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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 576267

Impartial Hearing Decision

January 31, 2023·Jeffrey J. Schiro·[redacted] Ufsd

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

FINDINGS OF FACT & DECISION

IHRS Case Number: 576267

Student Name: [REDACTED] (hereinafter referred to as Student)

Date of Birth: [REDACTED]

District: [REDACTED] UFSD

Hearing Requested By: Parent

Dates of Hearings: October 19, 2022

November 28, 2022

Actual Record Close Date: January 17, 2023

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 19, 2022

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 28, 2022

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], Parent

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the parent of the student in a due process complaint received by the [REDACTED] School District (the “District”) on July 20, 2022. The issue to be determined at this hearing is whether the District violated the terms of the parties’ 2019 Pendency Agreement by failing to provide the student with extended school year (“ESY”) services during the summer of 2022 (Ex. P-A).[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an IEP, which is delegated to a local CSE that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.

§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR

§ 200.5(k).

II. PROCEDURAL HISTORY

On July 20, 2022, the District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). My appointment was done off the rotational list established by the New York State Education Department (“NYSED”) given my appointment to other (then) on-going matters involving the same student with a disability (R. 4-5). See 8 NYCRR § 200.5(j)(3)(ii)(a)(1). On August 4, 2022, the District served the parent with a combined answer and motion to dismiss the complaint (Ex. SD-3). See 8 NYCRR §§ 200.5(i)(4)-(5). On August 6, 2022, the parent served the District with a response in opposition to the District’s motion to dismiss (Ex. P-B).

On August 24, 2022, a pre-hearing conference was held with the parties on this and other pending matters (R. 1). See 8 NYCRR § 200.5(j)(3)(xi). At the pre-hearing conference, the parties consented to my continued appointment in this matter (R. 5-6). As the parties wished to explore the possibility of settlement, a decision on the District’s motion was reserved (R. 20-24, 49-50).

A second pre-hearing conference with the parties was held on September 19, 2022 (R. 52). The parties advised me that the parent rejected the District’s offer of settlement (R. 56). A hearing date was then scheduled and a decision on the District’s motion to dismiss was reserved until completion of the hearing on the merits (R. 56-59).[2]

Hearings on the merits of this matter were thereafter held on October 19, 2022 and November 28, 2022 (R. 40, Nov. Tr. 1; Exs. IHO-I, IHO-V).[3] 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). [4]

III. FACTUAL BACKGROUND

At the time of the July 14, 2022 due process complaint, the student was [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Ex. P-A).[5] See 8 NYCRR § 200.1(zz)(7).

The student resides within the Remsenburg-Speonk School District (“Remsenburg”). Remsenburg is an elementary school district which ends as grade six. When children finish sixth grade at Remsenburg, they have a choice between attending middle school and high school in the [REDACTED] School District or the [REDACTED] School District. For all times relevant to this hearing, the parents have elected for the student to receive instruction from the [REDACTED] School District. See Appeal No. 22-010 at 10 n. 13.

The student in this case has been the subject of seventeen (17) prior State-level administrative appeals.[6] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.

Prior to July 2022, the District’s Director of Pupil Personnel Services (“PPS Director”) solicited [REDACTED] BOCES to determine whether it would be able to provide the student with related services over the summer (R. 103). In a letter dated June 13, 2022, [REDACTED] BOCES informed the District’s PPS Director that it “is unable to accommodate your request for summer itinerant Occupational Therapy and itinerant Speech services for your student... Our summer caseloads are already at/over full capacity; consequently, we do not have sufficient staffing to fulfill your service request” (Ex. SD-1 ex. B).

Given that [REDACTED] BOCES lacked itinerant occupational and speech therapists to provide related services the student over the summer, the District contacted eleven (11) agencies, starting on June 14, 2022, to try to locate therapists willing to travel to the District to provide related services to the student. Service providers at those agencies, however, were either unavailable or unwilling to travel to the District to provide related services to the student (Ex. SD-1 at ¶ 13, ex. E).

