NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 229835
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: N.Y.C. Dept. of Education
Home District: REDACTED
Service District: REDACTED
Date of Filing: 08/15/2022
Hearing Requested by: Parent
Hearing Dates: 05/22/2023
07/06/2023
07/17/2023
07/25/2023
Actual Record Closed Date: 08/18/2023
Date of Decision: 08/21/2023
Date of Distribution: 08/21/2023
Impartial Hearing Officer: Patricia Peña, Esq.
NAMES OF PERSONS WHO APPEARED ON 05/22/2023
For Student and Parent:
REDACTED
REDACTED
Witness for Parent: REDACTED, M. Ed. Transition and Vocational Expert
For the Department of Education:
REDACTED
NAMES OF PERSONS WHO APPEARED ON 07/17/2023
For Student and Parent:
REDACTED
REDACTED
Witnesses for Parent: REDACTED, Parent
For the Department of Education:
REDACTED
NAMES OF PERSONS WHO APPEARED ON 07/25/2023
For Student and Parent:
REDACTED
Witnesses for Parent: REDACTED, Parent
For the Department of Education:
REDACTED
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC”) filed on or about 08/15/2022 by Parent, through counsel on behalf of Student against the New York City Department of Education (“DOE” or “District”). I was appointed as the IHO on 08/17/2022.
On 10/07/2022, a pre-hearing conference was held. DOE stated that there may be a statute of limitation issue but would consult with Parent to avoid need for unnecessary motion practice. Parties asked for and were granted an extension of the compliance date and the case was scheduled for hearing for 11/15/2022. On or about 10/11/2022, at Parent’s request, I signed two subpoenas for documents.
The 11/15/2022 hearing date was converted to a status conference. DOE confirmed that a transition evaluation had not been conducted and Parent requested an IEE arguing that this assessment was necessary in order to fashion an appropriate relief at hearing. I issued an interim order on 12/7/2022. Several extensions were requested and granted to allow for completion of the evaluation. Following completion of the evaluation, on or about 03/13/2023, Parent amended its DPC and modified the relief sought based on the recent evaluation.
A virtual due process hearing was held on 05/22/2023, 07/17/2023, and on 7/25/2023. REDACTED represented Parent and REDACTED represented DOE. The District did not offer an documents or witness testimony into evidence, waived opening statement, and conceded a denial of FAPE.[1] Parent submitted exhibits A through U into evidence without objection[2] and made a brief opening statement.[3] Both parties made closing statements.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
Student is18 years old and is classified by DOE as having “Other Health Impairment.” [4] Student has a diagnosis of Autism; Social Communication- Level 1 (Requiring Supports); Restricted Interests and Repetitive Behaviors- Level 1 (Requiring Supports); Attention Deficit/Hyperactivity Disorder, Predominately Inattentive Presentation; and Unspecified Depressive Disorder.[5] In its DPC, Parent asserts that Student’s academic struggles commenced prior to the 9th grade when Student began to experience difficulty regulating his emotions and low frustration tolerance.[6] In May 2018, Student underwent a neurological evaluation. The evaluator recommended that Student be placed in a small class setting with peers of similar cognitive profiles, namely peers who had strong “verbal reasoning skills, contrasted with attention, executive functioning and fine motor delays.”[7] The Evaluator opined that Student’s inattention was suggestive that the ICT class setting was “too overstimulating.”[8] Despite these findings, on 08/10/2018, the Committee on Special Education (“CSE”) convened and recommended an ICT class.[9] In November 2018, Student received a laptop as part of his Assistive Technology support.[10] The laptop became a “gaming device” for Student and an addiction.[11] Student’s struggles continued through the pandemic, requiring psychiatric intervention.[12] For the 2021-2022 school year, Student attended Private School and graduated. Subsequently thereafter, Parent filed the instant action alleging a denial of FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years. [13]
ISSUE
The issue for determination is whether Student was denied a FAPE for 2019-2020, 2020-2021, and 2021-2022 school years (“SY”s). Specifically, whether the District’s failure to offer an appropriate program and supports during the SYs in question including a failure to conduct a transition assessment and offer transition services constitutes a denial of FAPE.
In light of the foregoing and as more fully discussed below, I find that DOE failed to meet its burden that Student was provided a FAPE during the SYs in question and find that Student is entitled to tuition reimbursement but is not entitled to compensatory relief sought.
Although only portions of the evidence are referenced herein, I reviewed the testimony and documents in full.
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
In May 2018, Student underwent a neuropsychological and educational evaluation. [14] Student was diagnosed with ADHD Inattentive Type, Developmental Coordination Disorder and Specific Learning Disorder with Impairment in Written Expression. Student was found to have “solid thinking abilities” but weak mechanical skills, poor working memory, slow processing speed, and difficulties with fine motor skills, executive functioning skills, and writing abilities. [15] The report further notes that Student’s “attention deficits and related slow motor speed contribute to difficulties in executive functioning and have the potential to impede his academic development. His deficits in attention and related abilities require intervention to promote his future successes.”[16] In short, the evaluator summarized Student’s deficits and strengths as follows: Deficits
• Sustained Attention
• Working Memory and Processing Speed
• Executive Functioning: Initiation, Planning, Organizing, Monitoring, Inhibition
• Graphomotor Control
• Writing: mechanics, organization, expression Strengths
• Verbal Reasoning
• Spatial Reasoning
• Visual Scanning
• Mathematics
• Reading
The evaluator recommended that Student be placed in a classroom with two teachers and cautioned that while Student might be able to learn in an ICT class, this type of class might be “too overstimulating” for Student.[17] The evaluator also recommended that Student be placed in a challenging environment with students of similar cognitive profiles. In July 2019, Student underwent a psychiatric evaluation. In addition to the earlier diagnosis, Student was diagnosed with Autism and Unspecified Depressive Disorder.[18] The psychiatrist recommended that Student be placed in a small school setting with peers of similar cognitive functioning.[19] It was also recommended that Student participate in Cognitive Behavioral Therapy to increase his repertoire of coping and emotion regulation skills to manage low mood, anxiety and his overall cognitive flexibility. [20]
The Assistant Director of the Private School testified that the Private School is an accredited middle and high school that provides all instruction on a 1:1 basis.[21] The instruction is tailored to meet each Student’s academic, social, and emotional needs.[22] All teachers have a bachelor’s degree and receive training and professional development throughout the year.[23] He testified that Student started at the Private School in July 2021.[24] The Assistant Director testified that Student suffered from anxiety, struggled to regulate his attention, and was easily distracted by technology.[25] When Student first started at the Private School, he did not participate in class but this changed over time.[26] The 1:1 small individualized approach allowed Student’s teachers to ability to redirect him in real time when he was not able to focus; tailor class content to his interests, adjust class pace depending on Student’s needs, and reinforce gaps in knowledge. [27] Teachers at the Private School are more than just teachers and are mentors as well and provide emotional and social support.[28] During remote instruction, Student was frequently distracted and sometimes withdrawn from class.[29] Without the 1:1 instruction Student received during the 2021-2022 school year, Student would not have been able to make meaningful progress and would have likely regressed. [30]
Transition Expert testified that the purpose of conducting a transitional assessment is to ascertain a person’s skills, career direction, interests, and values for purposes of defining postsecondary goals.[31] From an IDEA perspective, transition “focuses on career, vocation, independent living, and training and education.”[32] The assessment consisted of a series of interviews and review of documents including progress reports, neuropsychological and educational assessment and Student’s IEPs since 2018.[33] The report documents Student’s brief attendance at College which according to Transition Expert, is noteworthy from a transition standpoint because Student did not have the requisite skills to succeed in college.[34] Student’s self-determination and self-regulatory skills were not developed. Student had no personal management system to commit to school work.[35] Student’s 2018 neuropsychological assessment indicates that Student is of “average intelligence.”[36] Transition Expert testified that she reviewed Student’s IEPs and that the post-secondary goals were “very generic” with no plan on how to achieve and of the post-secondary goals.[37] As part of her assessment, Transition Expert analytical personality; scored 24% in the area of college readiness, and zero in the area of executive function.[38] Basic functional skills applicable to any career, work, or college education can be taught.[39] In sum, Student is not prepared to attend college. Student’s “goal setting, perseverance, self-regulation, initiative/motivation, and networking being critically deficient.” [40] Transition Expert notes that given Student’s “intelligence, if organized and motivated, he could succeed in a field of his choosing. From a transition perspective, Student requires professional support in interpreting this assessment as well helping him create a plan for exploration.” [41] Transition Expert recommends a one-year, full time transition program in a 24-hour immersive therapeutic environment or a 2-year part time, 20 hour per week individualized transition program.[42] The approximate cost of these programs is approximately $90,000 for the full time one year program and approximately $140,000 for the part time two year program. [43]
Parent testified that Student was diagnosed with ADHD in the spring of 2018 and with Autism in the spring of 2019.[44] Parent shared the results with the district and Student was placed in an ICT class.[45] Student was assessed, and his intelligence was found to be in the normal range.[46] Nothing about the evaluations suggested Student could not attend college. Parent paid $45,000 for tuition at College for which he is seeking reimbursement.[47] Parent opined that had Student received transition services and learned the skills to be a student, he would not have particularly once he was given a laptop and that by the end of the 11th grade, Student had incompletes in almost all subjects.[48] As a result, the summer before the start of Student’s senior year, Parent placed Student in Private School where Student completed high school and graduated. Student received “very good marks”[49] at the Private School but was not certain Student received homework planning skills.[50] The cost of attendance at the Private School was approximately $70,000 for which Parent seeks reimbursement.[51] Regarding the Transition Expert’s evaluation, Parent testified that he hopes Student can continue to work with Transition Expert and that DOE fund an hour a week.[52] This could help Student figure out where to go from here. Student is 18 and would have to be willing attend a program.[53] Parent testified about the various programs that may be appropriate for Student. He testified that Student needs to learn the prerequisite skills before attending of the programs identified as Student is recovering from the burnout of not thriving in College.[54] On cross examination, Parent testified that College is a school for students with learning disabilities.[55] Student did not receive transition services in the Private School.[56] On clarifying questions, Parent testified that Student expressed “some mild interest” in the programs recommended by Transition Expert[57] and that it could take up to 5 years to get Student where he needs to be to attend a program. [58]
Legal Framework
Burden
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 a 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. 59
FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. 60 A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. 61 A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable Student to receive educational benefits. 62 In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” 63 School districts are not required to "maximize" the potential of students with disabilities 64 but are required to provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords Student with an opportunity greater than mere 'trivial advancement'." [65]
59 NYS Educ. Law § 4404[1][c] 60 20 U.S.C. § 1400 [d] [1] [A] 61 34 C.F.R. § 300.13 62 Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]. 63 Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 [2017]. 64 Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d at 379; Walczak v. Florida Union Free Sch. Dist., 142 F.3d at 132.
Transition Services is defined as “a coordinated set of activities for a student with a disability, designed within a results-oriented process, that is focused on improving the academic and functional achievement of the student with a disability to facilitate the Student’s movement from school to post school activities, including, but not limited to, post-secondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation. The coordinated set of activities must be based on the student’s strengths, preferences, and interests, and shall included needed activities in the following areas: (1) instruction; (2) related services; (3) community experiences; (4) the development of employment and other post-school adult living objectives; and (5) when appropriate, acquisition of daily living skills and provision of a functional vocational evaluation.” [66]
In New York State, these services must be provided no later than the IEP to be in effect when the student turns 15 and must be updated annually.[67] These services must consider student’s strengths, preferences, and interests as they relate to post school activities.[68] A district’s failure to provide these services constitutes a procedural violation of FAPE. 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. [69] 2021-2022 School Year Tuition Reimbursement
Prong I
As to Prong I of the Burlington Carter standard, I find that DOE failed to meet its burden at the hearing. DOE waived opening statement, did not offer any witness testimony or documents into evidence, and conceded a denial of FAPE. Moreover, a review of the record herein supports the conclusion that the educational program offered by DOE was not consistent with the recommendations made by the neurologist in 2018 recommending that Student be placed in a small class setting with students of similar cognitive profiles. Therefore, I find that the District failed to offer Student a FAPE for the 2021-2022 school year.
Prong II
A private school placement must be “proper under the Act.”[70] This means the private school must offer an educational program that meets Student’s special education needs.[71] Parents seeking reimbursement “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate. Subject to certain limited exceptions, ‘the same considerations and criteria that apply in determining whether the [s]chool [d]istrict’s placement is appropriate should be considered in determining the appropriateness of Parents’ placement’” [72]
Parents need not show that the placement provides every special service necessary to maximize Student’s potential.[73] When determining whether a unilateral placement is appropriate, “[u]ltimately, the issue turns on” whether the placement is “reasonably calculated to enable the child to receive educational benefits.”[74] A private placement is appropriate if it provides instruction specially designed to meet Student’s unique needs. [75]
The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. 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 the educational benefit. Still, 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. [76]
Here, the evidence shows that the instruction at the Private School was individually tailored to meet Student’s academic, social, and emotional needs. The small, 1:1 class setting, enabled teachers to redirect Student and adjust the class pace as needed and also enabled teachers to tailor class content to meet his interests. The evidence also shows that Student made progress at the Private School and went to being withdrawn and not showing much interest in participating in class to engaging in the classroom. In sum, the weight of the evidence establishes that Student’s individual special education needs were addressed by the Private School and the instruction offered was "reasonably calculated to enable the child to receive educational benefits."[77] I note that the DOE offered no arguments concerning the appropriateness of Parent’s unilateral placement, nor challenged the equities in this action. Under these circumstances, I find that the Parent’s witnesses are credible and find hat the unilateral placement was appropriate.
Equities
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[78] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [79]
Here, Parent provided the necessary Ten-Days’ Notice of their concerns with DOE’s offer of FAPE for Student for the 2021-2022 school year on 09/07/2021.[80] Therein, Parent detailed specific concerns regarding the District’s failure to provide Student with transition entitlements and a failure to offer Student an adequate program and services.[81] Furthermore, Parent, gave DOE notice of his intention to unilaterally place Student at the Private School.[82] No evidence was submitted at hearing describing DOE’s response to the Ten-Day Letter.
Parent signed a contract with the Private School on 09/02/2021 for the 2021-2022 school year in the amount of $67,785.00.[83] There is no evidence suggesting that Parent did not cooperate with DOE and the CSE’s in its efforts to develop an IEP and recommend a program and placement for the 2021-2022. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement.
2019-2020 and 2020-2021 School Years
Compensatory Relief
As part of its relief, Parent seeks compensatory relief for DOE’s denial of FAPE for the 2019-2020 and 2020-2021 school years. Specifically, Parent seeks transition services to be provided by Transition Expert for an unspecified period of time until Student is ready to attend a transition program and reimbursement for Student’s tuition at College as part of compensatory. [84] The district conceded a denial of FAPE. The only question now is what the appropriate relief is.
Compensatory Education is an appropriate remedy for a denial of FAPE and can include an award of compensatory education.[85] The purpose of a compensatory education award is to place the student in the position he/she would have been in had the district complied with its obligation under the IDEA.[86] A court may, therefore “award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[87] Further, “whereas ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.”[88] A request for compensatory relief may be denied if there is not a sufficient a causal link in the record between any deprivation and Student’s current deficits. [89]
An award of compensatory education can be crafted following either a quantitative approach or a qualitative approach. The “quantitative” approach is based on the amount of time that comprised the FAPE deprivation.[90] The “qualitative” approach is based on a student’s needs and on the specific educational deficits that resulted from the FAPE deprivation. 91 This approach reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” [93]
The Second Circuit has not adopted a preferred approach and leaves the mechanics of structuring an award to the court’s discretion.[94] Irrespective of the approach taken in crafting the award, “the remedy must be ‘appropriate in light of the purpose of the Act.’”[95] In New York State, when a parent seeks compensatory relief, the burden is on the District to “describ[e] its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that [they] would have been but for the denial of FAPE.” [96]
In its closing, DOE argued that the relief sought by Parent is inappropriate and should be limited accordingly.[97] With respect to funding for transition services, DOE contends that Parent has not provided any clarity on who will provide the transition services, when the services will be provided, or the cost of the services sought. Therefore, it is “impossible” to determine the appropriateness of the program.[98] DOE contends that any award for transitional services should be limited based on where Student was when he graduated from the Private School with a GPA of 3.71 despite not receiving transition services.[99] DOE further contends that it is inappropriate for Parent to request DOE to refund Student’s attendance at College since there is no mention of 92 Id. at 524 contends that an IHO has broad discretion to award relief deemed appropriate 101 and that the consequences of DOE’s failures will take time to remedy and as such, Parent does not have better clarity. 102
The Second Circuit has held that compensatory education may be awarded to students who are ineligible for services under the IDEA by reason of age or graduation only if the district committed a gross violation of the IDEA which resulted in the denial of, or exclusion from, educational services for a substantial period of time. 103 Further, “it is a rare case where a student will graduate with a high school diploma and yet still qualify for an award of compensatory educational services..”[104] since graduating high school, is one of the “major goals and milestones” of the IDEA. [105]
Here, Parent contends that because the district failed to provide Student with transition services, Student did not have the requisite college readiness skills to prepare him for college. In assessing whether this procedural violation rises to the level of a gross violation, it is important to examine Student’s last year of high school. For his senior year, Student attended Private School where he “flourished” and graduated with a GPA of 3.71. 106 According to an interview with one of Student’s teachers from the Private School, