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CASE NUMBER: 573674 - NYC: 226790
FINDINGS OF FACT AND DECISION
Student’s Name [1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 06/06/2022
Date(s) of Hearing: 07/20/2022, and 01/17/2023
Actual Record Closed Date: 02/15/2023
Date of Decision: 02/21/2023
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 20, 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
JANUARY 17, 2023
For the Student:
Parent’s representative
For the Parents:
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 June 6, 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. IHO-I). I was appointed on June 7, 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 2020-2021, 2021-2022, and 2022-2023 school years (“SYs”), an order that the District hold an IEP meeting to recommend Student for placement in an appropriate approved non-public school (“NPS”), compensatory services, and funding for the cost of an appropriate assistive technology (“AT”) device (Ex. IHO-I-6, & IHO-I-7).
The DPC included a request for an interim order for Independent Educational Evaluations (“IEEs”) (Ex. IHO-I-6) and a limited hearing was held on July 20, 2022, to allow both parties an opportunity to present evidence and argument in support of their respective positions regarding that order (T. P12-27). Two interim Orders on IEEs were issued on July 13, 2022 (Ex. IHO-II) and August 11, 2022 (Ex. IHO-III), which IEEs were subsequently obtained and included in the record as part of Parent’s disclosure (Ex. P-P through P-S).
Parent proposed an amendment to the DPC and District’s representative agreed to the amendment at a status conference held on September 7, 2022 (T. P35-P37), which amendment brought in, inter alia, a claim for tuition reimbursement/funding (Ex. P-O). An interim Order on Transportation was issued on October 5, 2022 (Ex. IHO-VI), after the parties reached agreement thereon at a status conference held on September 29, 2022 (T. P43-P49).
The IH took place on January 17, 2023.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[2] and its implementing regulations,[3] and the New York State Education Law[4] and its implementing regulations. [5]
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 or submitting any additional documentation for admission to the record but would be “resting on the record”; and that the DOE was not conceding that it failed to provide Student with a FAPE for the SYs at issue (T. P74). District’s representative waived the DOE’s opening and closing statement. District’s representative confirmed that the DOE rested its case (T. P80).
Parent, through the Parent’s representative, submitted an additional eighteen documents in support of the Parent’s case for the main hearing. Ten exhibits had previously been admitted in support of the interim orders granted (Ex. IHO-II, IHO-III, & IHO-VI). Parent’s representative made a combined opening and closing statement in which inter alia the final relief claimed was summarized (T. P81-P86).
There were no formal objections to any of the documents admitted at the main hearing. All exhibits that are admitted to the record are listed below (see Appendix B).
ISSUE(S) IN DISPUTE
As the DOE did not concede that it failed to provide Student with a FAPE for the SYs at issue, whether Student was provided a FAPE for one, some, or all the SYs at issue is to be determined. Additionally, the relief to be awarded, if it is found that the DOE failed to provide Student with a FAPE for one, some, or all the SYs at issue, is to be determined.
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 [6].
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 [7].
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 [8].
A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" [9]. 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 [10]. 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" [11].
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.[12]
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.[13]
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 does apply in this case[14] (T. P57-P58).
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.” [15]
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. As such, I have sought to determine if the programs provided for those SYs were reasonably calculated to enable Student to make progress appropriate considering 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 witnesses. In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,[16] 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).[17] The IEPs must have been “reasonably calculated to provide some ‘meaningful’ benefit.” [18]
Student’s Diagnosis (defined on page 28) and the impact it has had on Student’s learning and ability to progress is documented in the IEPs (Ex. P-C, & P-D), the evaluations conducted (Ex. P-P through P-S), and the affidavits submitted (Ex. P-Z through P-EE).
It is unsurprising that in the face of such overwhelming evidence, that the District chose not to put on a case 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 presented evidence supporting the conclusion that the District denied the Student a FAPE for all three SYs, causing a deprivation of educational benefits and the District has not met its burden in this regard. Although I still find that the District denied the Student a FAPE for the 2020-2021 and 2021-2022 SYs, it is purely on the basis that the District bears the onus and that where, as in this case, the probabilities are even or 50-50, the District fails to meet its burden.