On June 16, 2022, the District’s PPS Director sent the parent a letter offering placement of the student in [REDACTED] BOCES’ Regional Summer School Program:

Since entering Kindergarten [the student] has been eligible for Extended School Year services to prevent substantial regression and the CSE will discuss specific recommendations for these services. [REDACTED] in-District students will again attend a Regional Summer School program for Extended School Year services. It is hoped that you will consider allowing [the student] to attend this program as it would provide him with the opportunity to practice his academic and communication skills with peers from his community as well as providing him the opportunity to meet new friends (Ex. SD-1 ex. C).

By email dated July 7, 2022, the student’s mother requested “immediate pendency extended school year services” for the student (Ex. SD-1 at ¶ 9). In response, the District’s PPS Director send the parent a letter on July 8, 2022 which advised:

As per your email on July 7, 2022 you have chosen not to permit [the student] to attend the Regional Summer School program that the [REDACTED] in-District students attend and instead have chosen pendency for extended school year services.

As such, [the student] will begin services on Monday July 11, 2022. The last day of instruction will be Thursday August 18, 2022. [The student] will receive two hours of instruction at the [REDACTED] Library from 10am – 12 pm daily. [REDACTED], special education teacher, will continue to provide [the student’s] instruction and an aide will be present at the library.

Last summer [REDACTED] BOCES provided [the student’s] related services; however, the District has been notified that there are no providers available. The District has canvassed several dozen agencies in search of a provider resulting in no available providers. You will be notified once a provider is available (Ex. SD-1 ex. D).[7]

The District’s PPS Director testified that during summer 2022, the student “received all of the hours [of instruction] that he was entitled to as per the [pendency] agreement, two hours per day for the six-week period. If the teacher was absent, those hours were made up” (R. 95; Ex. SD-1 ex. F).

In contrast, the District was unable to locate therapists to provide ESY related services to the student during summer 2022 (R. 22). In an August 11, 2022 letter, the District’s PPS Director advised the parents that “the District has canvassed several dozen agencies in search of a related service provider resulting in no available providers to provide speech therapy and occupational therapy this summer” (Ex. SD-1 ex. F). By letter dated August 30, 2022, the District’s PPS Director advised the parents that related services would be made up commencing on September 1, 2022:

[The student] will receive Adapted Physical Education, Speech Therapy, Occupational Therapy and Physical Therapy at [REDACTED] High School beginning September 1, 2022. Afterwards, [the student] will be transported to the [REDACTED] Free Library to receive two hours daily of instruction from 10:00am – 12:00 noon. The special instruction will take place Mondays, Tuesdays, and Wednesdays from 2:00pm – 4:00pm at the [REDACTED] Free Library. Ms. [REDACTED] will continue to provide this instruction to [the student].

In addition, due to the unavailability of therapists, [the student’s] ESY related services will be made up during the school year. [The student’s] therapists have been notified that he is to receive 6 additional occupational therapy sessions and 12 additional speech therapy sessions (Ex. SD-1 ex. G).

Upon resumption of school in September 2022, the District provided related services to the student as it possessed a speech therapist on staff and it was able to contract with [REDACTED] BOCES to deliver occupational therapy and physical therapy to the student during the 2022/23 school year (R. 185).

IV. POSITIONS OF THE PARTIES

A. The District The parent’s complaint should be dismissed. The complaint is insufficient, fails to state a cause of action, and/or is moot. The District complied with the parties’ 2019 Pendency Agreement when arranging for ESY instruction and related services for the student for summer 2022. The District did not unilaterally alter the student’s pendency placement during summer 2022 to [REDACTED] BOCES. There are no equitable reasons to award the student compensatory education (R. 54-58; Exs. SD-3, SD-4).

