New York City Department of Education, Impartial Hearing Decision

Case Number: 228171

INTRODUCTION

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education laws. The New York City Department of Education will be referred to as District or the DOE and the parents as Parents and the child will be referred to as Student.

PROCEDURAL HISTORY

This hearing was requested by a Due Process Complaint July 6, 2022 by Parent (Parent Ex. A). Parent claims a denial of FAPE for the 2022/23 school year and seeks, by this Due Process Hearing request, the provision of 25 hours per week of home-based SETSS. Student is medically unable to attend a public or private school.

The undersigned was appointed as Impartial Hearing Officer on July 13, 2022. Hearings were held on numerous dates. An Interim Order on Pendency was issued by the undersigned ordering the provision of Special Education Itinerant Teacher (SEIT) services, 15 hours per week, based on a last agreed-upon placement dated August 18, 2018, together with related services of speech language therapy, occupational therapy, physical therapy, and vision education services.

During the course of the proceedings, the parties moved to extend the case compliance date in this matter on the dates indicated in IHO exhibits, all in order to allow for an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

The hearing record was closed effective July 22, 2023.

Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

FACTUAL BACKGROUND

Student was, at the beginning of the 12-month 2022/23 school year, REDACTED year-old child known to the DOE as a Student with a disability and with a DOE classification of Multiple Disabilities (DOE Ex. 2). Student is diagnosed with REDACTED. According to the most recent IESP created for Student dated September 28, 2022 (DOE Ex. 2), Student is essentially non-verbal, is unable to follow two-step directions independently, and presents with significant gross and fine motor skills. Additionally, Student is medically diagnosed with REDACTED. Her IESP indicated that she is medically fragile and unable to attend a school in person, due to her REDACTED (DOE Ex. 2).

Nevertheless, the DOE recommended, as per the September 28, 2022, IESP, the provision of Special Education Teacher Support Services (SETSS), 12 periods per week, as a supplement to a full-time educational placement, together with related services of speech language therapy, 4x30x1, occupational therapy, 4x30x1, physical therapy, 4x30x1, and vision education services, 4x30x1.

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“FAPE”) that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982) 1.

1. The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge;

(B) meet the standards of the State educational agency;

(C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and

(D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

The IDEA requires a school district to have an Individualized Educational Plan (IEP) in effect for each child with a disability at the beginning of each school year. See 20 U.S.C. § 1414(d)(2)(A); 34 C.F.R. § 300.323(a); see 71 Fed. Reg. 46682 [stating that the IDEA "is clear that at the beginning of each school year, each [district] must have an IEP in effect for each child with a disability in the agency's jurisdiction. Further, An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 [S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).

An IEP has to be based upon appropriate evaluations. 34 C.F.R. §300.324(a)(iii). See also 34 C.F.R. §§300.303-300.311, 300.315; 8 N.Y.C.R.R. § 200.4(f). All reevaluations shall be conducted by a multidisciplinary team, including a specialist in the area of the student’s disability. 8 N.Y.C.R.R. § 200.4(b)(4). Children must be assessed “in all areas of suspected disability” using “a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information.” 20 U.S.C. §1414(d); 34 C.F.R. § 10.

Additionally, 8 N.Y.C.R.R. § 200.4(b)(6) provides that every reevaluation must identify “all of the special education and related services needs, whether or not commonly linked to the child’s classification.” 34 C.F.R. § 303(c)(6).

Parents should be central members of IEP teams. See 20 U.S.C. §§ 1414(a)(1)(A), 1414(c), 1414(d)(1)(B)(i); 34 C.F.R. §§300.15; 300.303. Further, regulations provide that the parent must have an adequate opportunity to participate in the development of the child’s IEP Cerra v. Pawling Cent. School District, 427 F.3d 186, 192 (2d Cir. 2005, requiring that the Parent be properly notified of the IEP meeting and that such meeting be scheduled at a “mutually agreed upon time and place.” 34 C.F.R. § 300.322.

An IEP must include a statement of measurable annual goals, including academic and functional goals designed to meet the student's needs that result from the student's disability to enable the student to be involved in and make progress in the general education curriculum; and meet each of the student's other educational needs that result from the student's disability (see 20 U.S.C. § 1414[d][1][A][i][II]; 34 C.F.R. § 300.320[a][2][i]; 8 NYCRR 200.4[d][2][iii]). Each annual goal shall include the evaluative criteria, evaluation procedures and schedules to be used to measure progress toward meeting the annual goal during the period beginning with placement and ending with the next scheduled review by the committee (8 NYCRR 200.4[d][2][iii][b]; see 20 U.S.C. § 1414[d][1][A][i][III]; 34 C.F.R. § 300.320[a][3])

A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132).

