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FINDINGS OF FACT AND DECISION
Case Number: 226942
Student’s Name: [REDACTED]
School District: [REDACTED]
Impartial Hearing Officer: Richard J. Zeitler, Jr.
Date of Filing: [REDACTED]
Hearing Requested by: Parent
Dates of Hearing: [REDACTED]
Record Close Date: 11/04/2023
Date of Decision: 11/18/2023 Case No. [573915]
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent, pro se
For the Department of Education:
[REDACTED], Consultant Impartial Hearing Representative
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent, pro se
For the Department of Education:
[REDACTED], Esq.
Names and Titles of Persons Who Appeared [REDACTED]
For the Student:
[REDACTED], Parent, pro se
For the Department of Education:
[REDACTED], Esq.
Background
On [REDACTED],[1] the Parent, pro se, filed a due process complaint (DPC), as amended on [REDACTED],[2] against the New York City Department of Education (DOE, Department, or District), on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (IDEA or the Act),[3] and the New York State Education Law (Educ. Law).[4] The Amended DPC (ADPC) essentially asserts that the Student has been denied a free and appropriate public education (FAPE) in that the Committee on Special Education (CSE) failed to classify the Student as a student with a disability and recommend special education services. 5 The Parent seeks an award of special education services. [6]
Procedural History
I was appointed Impartial Hearing Officer (IHO) for this case on July 5, 2022. A Pre- Hearing Conference was held before me on July 22, 2022. I issued a Pre-Hearing Conference Summary and Order on July 28, 2023, as well as Scheduling Orders on August 17, 2022, September 21, 2022, September 26, 2022, December 5, 2022, December 9, 2022, December 15, 2022, January 31, 2023, February 9, 2023, April 10. 2023, April 27, 2023, May 18, 2023, and August 29, 2023.[7] I also issued Orders of Extension on August 17, 2022, December [5], 2022, December 9, 2022, January 31, 2023, February 9, 2023, April 10, 2023, April 27, 2023, May 18, 2023, September 15, 2023, and September 18, 2023.[8] A Due Process Merits Hearing was scheduled for [REDACTED]; after the hearing began, however, the parties entered into a Statement of Agreement and Order for a series of Independent Educational Evaluations (IEEs) to be conducted, and the hearing was adjourned pending the evaluations. [9] Case No. [573915]
The Due Process Merits Hearing was held before me on [REDACTED].[10] All exhibits offered by the parties were admitted without objection.[11] The Department did not produce any witnesses, and the Parent testified on her own behalf but offered no other witnesses. This decision now follows.
Findings of Fact
At the hearing, the following was not in dispute. The Student is now [REDACTED] years old, and during the 2021-2022 school year, when he was in 4th grade at the Private School, the Department determined that the Student should not be classified as a student with a disability. [12]
2021-2022 Evaluations
A DOE psychoeducational evaluation conducted on May 6, 2022, described the Student’s “full scale IQ [as] within the Average range” and that “all index scores, which include verbal comprehension, visual spatial ability, fluid reasoning, working memory and processing speed, fell within the Average range[.]”[13] His language, math, and writing, however showed variable results, with verbal comprehension in the 45th percentile, math problem solving and numerical operations in the 45th percentile, vocabulary in the 25th percentile, and sentence composition in the 16th percentile.[14] In DOE occupational therapy (OT) and DOE speech-language therapy (SLT) evaluations performed on January 28, 2022, and March 28, 2022, respectively, he did not exhibit speech-language difficulties[15] and, although there were some OT organizational difficulties, it was determined that these “[c]oncerns do not significantly interfere with function and participation in school.”[16] Finally, a physical therapy (PT) examine was conducted of the conditions had a direct impact on the Student’s ability to access a curriculum and, therefore, I am issuing this findings of fact and decision solely based upon the disabilities and deficits described in the body of this decision. Case No. [573915]
Student on February 9, 2022, and PT was not recommended.[17] No program was developed, in an Individualized Education Services Program (IESP) or otherwise, and no services were recommended, for either the 2021-2022 school year or the 2022-2023 school year.
2022-2023 IEEs
During the 2022-2023 school year, when the Student was in 5th grade, 18 he was evaluated again, pursuant to the Statement of Agreement and Order, between February 28, 2023, and March [18], 2023.[19] Before the IEEs were conducted, however, a Certified Pediatric Nurse Practitioner (CPNP) noted in hospital correspondence dated December 6, 2022, that the Student had “a diagnosis of ADHD” [Attention Deficit, Hyperactivity Disorder], and that “psychoeducational testing should be performed.”[20] The CPNP also recommended that consideration be given “in the classroom” to: “more support, guidance, positive reinforcement and feedback”; “a high teacher-to-student ratio”; “placement in an inclusion/collaborative teaching classroom”; providing “[t]esting accommodations and modifications if needed” but, “at a minimum . . . extended time for testing, and the opportunity to take or finish tests in a quiet, separate location”; “[r]efocusing, redirection, check[ing] for understanding, reteaching as necessary, [and] support for organizational skills”; “frequent breaks as needed”; and “a fidget [device] in class [to] help decrease anxiety[.]” [21]
IEE Neuropsychological Evaluation
During the Student’s neuropsychological evaluation, conducted over five sessions between February 28, 2023, and March 16, 2023, he continued to show variability in his scores, with many in the average range, but also some categories showing deficits. For example, while he performed average in some reading categories, his overall scores for Written Language was in the 27th percentile and his overall Math scores were in the 23rd percentile, while specific categories included written expression in the 39th percentile, reading comprehension in the 30th percentile, spelling in the 23rd percentile, object naming in the 7th percentile, math fluency in the Case No. [573915]
34th percentile, and math computation in the 16th percentile.[22] On the Executive Functioning test, the Student “made no errors, but his speed was below expected level” for the first part; for the second part, he “went about the task quicker but made more errors”; and for the third part, he “performed at expected levels[,] when accounting for self-corrections.”[23] At times he also “seemed to struggle with instructions[.]” [24]
During the evaluation, the Neuropsychologist also found the Student had socio-emotional issues. He had “sensitivity . . . internally” and “he w[ould] get upset by things” such as when, after he “was awarded Student of the Week for demonstrating resiliency in class[,]” he “believed he did not deserve the award and tore it up.”[25] The Student was found to “be particularly sensitive to loss and rejection, which leads him to increase his dependence on others . . . even when he does not require it” and he “struggle[s] to see his external environment in accurate ways, thereby undermining effective understanding of himself or others in a particular environment.”[26] He also has “significant anxiety around being liked, cared for, pleasing to others and adequate[,]” which are “preoccupations [that] can lead [him] to struggle at times in school, especially when learning new skills, and become over reliant on help from other adults, like teachers.”[27] Upon all the above findings, the Neuropsychologist recommended “additional support” in education, especially in mathematics, testing modifications including “additional time on tests to account for his anxiety in the academic setting[,]” and psychotherapy. [28]
