NY IHO #226896: New York City... | Special Education Law

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CASE NUMBER: 573837 - NYC: 226896

FINDINGS OF FACT AND DECISION

Case Number: 226896

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

Date of Birth: REDACTED

School District: # REDACTED

Hearing Requested by: REDACTED (“Parent”)

Request Date/Date Complaint Filed: 06/13/2022

Date(s) of Hearing: 07/12/2022, 12/02/2022, and 12/06/2022

Actual Record Closed Date: 02/01/2023

Date of Decision: 02/01/2023

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”)

Parent (plus an interpreter)

For the Department of Education (“DOE”):

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

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 2, 2022

For the Student:

Parent’s representative

Parent

REDACTED (hereinafter referred to as “Father”)

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

REDACTED (hereinafter referred to as “Parent’s Witness 2”)

REDACTED (hereinafter referred to as “Parent’s Witness 3”)

For the DOE:

District’s representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2022

For the Student:

Parent’s representative

REDACTED (hereinafter referred to as “Parent’s Witness 4”)

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 13, 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 July 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, following the recusal of Previous IHO (defined on page 25) on July 18, 2022.

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. P-A-4,, & P-A-5).

The DPC included a request for an interim order for Independent Educational Evaluations (“IEEs”) (Ex. P-A-4, & P-A-5) and a limited hearing was held on July 12, 2022, to allow both parties an opportunity to present evidence and argument in support of their respective positions regarding that order (T. P32-55)^[2]. The Previous IHO issued an interim Order on IEEs on July 15, 2022^[3] (Ex. IHO-I), which IEEs were subsequently obtained and included in the record as part of Parent’s disclosure (Ex. P-N through P-T). The IH took place on December 2 and 6, 2022.

JURISDICTION

A decision in this matter is being rendered pursuant to the IDEA^[4] and its implementing regulations,^[5] and the New York State Education Law^[6] and its implementing regulations.^[7]

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” to meets its burden; and that the DOE was not conceding that it failed to provide Student with a FAPE for the SYs at issue. District’s representative waived the DOE’s opening statement. District’s representative confirmed that the DOE rested its case. The DOE did not submit a closing brief or make an oral closing statement at the conclusion of Parent’s case.

Parent, through the Parent’s representative, submitted an additional fourteen documents in support of the Parent’s case for the main hearing. Eight exhibits had previously been admitted by the Previous IHO at the limited hearing. Parent’s representative made an opening statement in which inter alia the relief claimed was summarized. A written closing brief was filed by the due date, which also summarized the final relief sought (Ex. IHO-II).

There were no formal objections to any of the documents admitted at the main hearing, although an objection had been addressed by the Previous IHO in regard to Ex-DOE-5-1. All exhibits that are admitted to the record are listed below (see Appendix B).

ISSUE(S) IN DISPUTE

As the DOE did not conceding 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 of the SYs at issue is to be determined. Additionally, based upon District’s representative’s comments at the status conference held on November 3, 2022 where it was asserted that Parent must show or make some kind of showing of the computation^[8] regarding the claim for compensatory education (as well as the questions put to Parent’s witnesses that were required for cross-examination), the amount compensatory services to be awarded, if it is found that the DOE failed to provide Student with a FAPE for one, some, or all of 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^[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]

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 not apply in this case.^[17]

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.”^[18]

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,^[19] 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).^[20] The IEPs must have been “reasonably calculated to provide some ‘meaningful’ benefit.”^[21]

Student’s Diagnosis (defined on page 25) and the impact it has had on Student’s learning and ability to progress is well documented in the IEPs (Ex. DOE-1, DOE-2, DOE-10, P-C, & P-D), the evaluations conducted (Ex. P-B, P-N through P-T), and the affidavits submitted (Ex. P-U through P-Z).

