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CASE NUMBER: 576616 - NYC: 229298
FINDINGS OF FACT AND DECISION
Case Number: 229298
Student’s Name[1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: # REDACTED
Hearing Requested by: REDACTED (“Parent(s)”)
Request Date/Date Complaint Filed: 07/13/2022
Date(s) of Hearing: 10/18/2022
Actual Record Closed Date: 11/02/2022
Date of Decision: 11/03/2022
Date of Distribution if Different than Decision Date: n/a
Hearing Officer: Harry A. Christodoulou
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 18, 2022
For the Student:
REDACTED (hereinafter referred to as “Parent’s representative”)
REDACTED (hereinafter referred to as “Parent”)
For the Department of Education:
REDACTED (hereinafter referred to as “District’s representative”)
BACKGROUND AND PROCEDURAL HISTORY
Student is a REDACTED-year-old classified as a student with a disability under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.
On July 13, 2022, Parent, through Parent’s representative firm, filed[2] a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA (Exhibit P-A). I was appointed on July 26, 2022, to preside over the claims in the DPC in terms of New York State regulations, and to conduct an impartial hearing (“IH”) pursuant to 20 U.S.C. § 1415(f) and New York State Education Law § 4404(1) to determine the claims in the DPC concerning Student’s special education program.
It is asserted in the DPC that, based on numerous procedural and substantive grounds, the DOE failed to offer Student a free and appropriate public education (“FAPE”). Parent is seeking, inter alia, a finding that the DOE denied Student a FAPE for the 2022-2023 school year (“SY”), tuition reimbursement/funding for the cost of Student’s placement at the Attending School (defined on page 22) for the 2022-2023 SY, and compensatory services (Exhibit P-A-7). Although the proposed solution includes a request for an order on pendency, the parties confirmed that pendency had been resolved amongst themselves (Exhibit P-A-1, -6, & P-D)(T. P5, L6-11).
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA[3] and its implementing regulations,[4] and the New York State Education Law[5] and its implementing regulations.[6]
PARTIES’ POSITIONS AND CASES PRESENTED
District’s representative confirmed at the IH that the DOE was: not putting on a case, not calling any witnesses nor proposing any documents for admission to the Record; District’s representative also confirmed that the District was conceding Prong I, namely that it failed to provide Student with a FAPE for the SY at issue. District’s representative also confirmed that the DOE was waiving both an opening and closing statement.
Parents, through the Parent’s representative, submitted thirty documents in support of the Parent’s case. Twenty-nine of Parent’s proposed exhibits were admitted to the Record at the IH (and are listed below) after confirming with the District’s representative that there were no objections from the DOE to those documents being admitted into evidence. At the IH I had requested that proposed exhibit P-C be excluded from the documents admitted to the Record and Parent’s representative confirmed that the proposed exhibit could be withdrawn. I however have found it to be relevant (addressed further below), and therefore have admitted that exhibit to the Record as well.
Parent’s disclosure included the signed affidavits of four witnesses in support of Parent’s case, namely, Parent’s Witness 1 through Parent’s Witness 4 (all defined on page 22), as well as an unsigned affidavit of Parent (Exhibits P-Y through P-CC). These were all admitted to the record as Parent’s witnesses were not required for either cross-examination or clarifying questions and Parent was in attendance and it was confirmed that Parent would attest to the contents of Parent’s unsigned affidavit.
In a combined opening and closing statement, Parent’s representative inter alia addressed: Student’s diagnosis, presenting delays and deficits; the DOE’s failure to recommend a school and the school that Student attends; how the DOE failed to provide Student with an appropriate educational placement and program for the 2022-2023 extended SY, the Student being a ‘12-month student’; Parent’s notice of DOE’s failure and the delay in responding; the IEP meeting and the various failures asserted in regard to the program recommended; how the Attending School is an appropriate educational environment for Student and how it is reasonably calculated to allow Student to make progress, addressing the curriculum followed, the methodologies employed, the services provided, the student-to-teacher ratio, and also providing examples of Student’s progress at the Attending School; how an appropriate program also consists of home-based services, asserting the recommendations and hours proposed by Parent’s witnesses in their affidavits; the hourly rates proposed; and the relief requested.
PREVAILING PARTY
Parent is the prevailing party, and an award or Order is granted in favor of Parent.