IEE SLT Evaluation
The IEE SLT evaluation, performed on March 6, 2023, revealed the following. The Student was “not receiving any special services” at the time, and while “[h]e enjoys reading[,]” his reading “[g]rades [we]re weak and declining.”[29] It was “hard for him to follow multiple-step directions and complex verbal commands” and he “often requires repetition, rephrasing and Case No. [573915] having spoken information broken down for understanding.”[30] More specifically, it was noted that he showed “difficulty generating an organized and fluent narrative” and that there was “latency in response times and extended time [wa]s necessary for him to process information and requests.”[31] He generally scored well in the spoken language assessment, although he showed lower scores in metalinguistic language skills, such as inferential language in the 47th percentile and non-literal language in the 39th percentile.[32] His Meaning from Context score was in the 12 percentile, and his Idiomatic Language score was in the 2nd percentile.[33] On his Word Retrieval/Rapid Naming test, he “had 13 errors, well exceeding the criterion of allowable errors (4)[,]” which “reveal[ed] a problem with rapid naming and word retrieval” and “indicated [that this] problem may have a negative impact on his overall fluency and accentuate his narrative language difficulties.” [34]
The IEE SLT evaluator’s overall impression was that while the Student “present[ed] with an adequate foundation of language skills[,]” there were “isolated deficits . . . seen in higherorder, metalinguistic language skills, such as gaining meaning from context and idiomatic language.”[35] These challenges, coupled with his “word finding and word retrieval difficulties” and a “demonstrated . . . latency in response times,” led the IEE SLT evaluator to conclude that the Student should have “Speech-language therapy services” and “classroom accommodations” including “preferential seating, [a] copy of class notes, pre-teaching, checks for understanding, adequate pacing, pause time for processing . . . use of visual aids[,]” and “[s]upport for executive functions to help [him] organize and self-regulate.”[36] The SLT evaluator recommended services “2 x week, 1 x 1:1 and 1 x 3:1[,]” as well as a “comprehensive auditory processing evaluation with further testing to examine speech discrimination skills and processing rate.” [37]
IEE OT Evaluation Case No. [573915]
The IEE OT evaluation was performed on March 18, 2023. The IEE OT evaluator reported two areas of deficits. First, the Student “fell 1 standard deviation below the mean” in writing speed, which was 68.75 letters per minute (the standard is 84.8 letters).[38] The second were his executive functioning skills.
The Student’s English language arts (ELA) teacher reported that the Student “has a difficult time with independent seat work” and “does not entirely understand directions and . . . is inconsistent with starting his work on time and can become easily distracted.”[39] He would “hand things in incomplete, [and] at times not even realiz[e] that work is incomplete.”[40] He was “inconsistent in recalling and following classroom procedures” and had “difficulty remembering instructional sequences after normal instruction.” [41]
The OT evaluator concluded that the Student’s “executive functioning deficits . . . impact his ability to interact with his peers and with his environment” and they “impact all his areas of development and significantly impact on his execution of any tasks.”[42] He also demonstrated “weaknesses in the areas of organization, task initiation, sustained attention, metacognition, goaldirected performance, time management, working memory, emotional control and flexibility.” [43] The OT evaluator “strongly recommended that [the Student] receive occupational therapy services” that focus on organizing personal items (in his locker, desk, notebook, and a binder), writing tasks out on paper, “accurately follow[ing] classroom procedures for turning in assignments,” “self-initiate[d] editing activities to correct spelling, punctuation, capitalization, and grammar on all typical classroom assignments” and “correctly identif[ying tasks that are] difficult for him” and “create[ing] a plan for accomplishing [each] task.”[44] The frequency was recommended “2 x 30 in a 1:1 ratio.” [45]
IEE PT Evaluation Case No. [573915]
The last independent evaluation for PT, was conducted on February 27, 2023.[46] After the DOE evaluation the previous year, the Student was involved in a bicycle accident that required two surgeries to his left leg; as a result, he had reduced range of motion in his left knee and his left ankle, as well as “mild low muscle tone, poor posture and some gait deviations.”[47] He was also two standard deviations below the mean for the Pediatric Reach test (measuring balance), the Timed Up & Go and Timed Floor-to-Stand tests (measuring the ability to rise and lower oneself quickly), the 30-Second Walk test (measuring walking speed and ability to stop short), and the Shuttle Run test (measuring the ability to run and pick up objects).[48] On these findings, the PT evaluator concluded that he Student’s PT deficits “could well affect his ability to safely navigate the school environment, and keep up with his peers in playground activities” and the evaluator therefore recommended “PT services . . . 2x30 minutes per week to strengthen and stretch his left leg, improve his balance and coordination, and help correct some of his gait deviations to achieve the above noted school-based outcomes.” [49]
The Parent
The only witness during the merits hearing was the Parent, who testified as follows. When the DOE decided not to classify the Student during the 2021-2022 school year, they had not properly assessed Student, as “the[ir] evaluations didn’t seem to make sense to me based on clinically what I was seeing.”[50] The Student should have been classified as a student with a disability.[51] The Student was “com[ing] home and say[ing or] describ[ing] himself as stupid and not knowing [or] not understanding the classroom material” and the DOE “evaluator[s were] . . . seeing a nice potential” in him “but its not what’s actually happening. It’s not what’s being reflected in his grades and school performance." [52]
The Student also showed other challenges, such as with “his executive functioning and keeping himself organized . . . when he had, for instance, a writing assignment . . . he was very . . Case No. [573915]
. anxious about getting it to school [but] then he forgot it on the table” and “that kind of happens a lot[,]” which is one of the “types of things [that] are getting in the way of him being a successful student.” [53]
On June 7, 2023, after the IEEs were submitted to the DOE, the CSE convened and issued an IESP that classified the Student as Other Health Impairment.[54] The Parent recalled attending that meeting and participating when the IEP was developed.[55] The IEP team “discussed all the . . . IEEs . . . and they looked through it and they saw what they felt were his deficits that were outlined by the therapists that had evaluated” the Student and they recommended OT and there was a conversation about adding counseling, however, the Parent was already having counseling provided for the Student. [56]
The Parent also recalled the DOE School Psychologist focusing on the Student’s executive functioning, and saying that if they “fine-tuned” his education with related services, this would “be able to address his academic deficits[,]” but the Parent “d[id]n’t see that as the right approach.[57] She thought that the Student needed special education the Parent specifically special education teacher support services (SETSS), which she believed would help the Student in the least restrictive environment (LRE).[58] She stated that this is what he needs in order to learn and understand foundational knowledge.[59] He did not receive it during the 2022-2023 school year “[a]nd now he is lost[.]”[60] She also felt that the IESP should include the recommendations described by CPNP. [61]