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 the 2021-2022, and the 2022-2023 SY, 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 SY, 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 SY:

Both parties disclosed the IEP relevant this is SY, which were admitted by the Previous IHO (Ex. DOE-2, & P-C^[22]). This IEP was developed for Student where the implementation period (11/13/2020-11/09/2021) relates to this SY, developed pursuant to IEP meetings held on November 9, 2020. This IEP does document instances of progress and specialized supports being provided. For example: “We are encouraging [Student] to make sense and comprehend longer texts by using post-its to stop and jot at important parts”; “[Student] applied some of the strategies his teacher had taught him to read and write words (especially regular past tense verbs)”; “He is now using higher-level thinking skills to answer complex questions but continues to require support in this area. He benefits from visual and verbal prompts when responding to these types of questions”; “[Student] can now follow multi step directions”; “Expressively, [Student] use this sentences increasing in length and complexity to communicate. He has shown improvement in producing grammatically correct sentences but occasionally requires verbal cues to correct errors. [Student] can express his wants and needs appropriately. [Student] has shown improvement in his vocabulary skills but continues to require support using contextual cues to figure out novel word meanings”; “Pragmatically, [Student] has shown great improvement in his ability to attend to the speaker/provider by providing eye contact and engaging in brief reciprocal conversations using initiation and commenting”; “During the previous year [Student] solely relied on peers in order to complete tasks whereas this year he does his best to complete tasks independently or given minimal provider support”; “He no longer requires a visual schedule in order to transition between tasks and is able to redirect if the iPad wasn’t given during the session due to an unforeseen circumstance (e.g., lack of time)”; “[Student] no longer demonstrates any behaviors out of frustration’; “Due to the significant progress made, [Student] no longer warrants individualized support and can continue to strive in a small group session with a greater focus on targeting pragmatic skills in addition to language goals”. (Ex. DOE-2-4; DOE-2-5).

Parent’s representative convincingly asserts that the District cannot make its case on documentary evidence alone (Ex. IHO-II-4, & IHO-II-5). In the present case, there are a number of instances where it would be prejudicial to Parent to merely accept, on the face of the documents proffered into evidence, the contents as facts.

For example, there was no witness from the Attending School or the CSE to explain how it came about that Student has apparently been receiving speech and language therapy (“SLT”) services twice a week individually (Ex. DOE-2-5), when the recommendation included only group services (Ex. DOE-2-18). There was no witness presented to confirm if the second entry for SLT had erroneously referred to “Group of 3”, instead of “Individual”. While it seems curious that the CSE team would be recommending two SLT group services, one being in a group size of four and the other in a group size of three, this recommendation is not inconsistent with the prior written notice disclosed by the DOE in relation to the IEP meeting held on February 14, 2020 (Ex. DOE-15-2), which only recommended SLT group services. It may very well have been that the error was the reference to individual services being provided, although it was also documented in the section headed “Speech/Language:” that Student no longer warranted individualized support “due to the significant progress made”.

According to the counselor’s report, Student’s maladaptive behaviors are documented in the IEP as impacting Student’s social interactions with other students, as well as Student’s difficulty being able to utilize the “variety of coping skills” that Student has been exposed to in a real situation, despite being able to recall some of these skills. It is also documented that student used (at that time) inappropriate/language towards students when he is upset about something and that this may be accompanied by walking around the room or putting his head down and refusing to work. Student, according to the IEP, disable to regain focus on the task and move forward from his negative feelings with some prompting and refocusing. It is also documented that student required (at that time) frequent redirection walking in the hallway or on the stairs (Ex. DOE-2-7). Not only where there no witnesses presented that could explain the apparent contradiction that, according to the counselor’s report, Student could not rely on the “variety of coping skills” that Student has been exposed to in a real situation without assistance and needed prompting and refocusing in order to regain focus on the task and move forward, yet according to the teacher Student’s social emotional skills were documented as being adequate (Ex. DOE-2-7). There was no witness who could explain exactly how much instruction Student had missed out on during the “frequent re-direction” that occurred while “walking in the hallway or on the stairs” (my emphasis).

It is noted in the IEP that since the previous IEP review, which based on the Prior Written Notice appears to have taken place on February 14, 2020 (Ex. DOE-15-2), there was a recommendation to rule out ADHD but that Parent stated that due to COVID-19, a visit to a specialist had (at that time) not been possible (Ex. DOE-2-8). This was documented as a Parent concern under the section headed “PHYSICAL DEVELOPMENT”. Despite noting Student’s Diagnosis at that time based upon the contents of Parent’s Private Hospital Evaluation (Ex. P-B), it appears that the DOE left the responsibility up to Parent to have Student’s potential ADHD diagnosed or ruled out, and that no further evaluations were conducted by the District in all of Student’s areas of suspected disability in developing Student’s IEP, despite being aware of this suspicion (Ex-DOE-2-8). I also note that the very same Private Hospital Evaluation recommended placement in a small, structured class for children with average cognitive and intellectual functioning, but with delays in language and/or social development with related services. A change in Student’s speech therapy mandate to individual speech therapy twice a week (with bilingual speech therapy to be considered) and the continuation of counselling services was recommended (Ex. P-B-3). Despite considering this evaluation, the CSE team failed to change at least one of Student’s mandated SLT group sessions to individual. The evaluation also recommended further evaluations be obtained including an occupational therapy evaluation to assess sensory integration and processing difficulties, but this was not addressed by the CSE team (Ex. P-B-4).