However, in the recent decision of the United States Supreme Court, Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), argued January 11, 2017, and decided March 22, 2017, the Court held that, while Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act”, 458 U. S., at 202, it nevertheless still held that “a substantive standard was “implicit in the Act”. Rowley , 458

U. S., at 193, n. 15. It similarly held that “the statement that the Act did not “guarantee any particular level of education” simply reflects the unobjectionable proposition that the IDEA cannot and does not promise “any particular [educational] outcome.” Id.at 192. Rather, the Court in Endrew held that, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances (emphasis added), as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA”. . In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth”. §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all”. The Court in Endrew further stated that “The IDEA demands more. It requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”. And although the Supreme Court declined to elaborate on the definition of “appropriate progress” from case to case, it stated that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created”. Finally, The Supreme Court in Endrew declined to hold, as it declined to hold in Rowley, that “every handicapped child who is advancing from grade to grade . . . is automatically receiving a [FAPE].” Board of Ed. of Hendrick Hudson Central School Dist., Westchester Cty v. Rowley, 458 U. S. 176, 203, n. 25 (1982).

Section 504 provides that “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal assistance.” 29 U.S.C. §794(a). Section 504 and the IDEA are often seen as “complementary” statutes that, to a degree, mandate parallel requirements on schools to provide special education and related services. See R.B. ex rel. L.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000) (citations omitted). The Section 504 regulations clarify the nature of the prohibited discrimination. 34 C.F.R. § 104.4(b)(ii)-(iii). In addition, the Section 504 regulations place similar and even parallel requirements on schools to provide a FAPE. See 34 C.F.R. §§ 104.33-104.37.

The burden of proof to establish that a FAPE has been offered to the Student is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if :

1. the services offered by the board of education were inadequate or inappropriate;

2. the services selected by the parents were appropriate; and

3. equitable considerations support the parents' claim. (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

CHILD FIND

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446. F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F.Supp.2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202, 2010 WL 1049297 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 C.F.R. § 300.111; 8 NYCRR 200.2[a][7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004])). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][7]).

A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To determine that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate the student (A.P., 572 F.Supp.2d at 225, citing Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F.Supp.2d 815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's RtI program (8 NYCRR 200.4[a]; see also 8 NYCRR 100.2[ii]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. District of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [ finding that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz, 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ. v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have overlooked clear signs of disability and been negligent by failing to order testing, or have no rational justification for deciding not to evaluate (A.P., 572 F. Supp. 2d at 225, quoting Bd. of Educ. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent over-identification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D.Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, the school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]). See also R.M.M. v. Minneapolis Pub. Sch., Case No. 15-cv-1627 (SRN/HB),

13 (D. Minn. 2017), which held that a school district’s consultations with private schools that were general in nature, and “not focused on individual students”, failed to satisfy the affirmative duty imposed by the IDEA on school districts to seek out, identify, and evaluate children in need of disability services.” See also P.P. ex rel. Michael P. v. West Chester Area School District, 585 F.3d 727, 731 (3d Cir. 2009), holding in a case where a finding was made for the school district against a parental Child Find claim, numerous affirmative steps that the school district took to comply with its Child Find obligations, describing them as “comprehensive”, satisfied the Child Find requirements, including posting child find notices in the local paper, sending residents the information in their tax bills, and placing targeted posters and pamphlets in the private schools, none of which were undertaken by the DOE in this case NY STATE CHILD FIND:

State regulations specify procedures for identifying students with learning disabilities, providing, among other things, that: A student may be determined to have a learning disability if, when provided with learning experiences and instruction appropriate for the student's age or State-approved grade-level standards, the student does not achieve adequately for the student's age or to meet State-approved grade-level standards in one or more of the following areas: oral expression, listening comprehension, written expression, basic reading skills, reading fluency skills, reading comprehension, mathematics calculation, mathematics problem solving; and . . . the student exhibits a pattern of strengths and weaknesses in performance, achievement, or both, relative to age, State-approved grade-level standards, or intellectual development that is determined by the CSE to be relevant to the identification of a learning disability. . . .(8 NYCRR 200.4[j] [3], [3] [i] [b] [emphasis added]).