In her closing statement and the Parent Closing Brief, the Parent added the following. She is “grateful that the CSE met . . . and that there was some . . . validation” in the acknowledgment that the Student "does have some limitations” notwithstanding his “average Case No. [573915]
intelligence” but the “main issue is still unresolved[,] . . . his lack of academic success.”[62] She is “requesting SETSS to be added to [the] IESP” because in its current state, the IESP “fails to address the full scope of [the Student’s] educational needs.”[63] Children should be supported in their younger years and she is “hop[ing] that [the Student wi]ll be independent as a student in high school and beyond.” [64]
DOE Position
In addition to the exhibits offered at the hearing, the DOE made the following arguments, at the hearing and in the Department Closing Brief. The “IESP cannot be addressed by the IHO” because the Parent’s “complaints [about the IESP] were not made in the initial or amended DPCs[.]”[65] The law requires that issues cannot be raised by the party seeking relief that were not described in the DPC.[66] Moreover, “IHOs should not award prospective placements . . . on future IEPs . . . and . . . order[] specific content of a future IE[S]P a[t a] nonpublic school [(NPS)] placement” as it would “circumvent[] the statutory process . . . wh[erein] the CSE is tasked with reviewing information about the student’s progress . . . and periodically assessing the student’s needs.” [67]
In an appeal from a New York State Findings of Fact and Decision (FOFD), the State Review Office (SRO) found that “[r]elief in the form of IEP amendments and prospective placement . . . is not appropriate” and instead, “the directives of the [the] IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement[.]” [68]
Moreover, “the District . . . stand[s] by the IESP” as the evidence “demonstrates that the IEP team did consider the information available to them[,] . . . which included the IEEs” and “after reviewing those documents they made th[e IESP’s] recommendation as being the Case No. [573915] appropriate recommendation for this student.”[69] The Parent, therefore, “failed to [prove] that SETSS is appropriate for the Student.”
Legal Framework
The IDEA requires school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[70] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive IEP.[71] It requires the DOE to both comply with the procedural requirements set forth in the IDEA and recommend a placement and program that are reasonably calculated to enable the student to receive educational benefits. [72]
If a procedural violation is alleged, courts and IHOs may find that a student did not receive a FAPE 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. [73]
In general, however, the decision should be determined on substantive FAPE grounds, [74] that is, whether the school district “provid[ed] personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[75] Such an opportunity for educational benefit is demonstrated when the program of services developed by a school district is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[76] This means that the program must be one “that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[77] It must be “reasonably calculated to provide some ‘meaningful’ Case No. [573915] benefit.”[78] As applied to an IEP, the “appropriateness” of a FAPE is dependent on: (1) whether the IEP accurately reflects the results of evaluations considered in identifying the Student's needs [79]; (2) whether it provides for the utilization of sufficient special education services [80]; and (3) whether it is properly implemented.[81] The Department is not required, however, to show that it attempted to “maximize” the potential of a student with disabilities. [82]
A FAPE must be offered to every student with a disability residing in the school district who requires special education services or programs, regardless of whether they are public or private school students.[83] The IDEA regulations do not, however, confer an individual entitlement to special education or related services upon students who are enrolled by their parents in a NPS.[84] Rather, parents of NPS students with disabilities may nonetheless seek educational "services" for their child with a disability under State law by filing a request in the district where the NPS is located.[85] Then, the district of location's CSE must review the request and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]."[86] This is “known as the dual enrollment” statute, which “requires the provision of special education programs ‘on an equitable basis’ as compared to students who attend nonpublic schools.” [87] Case No. [573915]
If a dispute arises between a parent and a school district over the provision of equitable services under an IESP, review may be obtained via an impartial due process hearing, the same type of hearing as called for by the IDEA.[88] Except for circumstances not presented in the instant case, school districts have the burden of proof in due process hearings.[89] In addition, and as with IDEA hearings, the only limitations on the scope of relief are that it must “be appropriate in light of the purpose of the Act,”[90] and that damage awards are not available.[91] An IHO “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” [92]
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[93] The compensation must be designed to “make up” for past denials of FAPE on an equitable basis and place the student in the position they would have been had the district complied with its obligations under the IDEA and the Education Law.[94] “[T]he inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”[95] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE or FAPE on an equitable basis. [96] The compensation can also be awarded by either a “quantitative” approach (provided equal to the period of the deprivation of a FAPE or equitable services) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the deprivation of a FAPE or equitable services). Case No. [573915]
In New York, when there is a lack of FAPE on an equitable basis, and compensation is the appropriate remedy, the burden lies with that district to “describ[e] its views, based on a factspecific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[97] In crafting a remedy, I must be mindful that “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.” [98]
Analysis
Scope of School Years
A preliminary issue before me is for which school years services are being requested, and whether I have authority to issue an award for each of those years. The Parent filed her initial DPC on June 10, 2022.[99] This would have been near the end of the 2021-2022 school year, given that a “school year” in New York State begins, as a matter of law, on July 1 of a calendar year, and ends on the following June 30.[100] The DPC alleges that the Student “was denied services after an extended wait for a CSE meeting” and that she “completely disagree[s] with the CSE’s decision to deny [her] son much-needed services.”[101] The DPC does not, however, list for which school year the Parent was applying for services, or state when the events it describes took place. Even if I could consider evidence to supplement a DPC that is missing details, at no point did the Parent offer the date of her request for the Student to be considered by the CSE, the date the CSE met, or date of its decision to not classify the Student. Without such information, I cannot consider whether the Student would have been entitled to services before June 10, 2022.