The District cannot be afforded the benefit of the doubt with regards to the various inconsistencies appearing in the IEP in circumstances where no witnesses were presented, whom Parent would otherwise have had the right to cross-examine to challenge this evidence.

Whilst I agree with Parent’s representative’s assertion that the documentation submitted by the District should hold little probative value in determining the outcome of the case (Ex. IHO-II-5), I do not agree that the District has to “show progress in all areas” (Ex. IHO-II-2). I address this further under the calculation of compensatory services being awarded.

2021-2022, and 2022-2023 SYs:

The IEP developed for Student from the previous SY (Ex. DOE-2) (addressed above) had a projected annual review date of November 9, 2021, which program continued into the 2020-2021 SY.

On November 5, 2021, an IEP was developed for Student with a projected implementation period commencing November 8, 2021, and a projected annual review date of November 5, 2022 (Ex. DOE-10-1).

In this IEP the CSE team documents various concerns, including behavioral concerns, noting: “[Student’s] mother reports that she is concerned about [Student’s] ability to talk about past events in a cohesive manner. She reports that he has difficulty communicating times of events (e.g. today, yesterday, 2 days ago), confusing the listener. She also reports that she notices [Student] “repeats himself a lot”, specifically when over-excited or anxious about something. No abnormal disfluencies noted in speech therapy or classroom”; “[Student] demonstrates some difficulty in completing multi-step math problems independently. [Student] often displays frustration when asked to write out his work when writing for long periods of time. [Student] will refuse to write if he is feeling overwhelmed with topic. He can be easily distracted by his environment, particularly if there are noises or people talking nearby. [Student] sometimes gets overwhelmed when looking at a longer project or assignment and will begin to say that he wants to go home. Parent Concerns: Mom is concerned about handwriting and writing in general. She is also concerned about [Student] repeating unwanted behaviors”; He needs to continue to work on not mimicking unwanted behavior and needs to work on regulating frustrations” (Ex. DOE-10-2; DOE-10-3; DOE-10-21)

Despite these concerns being noted in Student’s IEP, there was still no formal evaluation conducted. Student’s program continued to remain materially the same; 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 rule out a potential ADHD diagnosis. In fact, the Integrated Co-Teaching Services for Math decreased from ten periods to seven (Ex. DOE-10-14).

A District must provide extended SY programming services (“ESYS”) 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.^[23] The term ESYS 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.^[24]

The CSE team determined that Student required ESYS in order to receive a FAPE. It is curious how this determination was made given the lack of formal testing, especially since ESYS had been determined to not be necessary in order for Student to receive a FAPE for the previous SY (compare Ex. DOE-10-15 with DOE-2-18). Again, without any DOE witnesses, none of these apparent contradictions can be explained or resolved, certainly not in favor of the DOE who bears the burden of proof.

According to the attendance page of the Student’s IEP (Ex. DOE-10-21, & DOE-10-22), there was no school psychologist present at this IEP meeting.

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).^[25]

In New York, the CSE carries out the functions of the IEP team.^[26] 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.^[27]

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 November 5, 2021. While it has been held that not all procedural errors render an IEP legally inadequate under the IDEA^[28], 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, continued to be left unchecked, and no additional counselling was recommended. It cannot be proven as part of the DOE’s obligation to discharge its burden, that it did not also impact the ability of the CSE 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 authors of Private Hospital evaluation were motivating for Student. Additionally, unlike at the February 14, 2022 IEP meeting (Ex. DOE-9-25) where the Parent was provided a translator, this service was not made available at the November 5, 2021 IEP meeting (Ex. DOE-10-21, & DOE-10-22).

These factors together lend significant credence to the Parent’s assertions in the DPC that the DOE failed to, inter alia: “provide an appropriate program and placement for Student”; “develop appropriate present levels of performance on the Student’s IEP”; “to comprehensively evaluate the Student”; and allow “Parent to meaningfully participate in the development of Student’s educational program” (Ex. P-A).