2020-2021 and 2021-2022 SYs: Parent disclosed the IEPs relevant to these SYs, which were admitted for purposes of the limited hearing (Ex. P-C, & P-D). These IEPs were developed for Student where the implementation periods (10/04/2020-10/21/2021 and 10/29/2021-10/15/2022) relate to these two SYs and continued into the 2022-2023 SY, developed pursuant to IEP meetings held on October 21, 2020, and October 15, 2021, respectively.
Whilst on the face of the two IEPs, the complete programs included in Student’s IEPs were not insubstantial, a factor I consider under the calculation of compensatory services being awarded, and do not appear to be too far off from the recommendations by Affiant 1, the DOE still failed to meet its burden for several reasons.
Of lesser significance, according to the attendance page of the Student’s IEP for the 2020-2021 SY, the CSE team present at this IEP meeting was not properly comprised (Ex. P-C-23).
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). [19]
In New York, the CSE carries out the functions of the IEP team.[20] 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. 21
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 October [21], 2020. While it has been held that not all procedural errors render an IEP legally inadequate under the IDEA [22], this procedural failure was not insignificant and had material implications for Parent and Student. Parent was not present despite asking for the meeting to be rescheduled and was therefore denied the opportunity of participating and raising concerns and participating in the decision-making process.
It was not proven as part of the DOE’s obligation to discharge its burden, that the improperly constituted team did not also impact the ability of the CSE team to make an informed choice regarding: the appropriateness of Student’s existing placement; the services needed; evaluations required; the goals developed; and the appropriateness or otherwise of the alternative options that were rejected, and others that were not even considered. These factors together lend significant credence to the Parent’s assertions in the amended DPC that the DOE “denied the Parent the right to meaningfully participate in the development of the Student’s educational program” (Ex. P-O-4).
More importantly however, Parent asserts in the amended DPC that the DOE failed to, inter alia: “implement the Student’s IEP”; and “provide an appropriate program and placement for Student”. In the reports conducted, Parent reported that Student missed out of therapeutic services for approximately 1.5 years. Whilst I address the impact of the failure to provide such services as part of the equitable considerations under the award for compensatory services, it still impacted the DOE’s obligation to provide Student with a FAPE during these two SYs, namely the failure to provide related services to Student which according to the DOE’s own developed IEPs Student needed to receive a FAPE.
Student’s IEP documents that Student requires a 6:1+1 environment within District 75 to address behavioral, communication, social and academic needs, and that Student “currently receives related services to address these needs as well” (my emphasis). It documents that Student’s current behavioral needs (attention seeking, hitting, yelling) communication needs (nonverbal), social (unable to appropriately engage with peers) and academic needs (reading/math intervention, occasional work avoidance) preclude Student’s ability to access the general education curriculum (Ex. P-D-8). The related services are integral to Student’s ability to access the proposed program and the failure to provide those resulted in the Student being denied educational benefits.
It is asserted in the amended DPC in reference to Student’s developed pursuant to the IEP meeting held on October 15, 2021, that the “IEP states “no new testing is necessary to make an educational programmatic placement decision.” In [Student’s] 2020 IEP, [Student’s] FAST ELA Benchmark was at a Level 1, with scores of “62%” and “50%.” In [Student’s] 2021 IEP, [Student’s] FAST ELA Benchmark remained at Level 1, and [Student’s] scores regressed to “44%” and “50%.” Similarly, [Student’s] FAST Math Benchmark in 2020 was at “62%” and “69%” and these regressed in 2021 to “50%” and “31%”. No mention of [Student’s] regression was made in [Student’s] IEP” (Ex. P-O-3). These assertions cast doubt on the reliability of the information contained in the two IEPs on record. All of Parent’s assertions in the amended DPC went unanswered, given the DOE’s failure to defend its programs. In the face of Parent’s disclosed reports and affidavits (Ex. P-P through P-S; P-Z through P-EE), it demanded an affirmative response from the DOE if it wanted to defend its programs.
2022-2023 SY:
The IEP developed for Student from the previous SY (Ex. P-D) (addressed above) had a projected annual review date of October 15, 2022. Neither party disclosed an IEP developed subsequent to the IEP developed at the October 15, 2021, IEP meeting. Additionally, Parent notes the District’s failure to locate an appropriate placement in Parent’s ten-day notice (Ex. P-FF). Accordingly, the record establishes that the DOE neither developed an IEP nor provided Student with a school placement letter/recommendation for the 2022-2023 SY[23] and the DOE did not prove otherwise. [I] Appropriate Remedies: Tuition Reimbursement/Funding
Parent is seeking, pursuant to the amendment introduced by way of the amendment to the DPC, tuition reimbursement/funding for the 2022-2023 SY (Ex. P-O-7). Given my findings above for the three SYs in issue, but particularly regarding the 2022-2023 SY, Parent has accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding (i.e., Prong I).