The Parent filed the ADPC on August 18, 2023, and after describing a neurological evaluation scheduled for September 28, 2022, the Parent requested that the DOE “appropriately Case No. [573915] and expediently address [the Student’s] academic delays” by “provid[ing him with] SETSS services in school to support his learning in a non-stigmatized and comprehensive fashion.” [102] The ADPC likewise does not list a specific school year for which services were sought but, given that the Parent is pro se, I read the DPC and ADPC to request services for the school years during which they were filed, the 2021-2022 and 2022-2023 school years. Finally, I agree with the Department that IHOs should generally not make awards for future services, especially for school years not at issue. Given my finding that the DPC covers the end of the 2021-2022 school year, and that the ADPC covers the 2022-2023 school year, this decision will address whether the Student was provided with a FAPE on an equitable basis for that time period, and if not, what remedy or remedies may be available.
FAPE on an Equitable Basis
As noted previously, the DOE must comply with the procedural requirements set forth in the IDEA and the NY Education Law.[103] One is the “duty to identify, locate, and evaluate children who have a disability or who are suspected to have a disability.”[104] Thereafter, a student who has been so evaluated will have been denied a FAPE on an equitable basis if the District fails offer services once it is established that the student “ha[s] a qualifying disability and . . . need[s] special education and related services.” [105]
Here, the CSE evaluated the Student in the Spring of 2022, and although he showed some average scores in certain categories during the May 6, 2022 psychoeducational evaluation, he also exhibited some concerning variable results in language, math, and writing categories, including verbal comprehension in the 45th percentile, math problem solving and numerical operations in the 45th percentile, vocabulary in the 25th percentile, and sentence composition in the 16th percentile.[106] He was then diagnosed with ADHD some time before December 6, 2022.[107] The CPNP who communicated that diagnoses noted that the Student should have Case No. [573915] further psychoeducational evaluation, as well as additional considerations “in the classroom,” including: “more support, guidance, positive reinforcement and feedback”; “a high teacher-to-student ratio”; “placement in an inclusion/collaborative teaching classroom”; providing “[t]esting accommodations and modifications if needed” but, “at a minimum . . . extended time for testing, and the opportunity to take or finish tests in a quiet, separate location”; “[r]efocusing, redirection, check[ing] for understanding, reteaching as necessary, [and] support for organizational skills”; “frequent breaks as needed”; and “a fidget [device] in class [to] help decrease anxiety[.]” [108]
There is no indication that the DOE would have offered any evaluations, as recommended by the CPNP, but-for the Parent filing the instant complaint. Importantly, the increase in the Student’s poor performance metrics found by the independent evaluators demonstrates how the Student’s challenges worsened during the 2022-2023 school year, which began without an IESP in place. The Neuropsychologist, who completed the Student’s assessment on March 16, 2023, found the Student’s overall Written Language score fell within the 27th percentile and his overall Math score was in the 23rd percentile; in addition, the Student’s written expression was in the 39th percentile, reading comprehension was in the 30th percentile, spelling was in the 23rd percentile, object was naming in the 7th percentile, math fluency was in the 34th percentile, and math computation was in the 16th percentile.[109] He also exhibited delays and errors during executive functioning testing,[110] and was further found to have socio-emotional issues. It was noted that he had “sensitivity . . . internally” and that “he will get upset by things” and giving an example where after he “was awarded Student of the Week for demonstrating resiliency in class[,]” he “believed he did not deserve the award and tore it up.”[111] The Student was found to “be particularly sensitive to loss and rejection, which leads him to increase his dependence on others . . . even when he does not require it” and he “struggle[s] to see his external environment in accurate ways, thereby undermining effective understanding of himself or others in a particular environment.”[112] He also has “significant Case No. [573915] anxiety around being liked, cared for, pleasing to others and adequate[,]” which are “preoccupations [that] can lead [him] to struggle at times in school, especially when learning new skills, and become over reliant on help from other adults, like teachers.”[113] Upon these determinations, the Neuropsychologist recommended special education and psychotherapy. [114]
The Student’s “executive functioning deficits” were echoed by the OT independent evaluator, who concluded after an evaluation on April 10, 2023,[115] that they “impact his ability to interact with his peers and with his environment” and “impact all his areas of development and significantly impact on his execution of any tasks.”[116] The Student also demonstrated “weaknesses in the areas of organization, task initiation, sustained attention, metacognition, goaldirected performance, time management, working memory, emotional control and flexibility.” [117] On these findings, the OT “strongly recommended that [the Student] receive occupational therapy services” at 2x30 minutes per week that focus on organizing personal items (in his locker, desk, notebook, and a binder), writing tasks out on paper, “accurately follow classroom procedures for turning in assignments,” “self-initiate editing activities to correct spelling, punctuation, capitalization, and grammar on all typical classroom assignments” and “correctly identif[y tasks that are] difficult for him” and “create a plan for accomplishing [each] task.” [118]
In addition, the independent SLT evaluator noted an increase in the Students speech-language deficits during an evaluation conducted on March 6, 2023.[119] It was “hard for him to follow multiple-step directions and complex verbal commands” and he “often requires repetition, rephrasing and having spoken information broken down for understanding.”[120] In his metalinguistic language skills, the Student scored in the 47th percentile for inferential language, in the 39th percentile for non-literal language, in the 12th percentile for the Meaning from Context test, and in only the 2nd percentile for Idiomatic Language.[121] Of particular concern Case No. [573915] was his Word Retrieval/Rapid Naming test, where he “had 13 errors,” which “well exceed[s] the criterion of allowable errors (4).”[122] To the evaluator, this “indicated [a] problem [that] may have a negative impact on his overall fluency and accentuate his narrative language difficulties.”[123] Given these findings, the SLT was of the opinion that the Student should have “Speech-language therapy services” twice per week and “classroom accommodations[.]” [124]