On February 2nd, 2022 and occupational therapy (“OT”) evaluation was conducted by the DOE, which evaluation was requested by Parent “secondary to concerns they have regarding [Student’s] handwriting” (Ex. DOE-7-9). The OT “testing concluded that [Student] exhibits adequate skills to support participation in school in the areas of access/movement, activities of daily living, management of tools/materials, pre-writing/writing, in sensory skills for learning” (Ex. DOE-7-9). Several suggestions were provided including, inter alia, a physical therapy (“PT”) observation and school counseling (Ex. DOE-7-11). Despite its own evaluator recommending a PT observation, none was forthcoming by the DOE and Parent had to obtain an order from the Previous IHO to secure such an evaluation.

On February 14, 2022, an IEP was developed for Student with a projected implementation period commencing February 28, 2022, and a projected annual review date of February 14, 2023 (Ex. DOE-9-1).

Despite it being noted in Student’s IEP, inter alia, that: “Parent Concerns: Mom is concerned about handwriting and writing in general. She is also concerned about [Student] repeating unwanted behaviors. His mother requested that he be evaluated for occupational therapy, however, school-based occupational therapy services are not recommended at this time. [Student's] mother reports that she spoke to his pediatrician regarding her concerns and he was referred for outside OT and PT services which he currently receives.” (Ex. DOE-9-3).

Once again Student’s program continued to remain materially the same; no additional formal evaluations were conducted, save for the OT evaluation; 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. It was only after Parent filed the DPC that the DOE determined that a neuropsychological and psychiatric assessment was necessary and possibly a functional behavior assessment (“FBA”) (Ex. DOE-4).

Neither party disclosed an IEP developed subsequent to the IEP developed at the February 14, 2022, IEP meeting. I address the impact of equitable considerations on compensatory services recommended by Parent’s witnesses when addressing the appropriate remedy below, but it is clear from the evidence submitted by Parent and highlighted by the most recent evaluations and reports (Ex. P-M through 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; have an appropriately assembled CSE team to conduct Student’s one IEP meeting; recommend sufficient support services; provide educational services, with appropriate supports to access that education; 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 limited supports offered resulted in a deprivation of educational benefits.

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 2022-2023 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.^[29]

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.^[30] 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^[31].

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 some of Parent’s witnesses whether the proposed hours sought could reasonably fit in with Student’s schedule, or whether it may overwhelm Student, as questioned the purpose and calculations of those witnesses.

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-N through P-T), supported by the testimony of Parent’s witnesses (Ex. P-U, through P-Z; T. P_), 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 and informal assessments/interviews.

Parent’s representative details the compensatory hours sought, based upon the recommendations of Parent’s witnesses in their various evaluations, in parent’s closing brief (Ex. IHO-II-) as follows:

• 230 hours of compensatory social skills training (2 hours per week, or 92 hours per year for 2.5 years).
• 230 hours of compensatory counselling (2 hours per week, or 92 hours per year for 2.5 years).
• 115 hours of compensatory BCBA supervision (46 hours per year for 2.5 years).
• 207 hours of compensatory SLT (1.5 hours per week, or 69 hours per year for 3 years).
• 30 hours of compensatory AT training, including of Parent and support staff training (Ex. R-13; P-W-2).
• 207 hours of compensatory OT services (1.5 hours per week, or 69 hours per year for 3 years).
• 69 hours of compensatory PT (45 minutes per week for 46 weeks, for 2 years) (Ex. P-T-11).
• 1150 hours of compensatory hours of ABA therapy (10 hours per week for 46 weeks, for 2.5 years).
• 115 hours of compensatory parent training (46 hours per year for 2.5 years).

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, revise Student’s program, including altering interventions and goals, albeit minimally and insufficiently. Related services were provided, and progress was documented, especially during the 2020-2021 SY. Parent was reported to be optimistic with the specialized supports (Ex. DOE-2-6), and pleased with the recommendation made (Ex. DOE-2-24)

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 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 Previous IHO’s Order on IEEs. These professionals did not personally interview and observe Student during the 2020-2021 SY, or even the 2021-2022 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^[32] 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.”^[33]

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 Parent’s Witness 1, 2, 3, and Parent’s Witness 4 to elicit facts from which it could be ascertained whether the recommended hours would become burdensome, and how the hours would be used.