LEGAL FRAMEWORK
A FAPE is offered to a student when (a) the DOE complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its Committee on Special Education (“CSE”) through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.[7]
If a procedural violation is alleged, an impartial hearing 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.[8]
The IDEA directs that, in general, an impartial hearing officer’s decision must be made on substantive grounds based on a determination of whether the student received a FAPE,[9] and default judgments are disfavored by the federal courts.[10] A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[11]
School districts are not required to “maximize” the potential of students with disabilities,[12] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and... affords the student with an opportunity greater than mere ‘trivial advancement.’”[13] The IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.”[14] The IDEA does not automatically require the provision of school services during the summer months for all students with disabilities; rather, such services must be provided when they are a necessary element of a FAPE for the student.[15]
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement, which applies in this case.[16] The parties’ representatives confirmed their understanding and agreement on the burden of proof (T. P6, L13-25; P7, L1-14).
The DOE may be required to pay for educational services obtained for a student by the student’s parent, if the services offered by the DOE were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim.[17]
FINDINGS OF FACT AND DECISION
[I] Appropriate Remedies: Tuition Reimbursement/Funding
Prong I - Denial of a FAPE:
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[18] The DOE elected to concede that it failed to provide Student with a FAPE for the 2022-2023 SY. Given the DOE’s decision to concede Prong I, it has not discharged its burden in these proceedings to establish that it provided Student a FAPE for the 2022-2023 SY. Even if the concession had not been made, the Record has established that although the DOE did provide Student with an IEP,[19], it had not provided Student with a FAPE for the for the 2022-2023 SY.
Parent testified[20] (Exhibit P-Z) inter alia that:
In April of 2021, Parent informed the IEP team of Parent (and Student) having moved from REDACTED to REDACTED, and that Student needed a kindergarten placement; the IEP team told Parent that someone would make contact regarding a school placement, but the DOE failed to contact Parent prior to July of 2021; as a result, Parent began to locate a school for Student in REDACTED during the Spring of 2021 and was unsuccessful; all of the schools that Parent contacted informed Parent that they did not have a seat for Student or could not implement the services and supports on Student’s IEP; without any help from the DOE, Parent located the Attending School; Student has attended the Attending School since November of 2021 due to the DOE being unable to locate an appropriate placement for Student.
The DOE last developed an IEP for Student on June 24, 2022; Parent did not agree with the DOE’s IEP for a number of reasons, including that it failed to take Parent’s concerns into consideration at the IEP meeting as the IEP was provided to Parent less than one hour after the meeting was concluded, it included inaccurate information, and it did not appropriately address Student’s needs.
Despite recommending a general REDACTED placement for Student for the 2022-2023 SY, the DOE failed to provide Parent with any specific school recommendation for Student; and that without a recommendation for Student, Parent submitted a ten-day notice to the DOE through Parent’s representative’s firm, informing the DOE of Parent’s intention to send Student to the Attending School at public expense for the 2022-2023 SY, absent an appropriate placement recommendation.
Although the IEP on record covered the 2022-2023 ESY, it would not have appropriately addressed the issues, concerns, and recommendations raised by Parent and Parent’s witnesses (addressed below)(Exhibit P-Y, P-Z,P -AA, P-BB, & P-CC). Parent also had no idea where the proposed IEP would have been implemented, given the DOE’s failure to provide a school location letter, whether the proposed placement had availability, and whether it could have implemented the recommended program. Accordingly, even without the DOE’s concession, the Record would have established that the DOE had failed to meet its burden to establish that Student was provided a FAPE for the 2022-2023 SY.[21]
Parent has accordingly met the first criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding.
Prong II - Appropriateness of the Parent’s Placement:
Parents have the burden of proving that the unilateral placement was appropriate. To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the student.”[22] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[23] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression. The standard to apply is whether “[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child.”[24] The Judges in the Gagliardo case wrote that “no one factor is necessarily dispositive in determining whether parents’ unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child’s individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child’s potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction”[25] (my emphases).
In both instances highlighted above, the focus is on the needs of the child, which are individual and unique, and that the placement must reasonably serve those needs to an extent that permits the child to benefit from the instruction. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP.
Evidence on Record:
Parent’s representative presented detailed testimony by Parent’s Witness 1, and Parent and submitted documentary evidence in support of the Parent’s position that the Attending School placement was an appropriate placement for the 2022-2023 SY.