Finally, the independent PT evaluation, performed on February 27, 2023,[125] revealed that the Student had marked limitations using his left leg and with his balance, which the PT evaluator found “could well affect his ability to safely navigate the school environment, and keep up with his peers in playground activities.”[126] I am mindful, however, that these limitations developed as the result of a bicycle accident that occurred after the 2022 DOE PT evaluation. [127] The evaluator recommended “PT services . . . 2x30 minutes per week to strengthen and stretch his left leg, improve his balance and coordination, and help correct some of his gait deviations to achieve the above noted school-based outcomes.” [128]
It is clear from the above evidence that the CSE should have viewed the Student’s variable psychoeducational scores in the Spring of 2022 as a more serious indicator of deficits. The CPNP confirmed that the Student was disabled in 2022, and his challenges worsened over the course of the 2022-2023 school year. The independent neuropsychologist was of the opinion that the Student should have had special education and counseling during the 2022-2023 school year, and the OT, SLT, and PT evaluators concluded that the Student required services in their respective fields. This evidence was uncontroverted, as the Department offered no witnesses and its evidence was concentrated on evaluations conducted during the 2021-2022 school year. I therefore hold that the decision to not classify the Student and offer him an IESP during the 2021-2022 school year, with special education recommended immediately and special education and related services recommended for the 2022-2023 school year, was a prima facie denial of a Case No. [573915]
FAPE, as “[s]ubstantive violations of [the] IDEA include the failure to propose an IE[S]P[.]” [129] The DOE failed to demonstrate, on this record and by a preponderance of the credible evidence, that the Student did not require special education during the end of the 2021-2022 school year and during the entirety of the 2022-2023 school year, or related services during the 2022-2023 school year. The award for the 2021-2022 school year, therefore, will include only the Student’s need for special education from May 6, 2022, the date the Student’s deficits were confirmed during the psychoeducational evaluation, to June 27, 2022, the official end of the ten-month school year, which I calculate to be 6.6 weeks. [130]
The IESP has no effect on the two school years for which I am awarding a remedy. The projected start date of the IESP was September 5, 2023, which was the beginning of the 2023-2024 school year.[131] Thus, DOE offered the Student nothing for the 2021-2022 or 2022-2023 school years. I note also that the IESP provides no special education, focusing instead only on OT and PT. [132]
Compensatory Education and Services
I agree with the SRO opinion, cited by the DOE Attorney, that held, in a case such as this, “[t]he more appropriate course is to limit review . . . to remediation of past harms that have been explored through the development of the underlying hearing record[.]”[133] Now that I have concluded there was a denial of a FAPE, I must determine what type and amount of award is warranted and, as I agree this decision should only cover past harms, I will apply the compensatory education and services analysis. I note that in designing such an award, my decision cannot be made in a vacuum; there must be sufficient “evidence necessary to determine Case No. [573915] the student’s specific educational deficits resulting from [the] loss of [a] FAPE and the specific compensatory measures needed to best correct those deficits.”[134] Here, I find that the evaluations provide such evidence.
Compensatory Special Education
In determining an award of compensatory education, “the inquiry must be fact-specific, and [in order] to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.”[135] I find that the qualitative approach would be most appropriate for special education, as neither the psychoeducational evaluator nor the Neuropsychologist suggested a specific amount of weekly hours for the Student. That said, I will not deny the Student much-needed services for this reason alone, so I am left to qualify what would be sufficient for the Student.
As a requested relief, the Parent has asked that the Student be provided SETSS. Not only did the Department fail to establish that the Student did not require any special education, it did not “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.”[136] The Department, therefore, did not demonstrate that SETSS was not an appropriate option. Furthermore, SETSS and services from a special education itinerant teacher (SEIT) are the primary methods by which NPS students are provided special education, but SEIT services are generally reserved “for the purpose of providing specialized individual or group instruction and/or indirect services to preschool children with disabilities.”[137] Given that the Student was in 4th grade during the 2021-2022 school year, and is now in 6th grade, I find that SETSS is the appropriate form of special education due the Student as compensation. Case No. [573915]
As for the amount of hours the Department must provide for the Student, I will apply what I consider to be the mean, as there is no evidence in the record of the Student requiring minimal or maximum services. Students are routinely offered as little as three hours of special education services per week, and as much as 15 hours, with 10 hours being a common recommendation. 138 The average of this high and low, however, is nine (9) so that is what I will impose. There is also no evidence that the Student was ever considered a 12-month student, or that he showed signs of substantial regression during the summer months. I therefore will order that the Student receive a compensatory award of SETSS, as follows: 9 hours per week for the final 6.6 weeks of the 2021-2022 school year (which I will round up to 59.5 hours), plus 9 hours per week for the 36-week 2022-2023 school year (324 hours),[139] for a total of 383.5 hours.
Compensatory Related Services
The Neuropsychologist also recommended psychotherapy, which I find can be addressed with counseling, which is routinely offered as a 1x30 minutes per week service in IEPs and IESP,[140] and I see no reason to apply a different amount based on the facts of this case. Therefore, compensatory counseling shall be awarded as 30 minutes per week for the 36-week 2022-2023 school year, for a total of 18 hours.