Parent’s Witness 1 testified during cross-examination as to what the recommended ABA services would provide Student, which a “behavioral para.” not trained in ABA would provide. Based upon the response, it is clear that the goals which the ABA compensatory services would be used to address or remediate be used towards targeting Student’s “attention, communication, socialization, and self-regulations skills” (my emphasis) (Ex. P-P-12), both at school and home “and would generalize across all settings” (Ex. IHO-II-6). Parent’s Witness 1 testified as to the importance of being able to provide the services in the home, which includes the “community” and “also includes the parks and things like that, which we also used to improve social skills, social skills being with, you know, other children of his age, his siblings and whatnot”.

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 he did not consider the other hours of related services recommended by other providers. Additionally, Parent’s Witness 1 testified that those “hours could be used if, until he gets a proper placement, a BCBA could work with him in the school with the bank of hours” and that “those hours could also be used in the home to provide ABA support in the home, as well”. I find that the recommended ABA compensatory hours are duplicative of the recommendation to have push in ABA services at the Attending School whilst a proper placement is secured. Accordingly, only a bank of compensatory services ABA services is being awarded, which is to be used both at school (while an appropriate placement is located) and home. This issue of overlap also applies to the recommended parent training, which it's recommended in order “to enable Parent to reinforce the behavior plan in place at school and collaborate effectively with [Student’s] team of educators” (Ex. P-O-17). The record does not support the level of services being recommended given the stated purpose, as well as the ABA support to be provided in the home.

Parent’s Witness 3 recommended a bank of 207 hours of compensatory SLT services (Ex. P-V-2). This is based upon a qualitative and quantitative analysis, yet it is calculated precisely by “providing approximately 1.5 hours per week for 46 weeks per approximately 3 years” (Ex. P-Q-29). It seems improbable that Student would require precisely the same level of remedial services each year for three consecutive years if a qualitative analysis did in fact factor in.

Although District representative cross-examined Parent’s Witness 4, I did not find that her testimony was discredited and therefore credit Parent’s Witness 4’s conclusions and OT recommendations. Parent’s Witness 4 recommended a bank of 207 hours of compensatory OT services.

This is based upon solely on a qualitative analysis, yet it is calculated precisely by “providing approximately 1.5 hours per week for 3 years at 46 weeks per year” (Ex. P-S-19). It seems improbable that Student would require precisely the same level of remedial services each year for three consecutive years if solely a pure qualitative analysis was used.

Affiant 2’s calculation of compensatory PT was “derived from a quantitative clinical approach” (my emphasis), which I find convincing and properly supported by Affiant’s testing and conclusions (Ex. P-T-11). Affiant’s 2 however indicates in her affidavit that the hours were derived from a qualitative approach (Ex. P-Y-2).

There was no clear evidence provided by either party as to when the Attending School was closed due to the Covid-19 pandemic. The DOE however disclosed a Related Service Adaptations for Blended and Remote Learning document that catered for services to be provided remotely either if in-person learning were to be suspended or if Parent elects fully remote at any time. 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^[34]. 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”.

Given that the SYs at issue includes a period when Student would have been learning remotely, these above considerations find application to this case. There is no evidence that the CSE review of the nature contemplated above has occurred. 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).

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):

• 230 hours of compensatory social skills training (2 hours per week, or 92 hours per year for 2.5 years) claimed - adjusted award: 46 compensatory hours of social skills training awarded (i.e., +20%).
• 230 hours of compensatory counselling (2 hours per week, or 92 hours per year for 2.5 years) claimed - adjusted award: 150 compensatory hours of counselling awarded (i.e., +65%).
• 115 hours of compensatory BCBA supervision claimed - adjusted award: 44 compensatory hours of BCBA supervision awarded (i.e., +38%).
• 207 hours of compensatory SLT (1.5 hours per week, or 69 hours per year for 3 years) claimed -adjusted award: 72 compensatory hours of SLT awarded (i.e., +35%).
• 30 hours of compensatory AT training - adjusted award: 30 compensatory hours of AT training awarded (i.e., 100%).
• 207 hours of compensatory OT services (1.5 hours per week, or 69 hours per year for 3 years) claimed - adjusted award: 145 compensatory hours of OT awarded (i.e., +70%).
• 69 hours of compensatory PT (45 minutes per week for 46 weeks, for 2 years) - adjusted award: 55 compensatory hours of PT awarded (i.e., +80%).
• 1150 hours of compensatory hours of ABA therapy (10 hours per week for 46 weeks, for 2.5 years) - adjusted award: 437 compensatory hours of ABA therapy awarded (i.e., +38%).
• 115 hours of compensatory parent training (46 hours per year for 2.5 years) - 44 compensatory hours of parent training awarded (i.e., +38%).