Parent testified[26] (Exhibit P-Z) as to:
How Parent believes that the Attending School is an appropriate placement for Student and has allowed Student to make good progress in all areas of Student’s education since being enrolled there, addressing the related services and therapies that Student receives, the reports Parent regularly receives from Student’s teachers and providers, as well as the good progress Parent has observed in Student’s reading and writing skills; how Parent has noticed Student’s progress in the area of communication since attending the Attending School, by using different forms to communicate such as making gestures, making vocalizations, and using an AAC device to express Student’s wants and needs, and that the words that Student has been attempting to use have been getting clearer.
How Student has been better able to follow directions since attending the Attending School; how Student still requires maximum support to complete academic assignments and to stay engaged in class work, despite the progress; Parent’s belief that Student requires a structured, educational environment where all of Student’s needs can be met, including “a lot of individual attention and a small classroom environment in order to make good progress”; Parent’s belief that the Attending School is an appropriate placement for Student based on the progress that Parent has observed Student make and the supports and services provided.
Parent’s Witness 1 testified (Exhibit P-Y) as to:
Witness’s title, namely Director of the Attending School; Witness’s educational background, credentials, and work experience, referencing Witness’s resume (Exhibit P-X); Witness’s duties and responsibilities; the Attending School’s program offering and mission, as well as the approach it adopts to meet the needs of children with a variety of skill sets and medically complex needs; how instructional activities are designed for each student to maximize their full potential and be as independent as possible; and how the learning environment promotes the active engagement of its students utilizing a multi-modality approach to learning to facilitate the acquisition of academic and life skills.
How the Attending School operates on specific Core Values (defined on page 22) to support and empower its diverse learners; how the curriculum addresses all cognitive, intellectual, social development, as well as physical, mental health, and nutritional needs, being a research-based curriculum designed to educate and support students with moderate to severe disabilities; how its teachers utilize the New York State Core Curriculum Standards to create individualized learning experiences, along with Applied Behavior Analysis (“ABA”) and other models and various curricula.
How the school’s curriculum is based on the individual abilities and needs of the learners, addressing the school’s educational learning approach, goals, and experiences provided; addresses the models employed to address students’ behavioral needs; the Board-Certified Behavioral Analysist (“BCBA”) that is on staff to monitor, evaluate, intervene, train, and support its students and staff; and how the school offers related services and enrichment programs, including speech therapy, feeding therapy, occupational therapy, physical therapy, counseling, vision services, hearing services, physical fitness classes, paraprofessional services, augmentative and alternative communication (“AAC”) devices and services, art therapy, music therapy, cooking, social skills, and community exploration.
How for the 2022-2023 SY there were REDACTED students enrolled in the upper and lower schools, with students ranging from ages 3 to 21; how in determining the make-up of the classes, students with similar learning needs and the levels of support required to make a student successful is considered; and the qualification and certifications of: the supervisor of all of the teachers - New York State Certified Special Education Teacher and holding a Master's Degree in Inclusive Education; the teachers – all holding a master’s degree and being certified in Special Education within the State of New York; the teaching assistants - all certified, either Level 3 or in the process of achieving Level 3 status; and its paraprofessionals - all have at least a high school degree, while some have college level courses, but also receiving additional training beyond the standard professional development sessions.
As to the professional development its teachers and staff receive; the technology available in all classrooms; the quarterly progress reports teachers submit to parents and how they remain in regular communication with parents by way of daily communication sheets and email.
Witness’s familiarity with Student; how Student requires a comprehensive and specialized school that can provide Student with intensive individualized supports throughout the day in a safe environment; how Student presents with deficits in academic, social, fine motor, communication, and behavioral skills; how Student uses an AAC device to help with communication; how the Attending School provides Student with a small, safe environment, with sound-proof classrooms to support Student’s attention needs and to ‘tone down’ extraneous sounds; how Student’s classroom has a very high teacher-to-student ratio, providing Student with individualized and specialized support in a calm, regulated, and safe environment.
How for the 2022-2023 SY, the school determined that Student’s needs would be met in an eight student, one teacher, two paraprofessional (“8:1:2”) ratio special class with the following related services: Speech-Language Therapy (“S/L”) four times a week individually, AAC session one time a week individually, and Occupational Therapy (“OT”) three times a week individually, determined as an appropriate program for Student through the review of Student’s provider reports, various evaluations, and medical reports.
How the school building has been architecturally designed for students with special needs - LED lighting, sensory tiles on the wall, soundproof classrooms; how Student’s classroom specifically has accommodations for Student’s behavioral and sensory needs, including sensory gym yoga, art therapy, physical education, and music therapy as well as technology supports; how Student was placed with students who were cognitively, academically, socially, and behaviorally at the same level as Student.
How Student’s needs are also supported through spacious hallways and classrooms; visual markers to help with navigation; small classroom ratios so that Student can receive an appropriate amount of individualized support throughout the day; a ‘sensory diet’; sensory gym time and specialized equipment to support Student’s specific motor skills; a language rich environment through the use of trained speech pathologists; and informal interventions and supports determined by the BCBA to keep Student on task, focused, and engaged as well as to promote positive behaviors and decrease negative behaviors.
How, based on Witness’s knowledge of Student and the Attending School, Witness believes Student is making appropriate progress during the 2022-2023 SY across Student’s subjects and related services – detailing what each of Student’s related services sessions work/focus on and the progress achieved; how Witness believes Student is appropriately placed at the Attending School and the reasons for stating so; how Student has progressed in math skills, reading skills, writing, ADL skills, and social and emotional skills, with examples provided.
I find that the Student’s program at the Attending School is specifically designed to cater to a class or category of students, namely those with Autism and language-based learning disabilities, requiring a small class size with a low student-to-teacher ratio, one-on-one instruction, individualized attention, and small group instruction. The entire program, including the learning methodologies and the supports provided were all designed to meet the needs of this class or category of student. The Student falls in this class or category.
The detailed evidence presented by Parent’s Witness 1 substantiating how Student’s teachers specifically tailored the program for Student’s unique and individual needs, is uncontested and credible. The evidence on Record, which was not disputed through any testimony, let alone any expert testimony contradicting the testimony of Parent’s Witnesses 1, supports the Parent’s assertion that the Attending School is an appropriate placement for Student.
The testimony of the Parent, Parent’s Witness 1, and the Parent’s documentary evidence (Exhibits P-H, P-I, P-J, P-K, P-L, P-M, and P-DD) establishes that the Attending School is appropriate and is providing Student with educational instruction that is specifically designed to meet Student’s unique special education needs, supported by such services that were necessary to permit Student to benefit from instruction, for the 2022-2023 SY. I find that, based on the Student’s attendance at the Attending School for the extended SY in question, as testified to by Parent, and Parent’s Witness 1, Student is making progress and will likely continue to do so for the remainder of the 2022-2023 SY.
Parent has therefore met the second criterion of the three-part test set out in the Burlington/Carter case for tuition funding/reimbursement.
Prong III - Equitable Factors:
Equitable considerations are relevant to fashioning relief under the IDEA.[27]
The IDEA also provides that reimbursement/funding may be reduced or denied when parents fail to challenge the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents.[28]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.”[29]
This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.”[30]
Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision[31].
The hearing record reflects that Parent notified the CSE by email correspondence dated June 16, 2022, of Parent’s intention to enroll Student at the Attending School and seek public funding for the 2022-2023 SY (Exhibit P-G). I find that in this letter Parent offered sufficient information to put the DOE on notice about Parent’s concern regarding the CSE’s failure to make an appropriate program and placement recommendation and informed of Parent’s intentions, giving the DOE an opportunity to cure any deficiencies, which is the intent underlying the ten-day notice requirement.[32]
Although it is apparent from the record that Parent signed a contract enrolling Student in the Attending School prior to the start of the extended 2022-2023 SY and before providing the CSE the ten-day notice, namely on June 10, 2022 (Exhibit P-DD-7), the Second Circuit has explained that, so long as parents cooperate with the CSE, “their pursuit of a private placement [i]s not a basis for denying their [request for] tuition reimbursement, even assuming... that the parents never intended to keep [the student] in public school.”[33] I find that the timing as to when the ten-day notice was sent to the CSE to be of no consequence to Parent’s claim and the relief being granted.
Amounts Claimed:
A District must provide extended school year (“ESY”) programming services when a student's IEP team determines on an individual basis that the services are necessary for the provision of a FAPE to the child.[34]
The term ESY services means special education and related services that: are provided to a child with a disability: i) beyond the normal school year of the public agency; ii) in accordance with the child's IEP; iii) at no cost to the parents of the child; and iv) meet the standards of the state educational agency.[35] I note that the IEP prepared for the Student on record (Exhibit P-B) determined that Student was eligible to receive special education services and/or program during July/August (Exhibit P-B-24, & P-B-28). Based on the Record, I do not find that the IEP team’s determination should be disturbed, which is also supported by Parent’s Witness 1 testimony (Exhibit P-Y-5, par. 30; P-Y-7, par. 44).