With respect to the related services of OT, PT, and SLT, I will take the quantitative approach, as the loss for each can be calculated as one-for-one periods from the evaluators’ recommendations. The OT evaluator also recommended “2 x 30 in a 1:1 ratio” [141]; thus, I will award 36 hours of compensatory OT services for the 2022-2023 school year. SLT was recommended as “2 x week, 1 x 1:1 and 1 x 3:1[.]”[142] As with the other services, describing a session as once (“1x”) or twice (“2x”) per week is almost always a reference to 30 minutes, multiplied by the number of sessions. I will apply that amount here and, to the extent the SLT
See, e.g., Application of a Student with a Disability, Appeal No. 23-190 (Oct. 27, 2023) (discussing whether 10 or 15 hours of SEIT services were appropriate). Case No. [573915] provider the Parent finds can offer services once per week in a group of three (3:1), that provider should; however, I recognize that it is difficult for smaller agencies and independent contractors to coordinate groups of the students with whom they work, so I will describe the service in my order as 36 hours (2x30 minutes per week, for 36 weeks) of compensatory SLT for the 2022-2023 school year. As for PT, I find that the service should begin as of November 15, 2022 (the 10th week of the school year), because that is the date certain (the day after his second femur surgery) he required therapy.[143] The IEE PT evaluator recommended “2x30 minutes per week to strengthen and stretch his left leg, improve his balance and coordination, and help correct some of his gait deviations to achieve . . . school-based outcomes.” I therefore will award 27 hours of PT (2x30 minutes per week, for 36 weeks less the first 9 weeks of the school year).
Finally, and to the extent the SLT evaluator recommended a comprehensive auditory processing evaluation, and if not yet performed since the IEE SLT evaluation, I will order the DOE to provide one itself or fund such an evaluation by the Parent’s chosen evaluator. Thereafter, the CSE must reconvene to reconsider the Student’s program in the June 7, 2023, IESP, in light of my findings in this decision and upon the recommendations of any auditory processing evaluator.
ORDER
Upon the foregoing, it is hereby, as compensation for the 2021-2022 and 2022-2023 school years, Ordered, that the DOE shall either reimburse Parent, or alternatively fund, at a reasonable rate consistent with rates the DOE has paid to similarly qualified providers in the six months before the date of this decision, and to the extent not already provided by or funded by the DOE during the 2021-2022 or 2022-2023 school years, the provision of SETSS, by a duly-licensed special education teacher, up to 383.5 hours, to be used within two years of the date of this decision; and it is, further, Case No. [573915]
Ordered, that the DOE shall either reimburse Parent, or alternatively fund, at reasonable rate, consistent with rates the DOE has paid to similarly qualified providers in the six months before the date of this decision, and to the extent not already provided by or funded by the DOE for the 2022-2023 school year, the provision of counseling, by a duly-licensed and/or accredited counselor, up to 18 hours, to be used within two years of the date of this decision; and it is, further, Ordered, that the DOE shall either reimburse Parent, or alternatively fund, at reasonable rate, consistent with rates the DOE has paid to similarly qualified providers in the six months before the date of this decision, and to the extent not already provided by or funded by the DOE for the 2022-2023 school year, the provision of Speech-Language Therapy, by a duly-licensed and/or accredited speech-language therapist, up to 36 hours, to be used within two years of the date of this decision; and it is, further, Ordered, that the DOE shall either reimburse Parent, or alternatively fund, at reasonable rate consistent with rates the DOE has paid to similarly qualified providers in the six months before the date of this decision, and to the extent not already provided by or funded by the DOE for the 2022-2023 school year, the provision of Occupational Therapy, by a duly-licensed and/or accredited occupational therapist, up to 36 hours, to be used within two years of the date of this decision; and it is, further, Ordered, that the DOE shall either reimburse Parent, or alternatively fund, at reasonable rate consistent with rates the DOE has paid to similarly qualified providers in the six months before the date of this decision, and to the extent not already provided by or funded by the DOE for the 2022-2023 school year, the provision of Physical Therapy, by a duly-licensed and/or accredited physical therapist, up to 27 hours, to be used within two years of the date of this decision; and, It is further, upon the foregoing, hereby, Ordered, that the CSE shall, within 35 days of the date of this order, provide, fund, or authorize a comprehensive auditory processing evaluation for the Student; and, it is, further, Ordered, that within 35 days of receiving the auditory processing evaluation report, but in any event no later than February 1, 2024, the CSE shall reconvene to consider the following: Case No. [573915]
a. Whether the recommendations of the auditory processing evaluation should be implemented for the 2023-2024 school year, with the IESP modified accordingly;
b. Whether, consistent with my findings in this decision, SETSS, SLT and counseling should be implemented for the 2023-2024 school year, with the IESP modified accordingly;
c. Whether, consistent with the independent OT evaluator’s recommendations, OT should be offered exclusively as a 1:1 service for the 2023-2024 school year, with the IESP modified accordingly; and, it is, further, Ordered, that the CSE shall, within 35 days of reconvening as described above, provide the Parent with a prior written notice on the form prescribed by the Commissioner, specifically indicating whether the CSE is recommending or refusing to recommend any of the above services to be considered at the reconvene meeting, and whether the IESP will be so modified, explaining the basis for the CSE's recommendation therein as well as the evaluative information relied upon in reaching these determinations. The Parent shall retain all rights to file a separate Due Process Complaint for the 2023-2024 school year.
So Ordered.