B. The Parent

During summer 2022, the student was entitled to receive ESY instruction and related services per the parties’ 2019 Pendency Agreement. The District’s PPS Director had no authority to unilaterally recommend the student’s placement in the [REDACTED] BOCES Regional Summer School Program. Difficulties in securing ESY providers for the student did not represent sufficient cause for the District to deviate from the parties’ 2019 Pendency Agreement during summer 2022. There is no evidence in the hearing record that the student did not suffer educational regression as a result of delays to, or denial of, pendency ESY services during summer 2022. The student is entitled to compensatory education to remedy the gross negligence of the District (R. 58-63; Exs. P-A, P-B, P-C).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (1) to ensure that students with disabilities have available to them a 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 (2) 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).[8]

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement." Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 2017). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471

F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.

§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. The "IDEA, [however,] 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 adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” Endrew F., 137 S. Ct. at 1001. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Endrew F., 137 S. Ct. at 1001 (holding that the IDEA “requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances”); Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).

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 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 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).[9]

The burden of proof 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. See N.Y. Educ. Law § 4404(1)(c); see also 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).

B. Pendency/Stay-Put Provision

During the pendency of any proceedings relating to the identification, evaluation or placement of the student, the IDEA and the New York State Education Law require that a student remain in his or her then-current educational placement, unless the student’s parents and the board of education otherwise agree. See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m); Ventura de Paulino v. New York City Dep't of Educ., 959 F.3d 519, 531 (2d Cir. 2020), cert. denied, 141 S.Ct. 1075 (2021); T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 170-71 (2d Cir. 2014); Mackey v. Bd. of Educ. of the Arlington Cent. Sch. Dist., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); M.G. v. New York City Dep't of Educ., 982 F. Supp. 2d 240, 246-47 (S.D.N.Y. 2013); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *20 (E.D.N.Y. Oct. 30, 2008); Board of Educ. of Poughkeepsie City Sch. Dist. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005).

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. See Zvi D. v. Ambach, 694 F.2d at 906; Wagner v. Board of Educ. of Montgomery County, 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996). The purpose of the pendency provision is to provide stability and consistency in the education of a student with a disability and "strip schools of the unilateral authority they had traditionally employed to exclude disabled students... from school". See Honig v. Doe, 484 U.S. 305, 323 (1987) (emphasis in original); Evans v. Board of Educ. of Rhinebeck Cent. Sch. Dist., 921 F. Supp. 1184, 1187 (S.D.N.Y. 1996), citing Board of Educ. of City of New York v. Ambach, 612 F. Supp. 230, 233 (E.D.N.Y. 1985).

A student's placement pursuant to the pendency provision of the IDEA is evaluated independently from the appropriateness of the program offered the student by the CSE. See Mackey, 386 F.3d at 160-61; Zvi D., 694 F.2d at 906; O'Shea, 353 F. Supp. 2d at 459 (noting that "pendency placement and appropriate placement are separate and distinct concepts"). The pendency provision does not require that a student remain in a particular site or location, see Ventura de Paulino, 959 F.3d at 532; T.M., 752 F.3d at 170-71; Concerned Parents and Citizens for the Continuing Educ. at Malcolm X Pub. Sch. 79 v. New York City Bd. of Educ., 629 F.2d 751, 753, 756 (2d Cir. 1980); see also Child's Status During Proceedings, 71 Fed. Reg. 46709 (Aug. 14, 2006) (noting that the "current placement is generally not considered to be location-specific"), or at a particular grade level, see Application of a Child with a Disability (Fayetteville-Manilus Cent. Sch. Dist.), Appeal No. 03-032 (SRO Oct. 24, 2013); Application of a Child with a Disability (Stockbridge Valley Cent. Sch. Dist.), Appeal No. 95-16 (SRO May 18, 1995).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. See Ventura de Paulino, 959 F.3d at 532; Mackey, 386 F.2d at 163; Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then-current educational placement” has been found to mean either: (1) the placement described in the student's most recently implemented IEP; (2) the operative placement actually functioning at the time when the pendency provision of the IDEA was invoked; or (3) the placement at the time of the previously implemented IEP. See Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; T.M., 752 F.3d at 170-171 (holding that the pendency provision "requires a school district to continue funding whatever educational placement was last agreed upon for the child"); Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed). Furthermore, the Second Circuit has stated that educational placement means "the general type of educational program in which the child is placed," see Concerned Parents, 629 F.2d at 753, 756, and that "the pendency provision does not guarantee a disabled child the right to remain in the exact same school with the exact same service providers," see T.M., 752 F.3d at 171.