Prong II - Appropriateness of the Parent’s Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.”[24] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[25] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child.” [26]
The Judges in the Gagliardo case wrote that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. … the DOE that the Failures had constituted the denial of a FAPE and the DOE did not contest that it had denied the student a FAPE. The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE ...." (my emphases). The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”. Id.
They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”[27] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parent’s representative presented detailed testimony by Parent’s Witness 1, and Parent and submitted documentary evidence in support of the Parent’s position that the Attending School placement is an appropriate placement for the 2022-2023 SY.
Parent’s Witness 1 testified[28] (Exhibit P-Z) as to: Witness’s title, namely the program director at the Attending School (defined on page 28); Witness’s educational background, credentials, and work experience; Witness’s duties and responsibilities; the Attending School’s program offering, including how each student attending receives 1:1 ABA instruction and is assigned a 1:1 behavior technician throughout the day; how students are provided with related services (SLT; OT; and PT) both on a 1:1 basis and in a group, also speaking to the mandate Student receives, the educational levels of each of Student’s service providers, and service provider is working on with Student; how Student is being given specialized instruction to address a variety of Student’s educational needs, which includes 1:1 and group academic instruction; how Student participates in at least three 45 minutes 1:1 periods end at least two 45 minutes group periods each day; how the program is fostering development of skills that Student requires to function in a less restrictive setting; and how as part of the program the class takes trips a few times per week into the community where they practice safety awareness and work on developing specific skills.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with special needs requiring a 1:1+ intensive program, with a small class size with a low student-to-teacher ratio, individualized attention, and small group instruction for behavioral and instructional needs.
The entire program, including the learning methodologies and the supports provided are designed to meet the needs of this class or category of student. The Student falls in this class or category.
The detailed evidence presented by Parent’s Witness 1 substantiating how Student’s teachers specifically tailored the program for Student’s unique and individual needs, is uncontested and credible. The evidence on record, which was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parent’s Witnesses 1, supports the Parent’s assertion that the Attending School is an appropriate placement for Student.
The testimony of the Parent, Parent’s Witness 1, and the Parent’s documentary evidence (Ex. P-T through PZ, and P-EE) establishes that the Attending School is appropriate and is providing Student with educational instruction that is specifically designed to meet Student’s unique special education needs, supported by such services that are necessary to permit Student to benefit from instruction, for the 2022-2023 SY. I find that, based on the Student’s attendance at the Attending School since Student’s enrolment, as testified to by Parent, and Parent’s Witness 1, Student is making progress and will likely continue to do so for the remainder of the 2022-2023 SY.
Parent has therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding/reimbursement.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA. [29]
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents. [30]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten 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.” [31]
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.” [32]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision [33].
The hearing record reflects that Parent notified the CSE by email correspondence dated August 10, 2022, sent by Parent’s representative, of Parent’s intention to enroll Student at the Attending School and seek public funding for the 2022-2023 SY (Ex. P-FF). I find that in this letter Parent offered sufficient information to put the DOE on notice about Parent’s concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parent’s intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement. [34]
Although it is apparent from the record that Parent signed a contract enrolling Student in the Attending School prior to the start of the 2022-2023 SY but after providing the CSE the ten-day notice, namely on August 16, 2022 (Ex. P-T-4), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming . . . that the parents never intended to keep [the student] in public school.”[35] I find that the timing as to when the ten-day notice was sent to the CSE to be of no consequence to Parent’s claim and the relief being granted. Amounts Claimed:
Parent confirmed Student’s tuition rate at the Attending School for the 2022-2023 SY, namely $131,875.00, which amount covers Student’s base tuition and all the related services (Ex. P-EE-2).
Affiant 5 (defined on page 28), employed at the Attending School as Director of Operations, also confirmed, as of November 3, 2022, the total contracted annual tuition rate of $131,875.00 owing to the Attending School for the 2022-2023 SY for Student’s enrolment from September 8, 2022 through June 30, 2023 (i.e., the ordinary SY), less the $100.00 deposit paid by Parents leaving a balance of $131,775.00 due to the Attending School (Ex. PY-1). This evidence is consistent with the enrolment contract (Ex. P-T).
Parent also testified regarding Parents’ employment and ability to pay the tuition owing (Ex. P-EE-2), as well as an obligation to pay the amount owed if funding is not awarded, which accords with the terms of the enrolment contract (Ex. P-T-6). I find that a case for direct funding based upon need has been made out. This evidence was not contested.
I also do not find any factors applicable to warrant a reduction of the claim for tuition funding based upon equitable factors. No equitable factors were raised by the DOE.
Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding. Having met all three criteria of the Burlington/Carter test, Parent is entitled to reimbursement/funding for the cost of Student’s placement at the Attending School for the 2022-2023 SY.
[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. [36]
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.
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).
Before addressing details of Parent’s relief for compensatory education or services, it is necessary to address whether an appropriate remedy for the denial of a FAPE should consist of both tuition reimbursement/funding and compensatory education or services, which is being sought in the DPC.
The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.[37] Some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement (or funding) for the costs of a unilateral placement is also at issue for the same time period[38] (my emphasis). The Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit.
Unlike the Third Circuit, the Second Circuit's approach to compensatory education may leave room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement (funding) is denied under a Burlington/Carter analysis. [39]
It has been stated that where it is “permitted, it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meet the student's unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement.” [40]
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 [41].
It is noted on the first page of the amended DPC that Parent’s claims pertain to the 2020-2021, 2021-2022, and 2022-2023 SYs (Ex. P-O-1). Not only does the tuition reimbursement/funding claim only pertain to the 2022-2023 SY, but Parent’s representative has confirmed that certain school-based ABA services are no longer being sought as it could be seen as duplicative (T. P85-P86).
The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE [42]. Any awarded compensatory education would need to provide an appropriate remedy for a denial of a FAPE, factoring in the tuition funding claim being awarded.
As the claims and DOE’s failure to provide a FAPE cover multiple SYs, I find that an award of compensatory services is appropriate.
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.
Parent, supported by Parent’s witnesses, 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 detailed assessments and evaluations (Ex. P-P through P-S), supported by the testimony of Parent’s witnesses (Ex. P-Z, through P-EE), whom I find to be sufficiently qualified to express the opinions provided.
Parent’s witnesses detailed and individualized remedial proposals for Student are by-and-large credible and convincing (not factoring in certain equitable factors which I address below) and are based on detailed review of Student’s records, observations and assessments conducted.
Parent’s representative details the compensatory hours sought, based upon the recommendations of Parent’s witnesses in their various evaluations, in a closing statement (T. P85) as follows: a. 920 compensatory hours of ABA therapy (10 hours per week for 46 weeks, for 2 years).
b. 184 compensatory hours of social skills training (2 hours per week for 46 weeks, for 2 years).
c. 184 compensatory hours of parent counseling and training (2 hours per week for 46 weeks, for 2 years).
d. 184 compensatory hours of BCBA supervision of the home-based therapy (2 hours per week for 46 weeks, for 2 years).
e. 184 compensatory hours of SLT (2 hours per week for 46 weeks, for 2 years).
f. 184 compensatory hours of OT (2 hours per week for 46 weeks, for 2 years).
g. 40 compensatory hours of PT (60 minutes per week for 40 weeks, for 1 year).
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 the 2020-2021 and 2021-2022 SYs, 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, revise Student’s program, including altering interventions and goals, albeit minimally and insufficiently.
Efforts were 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. I note that Student was previously recommended and placed in a small class environment, namely 6: 1 + 1 (Ex. PC-14, P-C-15, P-D-19) that is still being recommended, namely a class size with no more than 6 students (Ex. P-P11), but was not being provided with the recommended special education program that utilizes ABA methodology (Ex. P-AA-2). Student was recommended a 1:1 paraprofessional (Ex. P-C-15, & P-D-20) and is still recommended a 1:1 paraprofessional (Ex. P-P-11). Student was recommended most (not all) of the related services (Ex. P-C-15, PC-16, & P-D-20) that Student is now being recommended (Ex. P-P-13), although duration and frequency are not identical and Parent maintains that Student did not receive therapeutic services for almost 1.5 years during the Covid-19 pandemic (Ex. P-P-4), which I address below.
Whilst the Parent’s witnesses 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 interim orders on IEEs.
These professionals did not personally interview and observe Student during the 2020-2021 SY, and to an extent relies upon extrapolating current observations to past documented data. I note however the recommendations do not seek three years of compensatory services, as the recommendations are not aimed at punishing the District[43] 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.” [44]
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"]”.
I find that there is significant overlap with the recommended “social skills training” and that a separate bank of compensatory services at the levels recommended would be duplicative or punitive, and Parent’s Witness 1 confirmed that Student has dedicated time facilitated by 1:1 instructors so that students can learn to engage with and communicate with each other, one of the factors contributing to the Attending School being found to be appropriate (Ex. P-Z-3).
Affiant 2 recommends a bank of 184 hours of compensatory SLT services (Ex. P-BB-2). This is based upon a qualitative analysis and is being recommended regardless of Student’s program going forward, to make up for the time lost in an inappropriate setting when Student was not receiving the appropriate amount of SLT. These hours are based on a qualitative approach, considered the hours required to make Student whole (Ex. P-Q-10). Other than the equitable factors mentioned, I find these hours to be reasonable.
I find Affiant 4’s recommended PT hours derived based on a qualitative approach to be reasonable (Ex. P-S10; P-DD-2) but note that the Attending School, found to be an appropriate placement for Student for the 2022-2023 SY, only provides Student with 1 x 45-minute session of PT (Ex. P-Z-4).
Affiant 3’s calculation of compensatory OT was “based on a qualitative and quantitative approach” (Ex. P-CC2), although it is asserted that these hours are calculated based purely on a qualitative approach (2 hours per week at 46 weeks per year) (Ex. P-R-19). I also note that the Attending School, found to be an appropriate placement for Student for the 2022-2023 SY, only provides Student with 1 x 45-minute session of OT (Ex. P-Z-4).
There was no clear evidence provided by either party as to when Student’s prior school for the 2020-2021 SY was closed due to the Covid-19 pandemic. Parent however notes having spoken to people at Student’s school numerous times about Student’s regression during remote learning and in the time since then in Parent’s ten-day notice (Ex. P-FF-1). Additionally it is asserted in the amended DPC that the District did not attempt to provide any compensatory services or even evaluate to determine how badly Student had regressed (Ex. P-O-2).
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 [45]. The State Review Officer (“SRO”) in this case specifically addressed the issue of services that 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).
The SRO further noted that 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).
The SRO went on to find:
“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.”
Based on those findings, the SRO determined that: 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”. There is similarly no evidence in the record that any such CSE review of the nature contemplated above occurred in this case.
Given that the SYs at issue include a period when Student would have been learning remotely, as confirmed by Parent’s documented concern, these above considerations find application to this case. It is documented in the neuropsychological evaluation that Parent noted that Student did not receive any therapeutic services for about 1.5 years during the Covid-19 pandemic (Ex. P-P-4). The CSE 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).
A District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of a FAPE to the child. [46]
The term ESY services means special education and related services that: are provided to a child with a disability: i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency.[47] I note that the IEPs prepared for the Student on record (Ex. P-C, & P-D) determined that Student was eligible to receive special education services and/or program during July/August (Ex. P-C-16, & P-D-21). Based on the record, I do not find that the IEP team’s determination should be disturbed, which is also supported by Parent’s Witness 1 testimony and the Affiants’ recommendations (Ex. P-P-12; P-R-20; P-X-6). Student therefore remained in an inappropriate placement where Student was not receiving a FAPE for the summer months during the 2022-2023 SY.
Additionally, even though Student was enrolled at the Attending School from September 8, 2022, because the DOE failed to provide transportation Student was forced to seek an interim order for transportation (Ex. IHO-VI). Accordingly, even though the Attending School has been found to be an appropriate placement for Student, resulting in a Prong II finding in favor of Parent, the delayed start resulting from the DOE’s failure to provide Student with transportation services (Ex. P-O-6) is a relevant factor in calculating compensatory services.
Based on the content of Affiant 2’s report, in which it documents Affiant’s conversation/interview with the Speech Therapist (defined on page 28), I note that: Student received Student’s own assistive technology device around May or June; there was training with Student’s parents and that they did great at adding what was necessary at home; Student according to Speech Therapist responded very well to the device, but could get very frustrated (Ex. P-Q-2, & P-Q-3). According to Affiant 2: Student was observed to use the device with prompting, but did not use it independently during the evaluation (Ex. P-Q-6); Parent reports that Student used the device to say core words, but that it was set up for activities in school, and did not contain relevant vocabulary for home activities; overall Student was not really using it according what Parent reported (Ex. P-Q-6); Student demonstrated difficulty with navigating Student’s current ACC device and benefited from maximal models and prompts; the evaluation evidenced that Student did not have a consistent, functional manner to communicate in all settings (Ex. P-Q-10).
Based on the contents of Affiant 3’s report, Parent reports that Student has a communication device from Student’s previous school, but that Parent did not have the ability to update the pictures available and many of them were reported not to be appropriate or useful for Student (Ex. P-R-1) and reported that Student did not use the communication device readily (Ex. P-R-2).
Parent’s Witness 1 testified that: Student greatly benefits from access to and training on Student’s communication device, which serves as a means for Student to electronically communicate Student’s wants and needs and allows Student to engage in meaningful interactions with others; Student is unable to vocalize any words or even speech sounds, resulting in an inability to communicate and frustration and isolation without access and ability to use Student’s communication device (Ex. P-Z-4). Given the success and progress of Student with the use of the ACC device employed at school, an appropriate award is catered for to provide Student with a similar means of communication at home and other environments, as well as appropriate training for Parent and Student.
All these above considerations have factored into my calculation of compensatory hours sought and awarded as follows (rounding has been used in the calculation, where required): a. 920 compensatory hours of ABA therapy (10 hours per week for 46 weeks, for 2 years) - adjusted award: 276 compensatory hours of ABA therapy awarded (i.e., +30%).
b. 184 compensatory hours of social skills training (2 hours per week for 46 weeks, for 2 years) claimed adjusted award: 28 compensatory hours of social skills training awarded (i.e., +15%).
c. 184 hours of compensatory PCAT (2 hours per week for 46 weeks, for 2 years) – 37 compensatory hours of PCAT awarded (i.e., +20%).
d. 184 compensatory hours of BCBA supervision claimed - adjusted award: 40 compensatory hours of BCBA supervision awarded (i.e., +22%).
h. 184 compensatory hours of SLT 184 compensatory hours of SLT (2 hours per week for 46 weeks, for 2 years) claimed - adjusted award: 101 compensatory hours of SLT awarded (i.e., +55%).
e. 184 compensatory hours of OT services (2 hours per week for 46 weeks, for 2 years) claimed - adjusted award: 64 compensatory hours of OT awarded (i.e., +35%).
f. 40 compensatory hours of PT (60 minutes per week for 40 weeks, for 1 year) - adjusted award: 35 compensatory hours of PT awarded (i.e., +88%).
g. 20 compensatory hours of AT training (Parent and Student) awarded. Remaining relief:
As part of the interim order on IEES, Parent’s request for an interim order for an FBA, BIP, AT evaluation, and an ABA Skills Assessment was denied (Ex. IHO-III). These were not expressly pursued at the IH or included as the part of the final relief requested (T. P85-P86). Factoring the complete relief awarded, as well as the Student’s significant progress attested to in the short time Student had been attending the Attending School, leading to a finding that the Attending School is an appropriate placement, I do not find that additional IEEs are required, especially when considering the reasons proffered by Parent’s witnesses. Affiant 2 and 3 recommended a feeding and swallowing evaluation to take place “as [Student’s] mother reports that [Student] is a very selective eater, with significant texture preferences” (Ex. P-Q-10; P-R-10). It is noted that Student is reported to be gluten and lactose intolerant. Student is also reported by Parent to eat only certain foods, and to limit diet to certain food textures, is a picky eater, and shows a strong preference for certain tastes, craves certain foods and tastes (Ex. P-R-7). Student is reported to prefer crunchy and spicy foods and will not eat anything with a mushy food texture (Ex. P-R-8).
The record does not support evidence that any of these “concerns” regarding Student’s diet are interfering or impacting Student’s ability to make educational progress. In fact, the Attending School’s mid-year progress report documents as part of Student’s progress achieved, an additional factor for finding the Attending School an appropriate placement, that Student now easily transitions into the group and sits next to Student’s classmates to complete art projects, play with sensory toys, and eat lunch (Ex. P-X-4) (my emphasis).
Lastly, the reasons proffered for recommending a home-based ABA program of two hours per week is being appropriately catered for not only by the compensatory hours of ABA being awarded, but also by the program offered at the Attending School, and to provide a sperate award for those services would be duplicative or punitive.
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:
1. ORDERED that, the DOE shall reimburse Parent the tuition payment made to the Attending School for the Student’s placement at the Attending School for the 2022-2023 school year in the sum of $100.00 (One Hundred Dollars), upon the submission of Parent’s proof of payment(s) to the Attending School in that amount for the 2022-2023 school year.
2. FURTHER ORDERED that, the DOE shall directly fund Student’s placement at the Attending School for the 2022-2023 school year in the sum of $131,775.00 (One Hundred and Thirty-One Thousand, Seven
Hundred and Seventy-Five Dollars).
3. FURTHER ORDERED that, if the NYC DOE has not commenced providing transportation services for the Student to the Attending School as at the date of this decision, then the DOE shall continue to provide transportation services on the terms set out in my interim order dated October 5, 2022 (Ex. IHO-VI) for the remainder of the 2022-2023 SY.
4. FURTHER ORDERED that, the CSE shall convene a review meeting within 21 (twenty-one) days to review the results of Parent’s independently obtained evaluations (Ex. P-P through P-S) and any reports from the Attending School, and prepare an appropriate IEP that includes at a minimum:
a) Accurate PLOPS.
b) Specific, meaningful, and measurable goals tailored to the Student and based on the Student’s current academic and functional levels.
c) Appropriate related services including OT, SLT, PT, as recommended by the independent evaluations, and at the recommended frequency and service delivery recommendations, in line with those being delivered at the Attending School.
d) Appropriate modifications and accommodations to be listed as part of the Student’s IEP program.
5. FURTHER ORDERED that, the DOE shall, at the DOE’s election, provide or fund an AT hardware and software at least equivalent to the AT device used by Student at the Attending School, for Student’s use at home, if the said school device is provided by the Attending School solely for use by Student when at school as part of Student’s educational program (which shall be confirmed by a representative of the Attending School by way of an affidavit to be provided to the DOE’s Implementation Unit if that is the case, detailing the exact AT hardware and software provided to Student, for Student’s use at school).
6. FURTHER 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 #8 of this Order for each of the compensatory services: a) 276 compensatory hours of ABA therapy.
b) 28 compensatory hours of social skills training.
c) 37 compensatory hours of PCAT.
d) 40 compensatory hours of BCBA supervision.
e) 101 compensatory hours of SLT awarded.
f) 64 compensatory hours of OT.
g) 35 compensatory hours of PT.
h) 20 compensatory hours of AT training.
by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
7. FURTHER ORDERED that, the bank of compensatory services set out in #6 of this Order shall not expire until the expiration of 2 (two) years from the date of this Order.
8. FURTHER ORDERED that the DOE shall make payment for the compensatory services ordered in #6 of this Order, at the prevailing market rate of the Parent’s duly licensed independent providers of choice capped at the lowest price the DOE’s Implementation Unit has paid for substantially similar services to the same providers during the twelve months preceding the date of this decision, or if it has not paid the same providers within the preceding twelve months, what it has paid for substantially similar services to a similar provider during the twelve months preceding the date of this decision.
9. FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
10. IT IS FURTHER ORDERED that, the DOE shall fund the necessary transportation costs to and from the service providers providing the awarded compensatory services, through the supply of MetroCard/s.
SO ORDERED.
DATED: February 21, 2023
__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
P-B. P-A Withdrawn - - DOE Functional Behavior Assessment 10/22/2018 12 pages
P-C. Individualized Education Program 10/21/2020 23 pages
P-D. Individualized Education Program 10/15/2021 28 pages
P-E. DOE Behavior Intervention Plan 06/02/2022 8 pages
P-F. Texts with Parent and School re: AT 10/09/2020 3 pages
P-G. Report Card 01/21/2021 1 page
P-H. REDACTED Psychosocial Assessment P-I Withdrawn - - 12/15/2018 11 pages
P-J. NYC Standard Operating Procedure Manual Excerpt 08/24/2020 6 pages
P-K. Rate Sheets P-L Withdrawn - - P-M Withdrawn - - 01/01/2022 3 pages
P-N. Affidavit of Co-Owner 09/28/2022 2 pages
P-O. Amended Due Process Complaint 09/07/2022 7 pages
P-P. Independent Neuropsychological Evaluation 08/15/2022 20 pages
P-Q. Independent Speech Language Evaluation 09/18/2022 12 pages
P-R. Independent Occupational Therapy Evaluation 10/14/2022 21 pages
P-S. Independent Physical Therapy Evaluation 12/28/2022 11 pages
P-T. Attending School Contract 08/16/2022 6 pages
P-U. Attending School Schedule 2022-2023 1 page
P-V. Attending School Attendance Records 2022-2023 1 page
P-W. Attending School On-Site and Remote Program Description 09/16/2022 3 pages
P-X. Attending School Mid-Year Progress Report 2022-2023 6 pages
P-Y. Tuition Affidavit 11/03/2022 1 page
P-Z. Affidavit of Parent’s Witness 1 Undated 5 pages
P-AA. Affidavit of Affiant 1 12/30/2022 3 pages
P-BB. Affidavit of Affiant 2 01/05/2023 2 pages
P-CC. Affidavit of Affiant 3 01/04/2023 2 pages
P-DD. Affidavit of Affiant 4 01/03/2023 2 pages
P-EE. Affidavit of Parent Undated 3 pages
P-FF. Ten Day Notice 08/10/2022 4 pages
DOE’S EXHIBITS
DOE-1 Consent for Additional Assessment 04/04/2022 1
DOE-2 PWN Additional Reevaluation 05/18/2022 1
DOE-3 AT Evaluation Referral 03/16/2022 5
DOE-4 Assistive Technology Evaluation 05/31/2022- 8
06/08/2022
DOE-5 Progress Monitoring 10/14/2021 2
DOE-6 Progress Monitoring 01/17/2022 2
DOE-7 Baseline Data Summary 09/13/2021- 1
10/13/2021
DOE-8 Baseline Data Summary 01/03/2022- 1
01/19/2022
DOE-9 Baseline Data Summary 04/01/2022- 1
05/17/2022
DOE-10 Withdrawn - - DOE-11 Progress Monitoring Tool for BIPs 09/13/2021- 17
05/23/2022
DOE-12 Social Update Undated 2
DOE-13 OT Clinical Guide 05/31/2022 3
IHO’S EXHIBITS
IHO-I Due Process Complaint and Email 06/06/2022 8
IHO-II Order on IEE 07/13/2022 6
IHO-III Order on IEEs (second order) 08/11/2022 22
IHO-IV Parent’s Amended Request for Impartial Hearing 09/07/2022 7
IHO-V Parent’s representative’s Email 09/23/2022 2
IHO-VI Interim Order on Transportation 10/05/2022 10
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] 20 U.S.C. § 1400 et seq.
[3] 34 C.F.R. § 300 et seq.
[4] Educ. Law Art. 89 § 4404 et seq.
[5] 8 NYCRR § Part 200.
[6] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[7] 20 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].
[8] 20 U.S.C. § 1415[f][3][E][i].
[9] Rowley, 458 U.S. at 203.
[10] 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]
[11] 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].
[12] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[13] 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].
[14] NYS Educ. Law § 4404(1)(c).
[15] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[16] 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].
[17] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[18] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[19] 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)
[20] 8 NYCRR § 200.3(a)(1).
[21] 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).
[22] (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]).
[23] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. the U.S. District Judge wrote: “Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465” (122 LRP 8348) [S.D.N.Y. 2015] (citations included). This case addressed a statute of limitations issue, where the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant school year; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant school year; and to produce an annual IEP by the first day of the relevant school year. It was conceded by In the circumstances, I find that there was a denial of a FAPE for all 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.
[24] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[25] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[26] Gagliardo, 489 F.3d at 115.
[27] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[28] Parent’s Witness 1’s signed but unattested statement was affirmed under oath on the record at the IH held on January 17, 2023 (T. P64-P65).
[29] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[30] 20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[31] 20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[32] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[33] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[34] Greenland Sch. Dist., 358 F.3d at 160.
[35] C.L., 744 F.3d at 840.
[36] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[37] 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.
[38] See for example D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"; and P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school".
[39] See Application of a Student with a Disability, Appeal No. 16-050.
[40] See Application of a Student with a Disability, Appeal No. 20-151.
[41] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[42] 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.
[43] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].
[44] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
[45] See Application of a Student with a Disability, Appeal No. 22-031.
[46] 34 C.F.R. § 300.106[a][2].
[47] 34 C.F.R. § 300.106[b].