Parent’s Witness 1 confirmed Student’s tuition rate at the Attending School for the 2022-2023 SY, namely $112,000, which amount covers Student’s base tuition and all of the related services (Exhibit P-Y-7, par. 42).
Affiant (defined on page 22), employed at the Attending School as Financial Analyst, also confirmed, as of September 20, 2022, the total contracted annual tuition rate of $112,000.00 owing to the Attending School for the 2022-2023 SY for Student’s enrolment from July 5, 2022 through June 23, 2023 (i.e., the extended SY), less the $100.00 deposit paid by Parent leaving a balance of $111,900.00 due to the Attending School (Exhibit P-M-1). This evidence is consistent with Parent’s testimony (Exhibit P-Z-3, par. 29).
Parent also testified that: Parent currently works as a REDACTED; this year, Parent anticipates earning no more than $4,000.00; Parent does not have the financial means to fund Student’s tuition at the Attending School; and is seeking direct funding from the DOE for Student’s placement at the Attending School for the 2022-2023 SY and to be reimbursed for the payment that was made (Exhibit P-Z-4, par. 30 & 31). I find that a case for direct funding based upon need has been made out. This evidence was not contested.
I also do not find any factors applicable to warrant a reduction of the claim for tuition funding based upon equitable factors. Parent confirmed having always participated in Student’s education and attending all IEP meetings that the DOE held (Exhibit P-Z-3, par. 28). No equitable factors were raised by the DOE.
Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition reimbursement/funding. Having met all three criteria of the Burlington/Carter test, Parent is entitled to reimbursement/funding for the cost of Student’s placement at the Attending School for the 2022-2023 SY.
[II] Appropriate Remedies: Compensatory Services Parent is also seeking compensatory education or compensatory services for the District’s failure to provide Student with a FAPE. A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE.[36]
An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation.
A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).
Before addressing details of Parent’s relief for compensatory education or services, it is necessary to address whether an appropriate remedy for the denial of a FAPE should consist of both tuition reimbursement/funding and compensatory education or services, which is being sought in the DPC.
The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.[37] Some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement (or funding) for the costs of a unilateral placement is also at issue for the same time period[38] (my emphasis). The Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit.
Unlike the Third Circuit, the Second Circuit's approach to compensatory education may leave room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement (funding) is denied under a Burlington/Carter analysis.[39]
It has been stated that where it is “permitted, it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meet the student's unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement.”[40]
Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA[41].
It is noted on the first page of the DPC that Parent’s representative’s firm represents Parent in matters pertaining to the educational program of special education and related services provided by the DOE to Student for the 2020-2021, 2021-2022, and 2022-2023 SYs. Although the firm’s representation explicitly addresses these three SYs in the DPC (Exhibit P-A-1), the DPC also mentions additional proceedings that were brought by Parent against the DOE and relief granted (Exhibit P-A-1, & -3). Parent also testified about those proceedings and the relief granted (Exhibit P-Z-2). It is asserted in the DPC that the DOE failed to provide a FAPE to the Student for all three SYs (Exhibit P-A-4), for the reasons set out in the DPC, however these reasons and the supporting evidence led at the IH almost exclusively focuses on the IEP relevant to the 2022-2023 SY (Exhibit P-A-4, P-A-5, & P-A-6). The proposed solution only seeks a finding that the DOE denied Student a FAPE for the 2022-2023 SY (Exhibit P-A-6). Additionally, the form accompanying the DPC clearly notes that the requested relief applies only to the 2022/2023 SY (Exhibit P-A-8, & P-A-9).
At the IH, Parent’s representative sought to admit the FOFD pertaining to the prior proceedings referenced in the DPC and Parent’s affidavit. I invited Parent’s representative to withdraw the exhibit due to my view that generally prior FOFDs are not relevant to subsequent SYs. The proposed exhibit (previously proposed by Parent’s representative as exhibit P-C) had been put forward mainly for purposes of pendency, but the parties ultimately resolved pendency amongst themselves. Parent’s representative confirmed that the exhibit could be withdrawn. I am however including the previous FOFD (hereinafter referred to as the “Previous FOFD”), as an IHO exhibit (Exhibit IHO-I), as it indeed has relevance to the requested relief, specifically the award for compensatory education or services sought.
It is apparent from the Previous FOFD that the claims covered the 2019-2022, 2020-2021 and 2021-2022 SYs and sought “tuition reimbursement, compensatory education, and independent evaluations as relief” (Exhibit IHO-I-3). After finding that the DOE failed to provide Student a FAPE for those three SYs, the IHO awarded tuition funding/reimbursement for the 2021-2022 SY, independent evaluations, the CSE to reconvene, and compensatory services (Exhibit IHO-I-12, & -13).
Significantly, the IHO in the Previous FOFD records that Parent also requested that the IHO order that the decision does not preclude any compensatory services and instruction that might be recommended by the independent educational evaluations and the IHO further orders that any recommended compensatory services in the independent evaluations be additionally funded by the DOE by an independent provider of the Parent’s choosing at their normal and customary rate, or that the Parent is not precluded from seeking these additional compensatory services in a future case regarding the Student. The IHO specifically notes in the decision that as student is receiving “significant relief, and Parent had the opportunity to request and was given significant compensatory services” (my emphasis), the IHO declined to provide Parent the additional opportunity to request more services. The IHO noted further that Parent provided no legal or factual basis for that request.
Based upon my interpretation of the Previous FOFD, the IHO has not only “closed the door” to Parent’s claim for compensatory education or services relating to the 2020-2021 and 2021-2022 SYs, but explicitly provided a comprehensive remedy as relief for all three SYs relevant to that case. This would further explain the terms in which the proposed relief were coached in the DPC to focus only on the 2022-2023 SY. To the extent that the proposed relief in the DPC seeks relief relevant to either the 2020-2021 and/or 2021-2022 SYs, any such relief is dismissed.
The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE[42]. Any awarded compensatory education would need to provide an appropriate remedy for a denial of a FAPE, factoring in the tuition funding claim being awarded.
Additionally, the purpose of compensatory education is neither to punish the District[43] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.”[44]
Although it has been conceded that the DOE denied Student a FAPE for the 2022-2023 SY, Student has not in fact experienced a denial of a FAPE and denial of appropriate services for the 2022-2023 ESY, given the Parent’s timely filing of the DPC, and the pendency or stay-put rights that flow by operation of law. Student has therefore not been denied appropriate services for an extended period of time. Student would have experienced a denial of appropriate services for the 2022-2023 SY but for Parent’s intervention by reenrolling Student at the Attending School. Parent’s claim for tuition funding is being granted in totality.
Factoring in the tuition funding claim being awarded, I do not find any circumstances, let alone any unique circumstances, applicable to warrant awarding additional compensatory education or services. This is not one of the “rare cases” warranting such additional relief.
Parent’s Witness 2 (Exhibit P-AA) recommends compensatory services in the form of a bank of: i) 207 S/L therapy hours; and ii) 46 hours of assistive technology training, which in Witness’s opinion Student is entitled to “due to the delays in all domains of [Student’s] language functioning”, and required “to ensure confident access to” the recommended tools, respectively. Neither of these recommendations are in any way linked by Parent’s Witness 2 to the DOE’s failure to provide Student with a FAPE for the 2022-2023 SY, after factoring in the tuition funding claim being awarded, which claim covers Student’s attendance at the Attending School since the start of the extended SY and which has been found to be an appropriate placement, where Student is making progress.
The same issues apply to Parent’s Witness 3’s (Exhibit P-BB) recommended compensatory services in the form of a bank of: i) 4,140 hours of 1:1 ABA services; and ii) 138 hours of parent, counseling, & training, as well as Parent’s Witness 4’s (Exhibit P-CC) recommended compensatory services in the form of a bank of 138 hours of OT. In fact Parent’s Witness 3 expressly references concerns regarding “previous public-school placement” that “was most likely ineffective for optimizing [Student’s] performance” and directly attributes the DOE’s denial of a FAPE during the 2019-2020, 2020-2021, 2021-2022 SYs as the basis used for Witness’s calculation of compensatory hours. None of that is germane to the current SY (2022-2023).
Parent’s Witness 1 testified as to the focus of the various therapy sessions, the goals that are being pursued, and the progress Student is making in each domain (Exhibit P-Y-6, & -7), which also works on helping Student engage in activities of daily living, and demonstrate self-help skills. It also encompasses AAC weekly services which Student receives, comprising programming and modification of Student’s AAC system, as well as supporting Student’s family, caregivers, and educational team.
Parent’s Witness 1 confirms that Student has demonstrated an increased understanding of the contingency of Student’s device, is able to access the device, and look to the staff member working with Student for what is being requested. Given the progress attested to Parent’s Witness 1, supported by Parent’s testimony, I also do not find that additional home-services are warranted to teach and generalize skills in a different setting other than the school and to allow for Parent to be part of the generalization process. Parent’s Witness 1 testified that the team at the Attending School communicates with Student’s parents daily and that they are actively involved in Student’s learning (Exhibit P-Y-7).