Remaining relief:

Parent’s Witness 2 recommended a 1:1 paraprofessional which Student requires “due to his need for redirection, low motivation, and difficulty staying on task” (Ex. P-P-10). Parent’s Witness 2 testified during cross-examination that: Student has a lot of difficulty with his motivation when he's in school and also staying on task, and that the paraprofessional would be helping with redirecting him; in some cases, probably explaining instructions, directions, refocusing him because he does have some difficulty with verbal comprehension; so those would be the main things that the paraprofessional would be doing, trying to keep him engaged and breaking things down. The reason for recommending a paraprofessional for Student, given all the other services Student is being awarded, which are aimed at addressing these very issues, let alone the school placement being ordered, is unconvincing and is denied.

I find that the recommended assistive technology device is properly supported by Affiant 1’s evaluation (Ex. P-R), and testimony (P-W), and is therefore being ordered as part of the award, as well as the recommended AT training.

Parent’s Witness 4 recommended a feeding evaluation to take place “to further assess limited diet and feeding concerns” (Ex. P-S-20; & P-X-02). Student has a documented history of being a “picky eater”, and does not eat anything with sauce, he will eat macaroni and meat plain, chicken when it is breaded and or boiled and broken into small pieces call my likes broccoli, spinach, oranges, apples, watermelon and blueberries; prefers drinking water and orange juice (Ex. DOE-6-1). 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, Parent’s Witness 1 observed that Student did not eat any of his food because he was disrupting and play fighting and talking and socializing. Besides typical children's behavior at lunch and on the playground, any maladaptive behaviors that might be interfering with Student eating his lunch are being addressed through the compensatory services award, and ultimately a new school placement, and accordingly the request for a feeding evaluation is denied.

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 defer the Student’s placement to the Central Based Support Team for placement in an appropriate NYS-approved non-public school program that is consistent with the recommendations made in Parent’s independently obtained evaluations (Ex. P-N through P-T).
• 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-N through P-T) and prepare an appropriate IEP that includes at a minimum:
• Accurate PLOPS.
• Specific, meaningful, and measurable goals tailored to the Student and based on the Student’s current academic and functional levels.
• A new and appropriate educational placement consistent with #1 of this Order.
• Appropriate related services including OT, SLT, PT, and counselling (which does not need to include cognitive behavior therapy^[35]), as recommended by the independent evaluations, and at the recommended frequency and service delivery recommendations.
• The AT hardware and software recommended by Affiant 1 (Ex. P-R; & P-W).
• Appropriate modifications and accommodations to be listed as part of the Student’s IEP program.
• FURTHER ORDERED that, the DOE shall, at the DOE’s election, provide or fund the AT hardware and software recommended by Affiant 1 (Ex. P-R; & P-W) for Student’s use as part of Student’s educational program.
• 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 #5 of this Order for each of the compensatory services:
• 46 compensatory hours of social skills training.
• 150 compensatory hours of counselling.
• 44 compensatory hours of BCBA supervision.
• 72 compensatory hours of SLT awarded.
• 30 compensatory hours of AT training.
• 145 compensatory hours of OT.
• 55 compensatory hours of PT.
• 437 compensatory hours of ABA therapy.
• 44 compensatory hours of parent training.

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 #3 of this Order shall not expire until the expiration of 2 (two) years from the date of this Order.
• FURTHER ORDERED that the DOE shall make payment for the compensatory services ordered in #3 of this Order, at the prevailing market rate of the Parent’s duly licensed independent provider of choice capped at the lowest price the DOE’s Implementation Unit has paid for substantially similar services to the same provider during the twelve months preceding the date of this decision, or if it has not paid the same provider 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.
• FURTHER ORDERED that, the DOE’s implementation unit shall authorize all services hereby ordered within 15 (fifteen) days.
• 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 1, 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^[36]

PARENT’S EXHIBITS

Exhibit

Document

Date

Pages

P-A

Parent’s Impartial Hearing Request

06/13/2022

P-B

Private Hospital Evaluation

04/24/2019

P-C

Individualized Education Program

11/09/2020

P-D

Individualized Education Program

02/14/2022

P-E

ER Note

05/25/2022

P-F

Request for Records Correspondence

05/10/2022

P-G

Request for Records Second Correspondence

05/31/2022

P-H

Evaluation Rate Sheets

01/01/2022

P-I

Withdrawn

P-J

Withdrawn

P-K

Withdrawn

P-L

Withdrawn

P-M

Hospital Visit Summary

10/13/2022

P-N

Independent ABA Skills Assessment

10/26/2022

P-O

Independent Functional Behavior Assessment

10/26/2022

P-P

Independent Neuropsychological Evaluation

07/28/2022

P-Q

Independent Speech/Language Evaluation

10/30/2022

P-R

Independent Assistive Technology Evaluation

10/03/2022

P-S

Independent Occupational Therapy Evaluation

08/22/2022

P-T

Independent Physical Therapy Evaluation

08/16/2022

P-U

Affidavit of Parent’s Witness 2

11/09/2022

P-V

Affidavit of Parent’s Witness 3

11/10/2022

P-W

Affidavit of Affiant 1

11/16/2022

P-X

Affidavit of parent’s Witness 4

11/14/2022

P-Y

Affidavit of Affiant 2

11/28/2022

P-Z

Affidavit of Parent’s Witness 1

11/23/2022

DOE’S EXHIBITS

Exhibit

Document

Date

Pages

DOE-1

IEP-Spanish

02/14/2022

DOE-2

IEP

11/09/2020

DOE-3^[37]

Psychoeducational Evaluation Report

02/07/2020

DOE-4

Prior Written Notice – Evaluations

06/17/2022

DOE-5^[38]

Request for Evaluations

05/23/2022

DOE-6

Social History Update

02/07/2020

DOE-7

OT Evaluation

02/02/2022

DOE-8

Prior Written Notice

02/21/2022

DOE-9^[39]

Withdrawn

DOE-10

IEP

11/05/2021

DOE-11

Prior Written Notice

11/11/2021

DOE-12

Adaptation for Blended and Remote

01/14/2021

DOE-13

School Location Letter

11/18/2021

DOE-14

Psychoeducational Evaluation Report

02/07/2020

DOE-15

Prior Written Notice

02/25/2020

IHO’S EXHIBITS

Exhibit

Document

Date

Pages

IHO-I

Previous IHO’s Interim Order on IEEs

07/15/2022

IHO-II

Parent’s representative’s Closing Brief

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 complete transcript was not available at the time this decision was rendered and therefore references to page numbers is limited.

[3] That order is being admitted to the record as Exhibit IHO-I.

[4] U.S.C. § 1400 et seq.

[5] C.F.R. § 300 et seq.

[6] Educ. Law Art. 89 § 4404 et seq.

[7] NYCRR § Part 200.

[8] Parent’s representative responded to these assertions indicating that Parent bears no burden.

[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] NYS Educ. Law § 4404(1)(c).

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

[19] 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].

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

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

[22] The contents of the two documents are the same, although the formatting is different, which accounts for the discrepancy in page numbering between the two exhibits. Due to that fact, one of the duplicates has not been removed from the record.

[23] C.F.R. § 300.106[a][2].

[24] C.F.R. § 300.106[b].

[25] 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)

[26] NYCRR § 200.3(a)(1)

[27] 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).

[28] (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]).

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

[30] 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.

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

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

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

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

[35] Given the purpose for which it was recommended and the compensatory services awarded (Ex. P-U-3).

[36] Exhibits DOE-1 through DOE-7 and Exhibits P-A through P-H were admitted by the Previous IHO to the record at the limited hearing held on July 12, 2022. Exhibits DOE-8 through DOE-15 and Exhibits P-M through P-Z (save for Exhibit P-X) were admitted by me at the due process hearing held on December 2, 2022. Exhibit P-X was admitted by me at the due process hearing held on December 6, 2022.

[37] Although this exhibit is described in the DOE’s Index as “Classroom observation” and was admitted by the Previous IHO as such, the actual document is a psychoeducational evaluation report. The contents of the two documents are the same, although the formatting is different, which accounts for the discrepancy in page numbering between the two exhibits. Due to that fact, one of the duplicates has not been removed from the record.

[38] Exhibit 5 was admitted, but the previous IHO made a note that any reference to page Ex. DOE-5-1 thereof should reference the record and the correction that was noted therein (T. P37-41).

[39] This is a duplicate copy of Ex. P-D and therefore has been withdrawn from the record.

New York City Department of Education, Impartial Hearing Decision

JURISDICTION

ORDER