Signed: Dated: November 18, 2023
Richard J. Zeitler, Jr. (signed electronically)
Impartial Hearing Officer
Case No. [573915]
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. Case No. [573915]
DISTRICT EVIDENCE
1. DOE Occupational Therapy Evaluation 01/28/2022 7 pages DOE
2. NYC DOHMH Health Examination Form 12/15/2022 1 page DOE
3. NYS School Health Examination form 01/31/2022 2 pages DOE
4. DOE Elementary School OT Observation Form 01/28/2022 2 pages DOE
5. DOE Classroom Observation 01/18/2022 2 pages DOE
6. DOE Initial Social History 01/14/2022 5 pages DOE
7. Function and Participation Teacher Report (Elementary OT) (undated) (4th Grade) 3 pages DOE
8. DOE Psychoeducational Evaluation Report 05/06/2022 6 pages DOE
9. DOE Physical Therapy Evaluation 02/09/2022 11 pages DOE
10. DOE Speech-Language Evaluation 03/28/2022 9 pages DOE
PARENT EVIDENCE
A. [REDACTED] Correspondence and Sleep Study 12/6/2022 and 11/23/2022 9 pages
B. Neuropsychological IEE 03/16/2023 15 pages
C. Occupational Therapy IEE 04/10/2023 6 pages
D. Physical Therapy IEE 02/27/2023 4 pages
E. Speech and Language IEE 03/06/2023 11 pages
F. [REDACTED] Correspondence Case No. [573915] 06/13/2023 1 page
IHO EVIDENCE
I. Parent’s Due Process Complaint 06/10/2022 1 page IHO
II. Parent’s Amended Due Process Complaint 08/18/2022 2 pages IHO
III. Pre-Hearing Conference Summary and Order 07/28/2023 3 pages IHO
IV. Statement of Agreement and Order 02/09/2023 1 page IHO
V. Order of Extension 08/17/2022 1 page IHO
VI. Order of Extension 2 12/05/2022 1 page IHO
VII. Order of Extension 3 12/09/2022 1 page IHO
VIII. Order of Extension 4 01/31/2023 1 page IHO
IX. Order of Extension 5 02/09/2023 1 page IHO
X. Order of Extension 6 04/10/2023 1 page IHO
XI. Order of Extension 7 04/27/2023 1 page IHO
XII. Order of Extension 8 05/18/2023 1 page IHO
XIII. Order of Extension 9 05/18/2023 1 page IHO
XIV. Order of Extension 10 09/15/2023 1 page IHO
XV. Order of Extension 11 09/15/2023 1 page IHO
XVI. Order of Extension 12 09/18/2023 1 page IHO
XVII. Post Status Conference Scheduling Order 08/17/2022 2 pages IHO
XVIII. Corrected Post Status Conference Scheduling Order 08/17/2022 2 pages IHO
XIX. Scheduling Order 09/21/2022 2 pages IHO
XX. Scheduling Order 2 09/26/2022 3 pages IHO
XXI. Scheduling Order 3 12/05/2022 2 pages IHO
XXII. Scheduling Order 4 (v1) 12/09/2022 1 page IHO
XXIII. Scheduling Order 4 (v2) 12/15/2022 2 pages IHO
XXIV. Scheduling Order 5 01/31/2023 1 page IHO
XXV. Scheduling Order 6 02/09/2023 2 pages IHO
XXVI. Scheduling Order 7 04/10/2023 2 pages IHO
XXVII. Scheduling Order 8 04/27/2023 1 page IHO
XXVIII. Scheduling Order 9 05/18/2023 2 pages IHO
XXIX. Scheduling Order 10 08/29/2023 2 pages IHO
XXX. Department’s Closing Brief 09/27/2023 6 pages IHO
XXXI. Parent’s Closing Brief 10/04/2023 1 page IHO
XXXII. IESP Case No. [573915] 06/07/2023 13 pages IHO
Footnotes
[1] See IHO Ex. I.
[2] See IHO Ex. II.
[3] See 20 U.S.C. § 1415(f).
[4] See Educ. Law § 4404(1) et seq., and specifically, § 3602-c.
[5] See IHO Ex. II.
[6] See id.
[7] See IHO Exs. III and XVII through XXIX.
[8] See IHO Exs. V through XVI.
[9] See IHO Ex. IV. I note here that there was a discussion at the beginning of the case regarding the Student having orthopedic medical issues and sleep apnea. I was not, however, provided with any evidence that these medical
[10] The transcripts for these hearing dates will be denoted as “Tr.1,” “Tr.2,” and “Tr.3,” respectively.
[11] See Exs. 1 through 10, and Exs. A through F.
[12] See IHO Exs. I-1 and II-1; see also Tr.1 at pp. 16 and 25.
[13] Ex. 8-5.
[14] See id. at 8-4 to 8-5.
[15] See Ex. 10.
[16] Exs. 1-3 and 1-6.
[17] See Ex. 9-5.
[18] See Ex. B-2.
[19] See Exs. B through E.
[20] Ex. A-1.
[21] Id.
[22] See Ex. B-10 to B-11.
[23] Id. at B-6.
[24] Id. at B-3.
[25] Id. at B-2.
[26] Id. at B-7 to B-8.
[27] Id. at B-8.
[28] Id. B-8 to B-9.
[29] Ex. E-1.
[30] Id.
[31] Id.
[32] See id. at E-3 to E-7.
[33] See id. at E-11.
[34] Id. at E-8.
[35] Id. at E-9.
[36] Id. at E-9 to E-10.
[37] Id. at E-10.
[38] See Ex. C-2 to C-3.
[39] Id. at C-3.
[40] Id.
[41] Id. at C-3 to C-4.
[42] Id. at C-5
[43] Id.
[44] Id. at C-5 to C-6.
[45] Id. at C-5.
[46] See Ex. D-1.
[47] Id. at D-1 to D-3.
[48] Id. at D-2 to D-3.
[49] Id. at D-4.
[50] Tr.1 at pg. 18.
[51] See id. at pg. 19.
[52] Id. at pp. 22 to 23.
[53] Id. at pg. 37.
[54] See Tr.2 at pp. 5, 8, and 13.
[55] See Tr.3 at pp. 25 to 26.
[56] See Tr.2 at pg. 13, and Tr.3 at pg. 31.
[57] Id. at pp. 31 to 34.
[58] See Tr.2 at pp. 30 to 31; see also Tr.3 at pg. 19.
[59] See Tr.2 at pp. 32 to 33.
[60] Tr.3 at pg. 35.
[61] See Tr.2 at pp. 37 to 38.
[62] Tr.3 at pg. 57.
[63] IHO Ex. XXXI.
[64] Tr.3 at pp. 57 to 58.
[65] IHO Ex. XXX-2.
[66] See id. (citing 200 U.S.C. § 1415[f][3][B]; see also Dep’t of Educ., Hawai’i v. C.B., 2012 WL 220517, at *7-*8 [D. Haw., Jan. 24, 2012 (administrative hearing officer improperly considered an issue beyond the scop of the parents’ dur process complaint notice]).
[67] Tr.3 at pg. 46; see also IHO Ex. XXX-3.
[68] Id. at XXX-4 to XXX-5 (quoting Application of a Student with a Disability, Appeal No. 19-066 [Aug. 23, 2019], at pg. 29 [which itself cites to Adams v. Dist. of Columbia, 285 F.Supp.3d 381, 393 and 396-97 (D.D.C. 2018)]).
[69] Tr.3 at pp. 45 to 46
[70] See 20 U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a) and (b)(2).
[71] 34 C.F.R. § 300.13.
[72] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[73] 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).
[74] 20 U.S.C. § 1415(f)(3)(E)(i).
[75] Rowley, 458 U.S. at 203.
[76] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[77] Cerra v. Pawling Cent. Schl. Dist., 427 F.3d 186, 195 (2d Cir. 2005), quoting Walczak, 142 F.3d at 130.
[78] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see Rowley, 458 U.S. at 192.
[79] See 34 C.F.R. § 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008), establishes annual goals related to those needs (34 C.F.R. § 300.320[a][2]; 8 NYCRR 200.4[d][2][iii]).
[80] See 34 C.F.R. § 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02- 014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[81] See 8 NYCRR 200.4(e)(7); see also Application of a Child with a Disability, Appeal No. 08-087.
[82] Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998), at 132 (an “appropriate” education is “not one that provides everything that might be thought desirable by loving parents”).
[83] See 20 U.S.C. § 1412(a)(l)(A); Educ. Law§ 4402(2)(a), (b)(2).
[84] See 34 CFR 300.137(a).
[85] Educ. Law § 3602-c(2).
[86] Matter of Bd of Educ. of Bay Shore Union Free School Dist. v. Thomas K., 14 N.Y.3d 289 (2010) (citing Educ. Law § 3602-c[2][b][l]).
[87] See, e.g., Application of a Student with a Disability, Appeal No. 22-024.
[88] 20 U.S.C. §§ 1221e-3, 1415(e)-(f); see also Education Law § 4404(1); 34 CFR §§ 300.151- 300.152; 8 NYCRR §§ 200.5(h)-(l).
[89] See Education Law § 4404(1)(c); R.E. v. New York City Dept. of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); and T.K. and S.K. ex rel. L.K. v. New York City Dept. of Educ., 810 F.3d 869, 875 (2d Cir. 2016).
[90] Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted).
[91] See Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir.2002).
[92] See East Lyme Bd. of Educ., 790 F.3d at 454.
[93] See Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997].
[94] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[95] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[96] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[97] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[98] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[99] See IHO Ex. I.
[100] See Educ. Law § 1(15).
[101] IHO Ex. I.
[102] IHO Ex. II-1.
[103] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. at 206-07.
[104] A.P. ex rel. Powers v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 224 (D. Conn. 2008), aff’d, 370 App’x 202 (2d Cir. 2010) (citing 20 U.S.C. § 1412[a][3][A] and Handberry v. Thompson, 446 F.3d 335, 347 [2d Cir. 2006]).
[105] Alvin Indep. Sch. Dist. v. A.D., 503 F.3d 378, 382 (5th Cir. 2007) (internal quotation marks omitted) (citing 20 U.S.C. § 1401[3][A]).
[106] See Ex. 8-4 to 8-5.
[107] See Ex. A-1.
[108] Id.
[109] See Ex. B-10 to B-11.
[110] See id. at B-3 and B-6.
[111] Id. at B-2.
[112] Id. at B-7 to B-8
[113] Id. at B-8.
[114] See id. at B-8 to B-9.
[115] See Ex. C-1.
[116] Ex. C-5.
[117] Id.
[118] Id. at C-5 to C-6.
[119] See Ex. E-1.
[120] Id.
[121] See id. at E-3 to E-8, and E-11.
[122] Id. at E-8.
[123] Id.
[124] Id. at E-9 to E-10.
[125] See Ex. D-1.
[126] Id. at D-4.
[127] See id. at D-1 to D-3.
[128] Id.
[129] L.B. ex rel. E.B. v. New York City Dep’t of Educ., 122 LRP 8348 (U.S. Dist. Court, SDNY) (21-CV-1033 [VEC] 03/08/2022) (citing Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-9 [2009]).
[130] See NYC Department of Education School Year Calendar 2021-2022, found at <https://www.schools.nyc.gov/ docs/default-source/default-document-library/doe-calendar-sy-21-22> (last visited November 9, 2023). This was seven five-day school weeks plus two days, less four days off. See id. To the extent the start date could have considered a reasonable amount of time for the DOE to assess the psychoeducational evaluation, I will not accord them the benefit of such doubt when it is undisputed that the DOE decided to offer the Student nothing after that evaluation.
[131] See IHO Ex. XXXII-1.
[132] See id. at XXXII-10.
[133] See Application of a Student with a Disability, Appeal No. 19-066 (Aug. 23, 2019), at pg. 29 (citing Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug. 24, 2012]).
[134] Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) (internal quotation and citation omitted).
[135] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").
[136] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); East Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[137] 8 NYCRR § 200.16(i)(3)(ii).
[139] “A 10-month school year consists of 36 weeks (180 school days divided by 5 days per week)[.]” Application of a student with a Disability, Appeal No. 23-153 (Aug. 30. 2023), at pg. 25.
[140] See, e.g., Application of the Bd. of Educ. of the Katonah-Lewisboro Sch. Dist., Appeal No. 23-209 (Nov. 9, 2023); Application of a Student with a Disability, Appeal No. 23-190 (Oct. 27, 2023); and Application of a Student with a Disability, Appeal No. 23-170 (Oct. 23, 2023).
[141] Ex. C-5.
[142] Ex. E-10.
[143] Unlike, PT, I will begin the award of services for SLT and OT as of the beginning of the school year because, as already noted, the DOE failed to recognize the Student required services and, unlike the IEE PT evaluation, the IEE SLT and OT evaluators were confirming deficits the Student already had when they conducted their evaluations, meaning that those deficits had developed earlier. Given that I am not granting the DOE the benefit of the doubt when it failed to act on the evidence from the prior year, I find it equitable, under the circumstances of this case, to begin the calculation of compensatory SLT, OT, and counseling as of the beginning of the 2022-2023 school year.