'x at 205; Van Duyn, 502 F.3d at 822; Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 [D.D.C. 2007].

[15] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].

[16] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd. of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].

[17] U.S.C. § 794(a).

[18] U.S.C. § 794(a).

[19] C.F.R. § 104.33(a).

[20] C.F.R. § 104.33(b).

[21] C.F.R. §104.3(j)(1).

[22] U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2).

[23] See 28 C.F.R. § 35.108(c)(1)(ii).

[24] C.F.R. § 104.35(d).

[25] C.F.R. § 104.35(c)(1).

[26] C.F.R. § 104.35(c)(2).

[27] C.F.R. § 104.35(c)(3).

[28] NYS Educ. Law § 4404(1)(c).

[29] See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).

[30] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[31] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].

[32] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[33] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[34] Parent’s unsigned statement was affirmed whilst Parent was under oath on the record at the IH on November 10, 2022 (T. P72, L15-25).

[35] Rowley, 458 U.S. at 203.

[36] In re: Student with a Disability New York State Educational Agency (51 IDELR 295) 08-026 (108 LRP 34384) (2008).

[37] In re: Student with a Disability New York State Educational Agency.

[38] (20 U.S.C. § 1400[d][1][A]; Schaffer, 546 U.S. at 51; Rowley, 458 U.S. at 180-81; Frank G., 459 F.3d at 371).

[39] (20 U.S.C. § 1414[d][4][A]; 34 C.F.R. § 300.324[b][1][i]; see also Educ. Law § 4402[2]; 8 NYCRR 200.4[f].

[40] Additional deficiencies of the Student’s program and failures by the DOE are noted by Parent’s Witness 2 and the Reviewers in Parent’s Witness 1’s report, as well as each of the evaluations (Ex. P-T, P-L through P-Q).

[41] Additional deficiencies of the Student’s program and failures by the DOE are noted by Parent’s Witness 2 and the Reviewers in Parent’s Witness 1’s report, as well as each of the evaluations (Ex. P-T, P-L through P-Q).

[42] Additional deficiencies of the Student’s program and failures by the DOE are noted by Parent’s Witness 2 and the Reviewers in Parent’s Witness 1’s report, as well as each of the evaluations (Ex. P-T, P-L through P-Q).

[43] Additional deficiencies of the Student’s program and failures by the DOE are noted by Parent’s Witness 2 and the Reviewers in Parent’s Witness 1’s report, as well as each of the evaluations (Ex. P-T, P-L through P-Q).

[44] Ex. DOE-2-26 reflects a School Psychologist in attendance at the IEP meeting held on November 12, 2019, however the same individual (DOE Evaluator defined on page 30) is named in attendance at Student’s next IEP meeting held on February 3, 2020 and is not cited in that capacity, but only in the capacity as a District Representative, leading to some doubt whether this individual is in fact a school psychologist (see Ex. DOE-3-28).

[45] See generally, 34 C.F.R. §§ 300.320-300.328; see also, Questions and Answers on Individualized Education Programs (IEPs), Evaluations, and Reevaluations, 111 LRP 63322 (OSEP 2011)

[46] NYCRR § 200.3(a)(1)

[47] A special education teacher or provider may also serve as the district representative. The regular education teacher, the special education teacher or provider, the school psychologist, and the district representative may also serve as the individual who can interpret the instructional implications of evaluation results. 8 NYCRR §§ 200.3(a)(1)(i) - (vi).

[48] (A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).

[49] It appears that a school psychologist attended this IEP meeting, and with a duly constituted CSE team an appropriate placement recommendation was finally being made.

[50] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[51] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.

[52] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].

[53] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].

[54] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.

[55] See Application of a Student with a Disability, Appeal No. 22-031.

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

ORDER