Once a pendency placement has been established, it can be changed: (1) by agreement between the parties; (2) by an unappealed IHO or court decision in favor of the parents; or (3) by an SRO decision that a unilateral parental placement is appropriate. See 34 C.F.R. §§ 300.518(a), (d); 8 NYCRR §§ 200.5(m)(1)-(2); Ventura de Paulino, 959 F.3d at 532; Board. of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 483-84 (2d Cir. 2002), cert. denied 537 U.S. 1227 (2003); New York City Dep't of Educ. v. S.S., 2010 WL 983719, at *1 (S.D.N.Y. Mar. 17, 2010); Student X, 2008 WL 4890440, at *23; Arlington Cent. Sch. Dist. v. L.P., 421 F. Supp. 2d 692, 697 (S.D.N.Y. 2006); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 86 F. Supp. 2d 354, 366 (S.D.N.Y. 2000), aff'd, 297 F.3d 195 (2d Cir. 2002); Letter to Hampden, 49 IDELR 197 (OSEP 2012). If there is an agreement between the parties on the student's educational placement during the due process proceedings, it need not be reduced to a new IEP, and the agreement can supersede the prior unchallenged IEP as the student's then-current educational placement. See Schutz, 290 F.3d at 483-84; Evans, 921 F. Supp. at 1189 n.3; Murphy, 86 F. Supp. 2d at 366.

Due to the nearly continuous nature of the administrative due process proceedings and State-level administrative appeals – and related federal district court proceedings – involving this student, he has been receiving his special education program under various pendency placements since approximately the 2015/16 school year. See generally Application of a Student with a Disability, Appeal No. 22-102.

Presently, the student’s pendency placement is memorialized in a September 2019 Pendency Agreement (Ex. SD-3 ex. D). The portion of that Pendency Agreement relevant to this proceeding reads as follows:

2. Upon arrival at the defendant District, [the student] shall receive his scheduled related services, which consist of physical therapy, adaptive physical education, speech pathology and occupational therapy. Provision of such related services shall occur within the defendant District. [The student’s] aide shall accompany him throughout the provision of his related services. In the event that any particular related service provider cancels instruction, [the student’s] daily schedule shall not be cancelled, but [the student] shall receive carry-over activities from his aide which shall consist of instructional activities that allow [the student] to reinforce previously learned skills. The defendant District shall document any cancelled related services sessions, which shall be made up at a future date and time, as long as such time is provided within the normal time frames of [the student’s] typical school day (Ex. SD-3 ex. D).

3. Upon completion of his related services, [the student] will be bused to the local library for the provision of special education instruction. Either an aide or an attendant shall accompany [the student] on the bus; however, an aide shall accompany [the student] throughout the provision of his special education instruction. [The student] shall receive three hours of special education at the library as follows: instruction shall occur for a minimum of two hours pursuant to district policy, as previously scheduled; [the student] shall receive an additional hour of instruction to makeup previously missed instruction. In the event [the student’s] special education teacher shall cancel instruction, [the student] shall not be sent home, but the defendant District shall, upon its discretion, either bus [the student] to the local library with his aide, or keep him within the defendant School District, within a safe and appropriate space, where [the student] will receive carry-over activities. Under these circumstances, the defendant District’s obligations to maintain [the student’s] presence within the local library, or within the defendant District itself, shall not exceed 2 hours. At such time, [the student] shall be bused home with an attendant, whereupon [the student’s] parents shall be responsible for his receipt.