ANALYSIS

The DOE presented the testimony of one witness, the school psychologist who oversaw the IESP meeting dated September 28, 2022. The witness described Student as globally developmentally delayed with an intellectual disability due to her medical diagnoses, including REDACTED , and that she is nonverbal, struggles with communication and using language, and has difficulty following directions and focusing, with learning coming to her in a very difficult way (Tr. p. 131-132). The witness further agreed that having Student attend a school was not a viable option due to her medical condition (Tr. p. 136). She described home instruction, an option for children who are unable to attend school in person, as an instructional program provided through the Department of Education, typically given to students who have a medical condition that doesn't allow them to attend school in person, with a certified home instruction special education teacher sent to the child’s home (Tr. p. 136).

On questioning from the Impartial Hearing Officer, the witness testified that the DOE was under the impression that Student would be home-schooled, and that the IESP recommendations were designed to supplement such home-schooling program, but admitted to some confusion existing as to exactly what program Parent was seeking (Tr. p. 138). When the witness was asked to review DOE Ex. 9, which included emails between Parent and CSE 7, and which advised Parent to contact the CSE if Parent wished to pursue home-schooling, and whether that indicated to the witness that home-schooling was not, in fact, in place at such time, the witness acknowledged that such email did in fact indicate that home-schooling was not in place during the 2022/23 school year, and that the CSE nevertheless took no action to reconvene to put in place, without confusion, a different placement for Student (Tr. p. 140-141). The witness also testified that in order for a child to be home-schooled, the Parent is required to submit a Home Instruction Plan that she intends to utilize directly to the Office of Home Schooling, and that the witness was unaware of the receipt of such required Plan (Tr. p. 143). It is noted that the hearing record did not evidence any such Home Instruction Plan having been received by the DOE from Parent.

On cross examination, the witness once again reiterated her belief that the provision of 12 periods of SETSS was an appropriate placement to supplement a home-schooling program (Tr. p. 145-146).

Referring to DOE Ex. 10, which includes a chain of emails between this witness and the individual from Home Instruction Schools Guidance, dated June 22, 2022, such individual indicates that, for the period of the 2018/19 school year through the 2021/22 school year, no documentation was received from Parent regarding home-instruction. Nothing in the chain of emails pertained to or shed light upon Student’s possible home-instruction program for the 2022/23 school year.

Also testifying was Parent, who described Student as a medically fragile child with REDACTED , with a REDACTED (Tr p. 173-174). She further described her as enjoying learning and doing so successfully with one-on-one instruction, and that she is able to handle additional hours of instruction, as learning is very important to her (Tr. p. 171-173). Parent also stated that Student is not able to read, but loves when her teacher reads to her, and that Student would definitely be able to handle additional hours of instruction because she loves to learn and that it “gives her life”, and that she has been progressing academically with the instruction she has thus far received (Tr. p. 175-176). Parent also testified that Student cannot attend a school in person due to her medical condition and also due to the fact that she has been unable to even locate a school that would accept Student with her required 24-hour nurse, even if Student could safely attend (Tr p. 176).

On cross examination, Parent stated that the options of home-schooling and homeinstruction were discussed with her, but that neither option was clear to her understanding, and that she never really understood the concept of either home schooling or home instruction. Parent further stated that she just tried to follow “where they told me to do, but I really did not understand it” adding that, at one point, the DOE was to send a teacher to the home for Student but, due to COVID, nobody was able to come (Tr. p. 178-179).

In examining the educational program created for Student for the 2022/23 school year, it is uncontested that the recommended provision of SETSS, 12 hours per week, as contained in the September 28, 2022 IESP, was designed to supplement a home-schooling program. However, as noted above, the DOE witness could not confirm receipt of the required Home Schooling Instruction Plan, and the hearing record is devoid of any such document, a necessary prerequisite for a home-schooling program to be in place. Parent’s testimony confirms that she did not understand the difference between home schooling and home instruction, believing she was simply agreeing to a plan that would send a teacher to the home. And the DOE witness acknowledged that Parent never submitted a home-schooling plan, nor was any such plan in the hearing record, and the hearing record fails to establish any proposed plan for a home-instruction placement. Therefore, the hearing record fails to establish that neither the DOE relied-upon home-schooling plan nor a home instruction plan was ever in place. Without either such program in place, there is nothing for the recommended SETSS to supplement, and it was therefore inappropriate to assume a home-schooling program in place, as the DOE did in crafting Student’s IEP, simply because the DOE had not received an application for home-instruction. As noted above, The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 C.F.R. § 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004])). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 C.F.R. § 300.111[c][1]; see 8 NYCRR 200.2[a][7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249 [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. 2011]). In the instant case, it was improper to develop an IESP based upon a homeschooling program that did not exist, and it was further incumbent upon the DOE, and it had an affirmative duty, to reconvene to develop an otherwise appropriate plan for Student, either a home instruction plan or a home-based educational plan consisting of SEIT/SETSS and services, as no home-schooling plan was ever submitted or approved, and the DOE was aware that Student could not attend a school in person. In creating only an IESP program of 12 periods of SETSS, ostensibly to supplement a fulltime home-schooling program that was never applied for, never processed, and never existed, the DOE essentially left Student with no educational program at all. Rather, in providing Student with only a program designed to supplement a full-time educational placement without ensuring that such full-time placement in fact existed for Student, it completely failed in its Child Find obligations, a clear denial of a FAPE.

In examining, then, the necessary equitable relief to address the DOE’s failure to ensure that an appropriate educational placement was provided for Student for the 2022/23 school year, testifying for Parent was the SEIT instructor who provided 15 hours per week of instruction to Student pursuant to the aforementioned Interim Order on Pendency. The witness described Student as a child that loves and is excited to learn, wanting to learn new things, despite her global disabilities and medical frailty. She stated that Student is proud of her learning accomplishments and claps for achievements. Due to her medical condition, her academic performance is inconsistent on a daily basis, depending on her medical condition on any given day, but that she remains committed to learning. She also stated that Student needs some type of sensory activities in order to learn, and loves music, which helps her cue in, but also needs frequent breaks due to excessive stimulation, where she receives redirection to calm her down (Tr. p. 189-191). The witness testified that she has worked with Student on a lot of goals, and explained in great detail what a typical instructional day looks like, including her generally starting with a book where Student remains focused and listening, after which time she will be asked to point things out in a story, or asked WH questions after the story. This is usually followed by some type of sorting activity, whether by color, size or shape. Her occupational therapy is addressed at times with puzzles, which also addresses her vision disabilities. Verbalization is also addressed, to try to get Student to say as many sounds as possible (Tr. p. 191-194).

When asked specifically about Student’s need for additional hours of instruction, and her ability to handle such additional hours, if appropriate, the witness testified that Student definitely does need more hours because she's getting older and, especially due to her medical condition, requires consistency, so that even after she masters a goal, it still needs to be reviewed. The witness stated that Student also requires continued instruction in expressive language as much as possible, due to her being mostly non-verbal, and that she has finally learned to verbalize her name, a huge accomplishment for her. She stated that Student continues to require learning about shapes, numbers and other things, and is excited to learn as much as possible, but the gaps between her abilities and her age are widening, so that Student requires as much additional instruction time as possible (Tr. p. 195-197).

The Executive Director of the agency providing the SEIT instruction to Student testified that the rate charged is $150.00 per hour and that the agency would be able to provide any additional compensatory hours to which Student might be awarded (Tr. p. 167).

As Student is not medically cleared to attend a school in person, and as Parent has neither sought nor shown herself able to provide home-schooling, and as a home-instruction program was never put in place, the appropriate educational placement for Student the 2022/23 school year is determined to have been a home-based program consisting of SEIT/SETSS and related services. As noted above, Parent never sought home-schooling, never submitted an application for homeschooling, and a home-schooling application was never received by the DOE. While it may be true that Parent never submitted a home-instruction application as well, The DOE cannot abdicate its responsibilities under Child Find by simply saying it was waiting for the Parent to decide; the DOE has the affirmative obligation to ensure that Student is appropriately placed for the 2022/23 school year. It was incumbent upon the DOE, and it was its legal obligation, to create for Student, in the absence of any other option, a home-based plan. This it failed to do, a clear denial of FAPE.

In the effort to determine what such home-based plan should entail, it is noted that, in originally recommending 12 periods of SETSS to supplement an otherwise full time program (that it erroneously believed, nevertheless, to be in place), the DOE is acknowledging that 12 periods of instruction, as a supplement, was to be in addition to other hours of instruction. The SEIT teacher testified that Student, in receipt of 15 hours of instruction per week, required more hours to learn, and that Student eagerly embraced learning, and when asked more specifically the amount of additional hours Student required to address her educational needs, she stated “I would love to see an extra at least hour a day so that we can, you know, we can get in a lot more attainable goals…that's what I would like to see” (Tr. p. 198).

Hearing Officers are imbued with the authority to grant the relief necessary, under the particular facts and circumstances of a case, to ensure that a child receive the free, appropriate public education to which he/she is entitled. Letter to Armstrong, 28 IDELR at 304. Accordingly, based on the educational needs of Student, and consistent with DOE guidelines for homeinstruction programs (See 8CRR-NY 100.10, Regulations of the Commissioner of Education, Home Instruction), which authorizes 5 hours of home instruction per day for students in grades 1-6, and under the equitable authority conferred upon Impartial Hearing Officers to craft an appropriate remedy for a denial of FAPE, it is determined that the appropriate educational placement for Student for the 2022/23 school year was a home-based plan consisting of SEIT/SETSS, 25 hours per week, plus related services, as more fully set forth below. Given the uncontested testimony of Student’s significant regression, such placement is appropriately a 12-month school year placement.

As Student received only 15 hours of instruction per week, Parent seeks a compensatory award for the difference of 10 hours of instruction per week for the entirety of the 12-month 2022/23 school year.

Compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and 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"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Under the facts and circumstances of this case, and given the particular medical disabilities of the child, who requires a home-based program, the quantitative approach is determined to be the more effective and equitable form of compensatory award. Compensatory relief is therefore computed at 10 hours per week x 46 weeks (12 month school year) = 460 hours.

To the DOE’s argument that compensatory relief should be denied because the instant case is “at its heart an IESP case” (Tr. p. 210-211) and that there cannot be an award of compensatory services in the absence of a denial of FAPE, where Parent was not seeking a public education, it is first noted that, as indicated above, the DOE, in failing to create an appropriate educational placement for Student under its Child Find obligations, did in fact deny Student a FAPE, a Student who is medically unable to attend any school, public or private, and from whose Parent the DOE never received a home-schooling or home-instruction plan, which triggered on the part of the DOE the legal obligation to create a home-based plan to address the needs of Student. Second, the DOE’s claim that this case is “at its heart an IESP case” is without merit, as the creation of an IESP for Student was never a proper educational plan in the first place. It was created with the assumption that it would supplement a home-schooling plan, an erroneous assumption that never should have been made without an underlying educational plan (the non-existent home schooling plan) in place for it to supplement. No such underlying educational plan was ever in place for Student. Finally, even if the argument is accepted that Student’s rights here are to be viewed through the lens of Education Law §3602-c, for a Student whose Parent opts to not send her to a public school (while noting nevertheless that this is a Student that was medically precluded from attending any school, public or private, and not merely a parental option), it is noted nevertheless that in determining what rights are afforded students with disabilities and their families under §3602-c, the Court of Appeals has stated that the “extensive New York statutory and regulatory scheme” must be followed and as such §3602-c must be read and interpreted to increase access to benefits to children in private school, not limit them or create a different basis for provision of services. See Bd. of Ed. of Bay Shore Union Free School District, 14 N.Y.3d at 293; Wieder, 72 N.Y.2d at 184-88.

For all of the above reasons, an award of compensatory relief is determined appropriate.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED:

1. The DOE has denied Student a FAPE for the 2022/23 school year.

2. The appropriate educational placement for Student for the 2022/23 school year is determined to be as follows:

a. Home-based SEIT/SETSS (individual) instruction, 25 hours per week, 12-month school year;

b. Speech/language therapy, 4x30x1;

c. Occupational therapy, 4x30x1;

d. Physical therapy, 4x30x1;

e. Vision Educational Services, 3x30x1;

f. Assistive Technology (AT) device.

3. The DOE shall provide and/or fund, as compensatory relief, 460 hours of individualized SEIT/SETSS, to be utilized over a period of 18 months from the date of this Order;

4. The DOE shall comply in all respects with this Decision and Order.

Dated: August 2, 2023

BRUCE S. OLINGER, ESQ.

Impartial Hearing Officer

APPEAL RIGHTS

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 the 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.

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. Impartial Hearing Request, dated 7/5/22 (7 pages)

B. Individualized Education Program, dated 8/18/18 (23 pages)

C. Progress report, dated 2/25/23 (9 pages)

D. Providers' credentials, various dates (2 pages)

DEPARTMENT OF EDUCATION

1. Due Process Complaint, dated 07/05/2022 (7 pages)

2. IESP, dated 09/28/2022 (20 pages)

3. IESP Meeting Attendance Sheet, dated 09/28/2022 (1 page)

4. IESP Meeting Notice, dated 04/26/2022 (4 pages)

5. IESP Meeting Notice, dated 05/18/2022 (4 pages)

6. IESP Meeting Notice 06/15/2022 (4 pages)

7. IESP Meeting Notice dated 09/15/2022 (4 pages)

8. SESIS Events Log, Undated (8 pages)

9. Email Chain – CSE & [redacted], dated 03/06/2023-03/07/2023 (2 pages)

10. Email Chain –Home Instruction, dated 06/17/2022 (3 pages)

IMPARTIAL HEARING OFFICER

I. Order

of Non-Consolidation, dated 7/14/22 (5 pages)

II. Pendency Order, dated 7/20/22 (8 pages)

III. Orders Extending the Compliance Date, various dates (11 pages)