The tuition amount being awarded is the amount determined due as an equitable remedy in the circumstances of this case and should not be adjusted either up or down, as the remedial purpose of the IDEA is being served by that amount.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that, the DOE shall reimburse Parent the tuition payment made to the Attending School for the Student’s placement at the Attending School for the 2022-2023 school year in the sum of $100.00 (One Hundred Dollars), upon the submission of Parent’s proof of payment(s) to the Attending School in that amount for the 2022-2023 school year.
- • FURTHER ORDERED that, the DOE shall directly fund Student’s placement at the Attending School for the 2022-2023 school year in the sum of $111,900.00 (One Hundred and Eleven Thousand, Nine Hundred Dollars), minus any payments already made by the DOE to the Attending School for the Student’s tuition for the 2022-2023 school year under or in terms of Pendency (if applicable).
SO ORDERED.
DATED: November 03, 2022
__H.A.C._(Signed Electronically)___
Impartial Hearing Officer
Harry A. Christodoulou
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
Exhibit
Document
Date
Pages
P-A
Parent Impartial Hearing Request
07/12/2022
10
P-B
Individualized Education Program
06/24/2022
30
P-C
Withdrawn
-
-
P-D
Pendency Agreement
08/26/2022
2
P-E
Department Social History Update
03/12/2021
3
P-F
Department Educational Evaluation
03/16/2021
2
P-G
Ten Day Notice with Delivery Receipt
06/16/2022
5
P-H
Attending School Program Description
2022
5
P-I
Attending School June 2022 Progress Report
2022
9
P-J
Attending School August 2022 Progress Report
2022
15
P-K
Attending School 2022-2023 Summer Schedule
2022
1
P-L
Attending School 2022-2023 Schedule
2022
2
P-M
Attending School 2022-2023 Tuition Affidavit
09/20/2022
1
P-N
Other Agency rate sheet
05/05/2022
2
P-O
Agency rate sheet
Undated
1
P-P
Independent Assistive Technology Evaluation
08/05/2022
20
P-Q
Independent Speech and Language Evaluation
08/05/2022
14
P-R
Independent Applied Behavior Skills (ABA) Assessment
08/15/2022
19
P-S
Independent Functional Behavior Assessment (FBA) and Behavior Intervention Plan (BIP)
08/15/2022
23
P-T
Independent Occupational Therapy Evaluation
08/23/2022
12
P-U
Resume of Parent’s Witness 2
Undated
2
P-V
Resume of Parent’s Witness 3
Undated
2
P-W
Resume of Parent’s Witness 4
Undated
1
P-X
Resume of Parent’s Witness 1
Undated
2
P-Y
Affidavit of Parent’s Witness 1
10/11/2022
7
P-Z
Affidavit of Parent
Undated
4
P-AA
Affidavit of Parent’s Witness 2
10/14/2022
5
P-BB
Affidavit of Parent’s Witness 3
10/13/2022
5
P-CC
Affidavit of Parent’s Witness 4
10/14/2022
4
P-DD
Attending School 2022-2023 Enrollment Contract
06/13/2022
8
DOE’S EXHIBITS
Exhibit
Document
Date
Pages
-
-
-
-
IHO’S EXHIBITS
Exhibit
Document
Date
Pages
IHO-I
Final Order of Fact and Decision, Case REDACTED
05/28/2022
23
Footnotes
[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
[2] The DPC was filed or submitted after hours on July 12, 2022, and therefore the initial request date is reflected as the following business day.
[3] U.S.C. § 1400 et seq.
[4] C.F.R. § 300 et seq.
[5] Educ. Law Art. 89 § 4404 et seq.
[6] NYCRR § Part 200.
[7] Bd. of Educ. v. Rowley, 458 U.S. 206, 206-07 [1982]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].
[8] 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].
[9] U.S.C. § 1415[f][3][E][i].
[10] See Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005]; G.M. v. Dry Creek Joint Elementary Sch. Dist., 595 F. App'x 698, 699 [9th Cir. 2014]; Jalloh v. Dist. of Columbia, 535 F. Supp. 2d 13, 19-20 [D.D.C. 2008]; and Sykes v. Dist. of Columbia, 518 F. Supp. 2d 261, 267 [D.D.C. 2007], as well as Application of a Student with a Disability, Appeal Nos. 20-167; 20-203 and 21-032.
[11] Rowley, 458 U.S. at 203.
[12] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].
[13] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.
[14] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.
[15] See Antignano v. Wantagh Union Free Sch. Dist., 2010 WL 55908, at *11 [E.D.N.Y. Jan. 4, 2010].
[16] NYS Educ. Law § 4404(1)(c).
[17] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; See also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 [2d Cir. 2006], cert denied, and Bd.of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 [Oct. 15, 2007].
[18] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[19] The projected implementation period of Exhibit P-B is reflected as 07/05/2022 and the projected date of annual review is reflected as 06/24/2023 (Exhibit P-B-1).
[20] Parent’s unsigned statement was affirmed under oath on the Record at the IH on October 18, 2022.
[21] In L.B., ex rel. E.B., v. New York City Dep’t of Educ. the U.S. District Judge wrote: “Substantive violations of IDEA may include the failure to propose an IEP or deficiencies in the IEP itself. Id.; Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 238-39, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). School districts are required to have a written IEP in effect for each child with a disability by the beginning of the school year, 20 U.S.C. § 1414(d)(2)(A), and, in New York State, the school year begins annually on the first day of July. See N.Y. Educ. Law § 2(15). Thus, failure to provide a written IEP by July 1 constitutes a substantive denial of FAPE. C.W.L. and E.L. v. Pelham Union Free Sch. Dist., 149 F. Supp. 3d 451, 465” (122 LRP 8348) [S.D.N.Y. 2015] (citations included). This case addressed a statute of limitations issue, where the parent had relied upon the following failures by the DOE (the “Failures”): to hold an annual review for the student for the relevant school year; to provide the parent with prior written notice of a change, or lack thereof, to the student's IEP; to send a school location letter with a placement for the student for the relevant school year; and to produce an annual IEP by the first day of the relevant school year. It was conceded by the DOE that the Failures had constituted the denial of a FAPE and the DOE did not contest that it had denied the student a FAPE. The IHO Decision, which was the decision being appealed, did not probe whether the denial of a FAPE was procedural, substantive, or both, but found that "the DOE's failure to present a case at the hearing is a concession that it denied the student FAPE...." The U.S. District Judge wrote, about the Failures, that in “any case, there were clearly both procedural and substantive violations of IDEA that amounted to the denial of a FAPE”. Id.
[22] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007].
[23] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006].
[24] Gagliardo, 489 F.3d at 115.
[25] Gagliardo, 489 F.3d at 112 (quoting Frank G., 459 F.3d at 364-65).
[26] Parent’s unsigned statement was affirmed under oath on the Record at the IH on October 18, 2022.
[27] Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826 [2d Cir., 2014]; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"].
[28] U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; see S.W. v. New York City Dep't of Educ., 646 F. Supp. 2d 346, 362-64 [S.D.N.Y. 2009]; Thies v. New York City Bd. of Educ., 2008 WL 344728 [S.D.N.Y. Feb. 4, 2008]; M.V. v. Shenendehowa Cent. Sch. Dist., 2008 WL 53181, at *5 [N.D.N.Y. Jan. 2, 2008]; Bettinger v. New York City Bd. of Educ., 2007 WL 4208560, at *4 [S.D.N.Y. Nov. 20, 2007]; Carmel Cent. Sch. Dist. v. V.P., 373 F. Supp. 2d 402, 417-18 [S.D.N.Y. 2005], aff'd, 192 Fed. App'x 62, 2006 WL 2335140 [2d Cir. Aug. 9, 2006]; Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 660-61 [S.D.N.Y. 2005]; see also Voluntown, 226 F.3d at 69 n.9; Wolfe v. Taconic Hills Cent. Sch. Dist., 167 F. Supp. 2d 530, 533 [N.D.N.Y. 2001].
[29] U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1].
[30] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004].
[31] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 [2d Cir. 2006]; Voluntown, 226 F.3d at 68; Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 [E.D. Pa. Oct. 22, 2007].
[32] Greenland Sch. Dist., 358 F.3d at 160.
[33] C.L., 744 F.3d at 840.
[34] C.F.R. § 300.106[a][2].
[35] C.F.R. § 300.106[b].
[36] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[37] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.
[38] See for example D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 [3rd Cir. 2012] holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"; and P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 [3rd Cir. 2009] holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school".
[39] See Application of a Student with a Disability, Appeal No. 16-050.
[40] See Application of a Student with a Disability, Appeal No. 20-151.
[41] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].
[42] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.
[43] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010].
[44] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.