In his July 14, 2022 complaint, the parent asserts that the student was “vested in an educational ‘pendency placement’ that includes the provision of an extended summer year (ESY) program” and that the District failed to comply with that pendency placement during summer 2022 (Ex. P-A at ¶ 5). The 2019 Pendency Agreement, however, does not differentiate between instruction and related services delivered during the ten (10) month school year from the summer months, and is silent with respect to the location or content of ESY services (Exs. SD-1 ex. A at ¶¶ 2-3, SD-4 at 16). Nor was a twelve (12) month IEP yet in place for the student for the 2022/23 school year at the time the parent’s due process complaint was filed. However, as the District’s efforts (starting in June 2022) to secure ESY providers for the student, as well as its correspondence with the parents in June and July of 2022, demonstrates an understanding, if not an agreement, that the student was entitled to receive ESY services during summer 2022 (Ex. SD-1 exs. B, C, D, E, F, G), I will analyze the merits of the parent’s objections contained in the complaint.

  • • [REDACTED] BOCES Regional Summer School Program In his response to the District’s motion to dismiss, at the hearing, and in his post-hearing brief, the parent asserts that the District’s PPS Director unilaterally attempted to effectuate a change in the student’s “existing operative pendency placement,” i.e., the 2019 Pendency Agreement (R. 60-61; Exs. P-B at ¶ 1, P-C at 1, 6, 9-11). As this claim, however, was not raised the parent’s July 14, 2022 due process complaint, it is beyond the scope of this hearing (Ex. P-A).[10]

Alternatively, even this claim was properly raised in the parent’s due process complaint, I find that it is without merit. The June 16, 2022 letter from the District’s PPS Director to the parents states that “it is hoped that you will consider allowing” the student to attend the [REDACTED] BOCES Regional Summer School Program for Extended School Year Services (Ex. SD-1 Ex. C). A request to consider an available placement cannot reasonably be characterized as a unilateral placement (R. 103-104). While school districts have the authority to determine how and where a student’s pendency services are to be provided, see Ventura de Paulino, 959 F.3d at 533-534, there is no evidence contained in the hearing record that the District, its CSE, or any of its officials referred the student for admission into the [REDACTED] BOCES Regional Summer School Program or recommended the student attend that program via an IEP, an IEP amendment, or a Prior Written Notice (R. 201; Nov. Tr. 9-11, 15-30, 32).

  • • ESY Special Education Instruction In his July 14, 2022 due process complaint, the parent asserts that the District failed to comply with the parties’ 2019 Pendency Agreement by “failing to staff teachers” and “by failing to provide for the provision of related services” during summer 2022 (Ex. P-A at ¶ 5). I will address each claim in turn.

State regulations require that students "shall be considered for 12-month special services and/or programs in accordance with their need to prevent substantial regression." 8 NYCRR § 200.6(k)(1); see 8 NYCRR § 200.1(eee). "Substantial regression" is defined as "a student's inability to maintain developmental levels due to a loss of skill or knowledge during the months of July and August of such severity as to require an inordinate period of review at the beginning of the school year to reestablish and maintain IEP goals and objectives mastered at the end of the previous school year." 8 NYCRR § 200.1(aaa). State guidance indicates that "an inordinate period of review" is considered to be a period of eight weeks or more. See "Questions and Answers Extended School Year 2017," Office of Special Educ. (Feb. 2017), available at http://www.p12.nysed.gov/specialed/applications/ESY/esy-2017/ documents/questions-andanswers-extended-school-year-2017.pdf.[11]

The District’s PPS Director credibly testified that a special education teacher was available to start ESY instruction on July 5, 2022, the date on which in-district students commence ESY services, however, that teacher’s agency, [REDACTED], gave the District late notice that it would not provide services to the student any longer. The District then arranged for that teacher to provide ESY special education instruction to the student via a different agency, commencing on July 11, 2022 (R. 165-167). The District’s PPS Director also credibly testified that there is no prescribed date on which an eligible student’s ESY services must commence; only a requirement to provide an eligible student with thirty (30) days of such services (R. 161).

To address instances in which the student missed ESY special education instruction due to his teacher being late or absent, the District extended the student’s ESY special education instruction from August 18, 2022 to August 22, 2023 (Ex. SD-1 ex. F). The District’s PPS Director credibly testified that the student “received all of the hours [of ESY special education instruction] that he was entitled to as per the agreement, two hours per day for the six-week period. If the teacher was absent those hours were made up” (R. 95).

Based on the evidence contained in the hearing record as described above, I find that the District’s provision of special education instruction to the student during summer 2022 complied with the parties’ 2019 Pendency Agreement.

  • • ESY Related Services In a letter dated June 13, 2022, [REDACTED] BOCES informed the District that it did not possess sufficient staff to provide itinerant occupational therapy and speech therapy to the student during summer 2022 (Ex. SD-1 ex. B). In response, the District contacted eleven (11) agencies, starting on June 14, 2022, to try to locate therapists willing to travel to the District to provide related services to the student. Service providers at those agencies, however, were either unavailable or unwilling to travel to the District to provide related services to the student during summer 2022 (Ex. SD-1 at ¶ 13, ex. E). By letter dated August 30, 2022, the District’s PPS Director advised the parents that related services would be made up commencing on September 1, 2022 (Ex. SD-1 ex. G). Upon resumption of school in September 2022, the District provided related services to the student as it possessed a speech therapist on staff and it was able to contract with [REDACTED] BOCES to deliver occupational therapy and physical therapy to the student during the 2022/23 school year (R. 185).

The District complied with its obligation under the parties’ 2019 Pendency Agreement to provide related services to the student. The parties’ 2019 Pendency Agreement clearly contemplates that circumstances may arise in which related service sessions are cancelled. In such circumstances, “[t]he defendant District shall document any cancelled related services sessions, which shall be made up at a future date and time, as long as such time is provided within the normal time frames of [the student’s] typical school day” (Ex. SD-3 ex. D at ¶ 2). The District’s provision of additional related services to the student during the ten-month school year, to make up for missed ESY related services, was consistent with the parties’ 2019 Pendency Agreement.

Alternatively, while the parent seeks an award of compensatory education (on top of the make up related services provided to the student), there is no evidence contained in the hearing record that the student suffered substantial regression from missing related services during summer 2022 which would justify such an award. See Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 & n.4 (D.D.C. 2013) (collecting authority for the proposition that an award of compensatory education is not mandatory in cases where a denial of a FAPE is established); see also Application of the Bd. of Educ. of the Suffern Cent. Sch. Dist., Appeal No. 21-065 at 16 (SRO Apr. 19, 2021) (“Under certain scenarios - as presented by the circumstances in this matter - a district may not be required to provide compensatory educational services as a remedy if the deficiencies have already been mitigated”).

VI. ORDER

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

HEREBY ORDERED THAT:

The parent’s claim that the District violated the terms of the 2019 Pendency Agreement during summer 2022 is DENIED, the District’s motion to dismiss is GRANTED, and the parent’s due process complaint is DISMISSED.

Dated: January 31, 2023

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 plan 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 HEARING RECORD

PARENT

  • • Due Process Complaint/Impartial Hearing Request, 7/14/22, 1 pg.
  • • Response in Opposition to District’s Motion to Dismiss, undated, 14 pgs.
  • • Post-Hearing Brief, undated, 18 pgs.

SCHOOL DISTRICT

  • • Affidavit of [REDACTED], 10/12/22, 8 pgs.
  • • 2019 Pendency Agreement, 9/20/2019, 3 pgs.
  • • Letter to [REDACTED] from [REDACTED] BOCES, 6/13/22, 1 pg.
  • • Letter to parents from [REDACTED], 6/16/22, 1 pg.
  • • Letter to parents from [REDACTED], 7/8/22, 1 pg.
  • • Chart – Provider Unavailability, summer 2022, 1 pg.
  • • Letter to parents from [REDACTED], 8/11/22, 1 pg.
  • • Letter to parents from M. Ambrosini, 8/30/22, 1 pg.
  • • Letter to Superintendent from [REDACTED], 6/6/22, 3 pgs.
  • • Combined Verified Answer & Motion to Dismiss, 8/4/22, 20 pgs.
  • • Letter to parents from [REDACTED], 6/16/22, 1 pg.
  • • Letter to parents from [REDACTED], 7/8/22, 1 pg.
  • • Chart – Provider Unavailability, summer 2022, 1 pg.
  • • 2019 Pendency Agreement, 9/20/2019, 3 pgs.
  • • Post-Hearing Brief, 12/30/22, 22 pgs.
  • • Findings of Fact & Decision (IHRS Case No. 552797), 1/28/22, 29 pgs.

IMPARTIAL HEARING OFFICER

  • • Hearing Notice, 9/30/22, 1 pg.
  • • Extension Order, 10/3/22, 1 pg.
  • • Letter to IHO from [REDACTED], 10/9/22, 1 pg.
  • • Extension Order, 11/2/22, 1 pg.
  • • Hearing Notice, 11/9/22, 1 pg.
  • • Extension Order, 12/2/22, 1 pg.
  • • Extension Order, 1/1/23, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.,” except references to the November 28, 2022 transcript (which was not consecutively paginated) are noted as “Nov. Tr.” References to exhibits admitted into evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.”

[2] In a letter to the undersigned dated October 9, 2022, the parties stipulated that the scope of the hearing would be limited to pendency claims regarding ESY services. The parties agreed that allegations concerning the District’s alleged failure to timely schedule an annual review meeting for the student ahead of the 2022/23 school year would be heard in a separately filed matter (R. 52; Ex. IHO-III).

[3] At the conclusion of the District’s direct case, the parent moved for a directed verdict (R. 216-221). The District opposed the parent’s motion (R. 221-223). A decision on the parent’s motion was reserved until completion of the hearing on the merits (R. 223-225; Nov. Tr. 154).

[4] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 59-60, Nov. Tr. 156-158; Exs. IHO-II, IHO-IV, IHO-VI, IHO-VII).

[5] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).

[6] See Application of a Student with a Disability, Appeal No. 22-168; Application of a Student with a Disability, Appeal No. 22-163; Application of a Student with a Disability, Appeal No. 22-147; Application of a Student with a Disability, Appeal No. 22-102; Application of a Student with a Disability, Appeal No. 22-010; Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.

[7] The student’s ESY special education instruction did not begin on July 5, 2022, the date on which in-District students began receiving ESY, because the District received late notice from [REDACTED], the agency that provided the student’s special education teacher, that it would no longer contract with the District or [REDACTED] to provide services to the student (R. 165, 167; Ex. SD-4 at 7 n.2). The District secured an ESY special education instructor from another agency, to commence ESY instruction of the student on July 11, 2022 (R. 165-166).

[8] 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.

[9] The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives." See Endrew F., 137 S. Ct. at 1000.

[10] Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its due process complaint notice unless the other party agrees, 20 U.S.C. § 1415(f)(3)(B); 34 C.F.R. §§ 300.507(d)(3)(i), 300.511(d); 8 NYCRR § 200.5(j)(1)(ii), or the original due process complaint notice is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing, 20 U.S.C. § 1415(c)(2)(E)(i)(II; 34 C.F.R. § 300.507(d)(3)(ii); 8 NYCRR § 200.5(i)(7)(b). Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function. To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district." R.E., 694 F.3d 167 at 18788 n.4; see B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 (2d Cir. June 18, 2014).

[11] District courts in New York have followed the eight-week standard set forth in guidance when determining whether substantial regression has occurred. See D.D-S. v. Southold Union Free Sch. Dist., 2011 WL 3919040, at *15-*16 (E.D.N.Y. Sept. 2, 2011); see also F.L. v. Bd. of Educ. of Great Neck Union Free Sch. Dist., 274 F. Supp. 2d 94, 125 (E.D.N.Y. 2017).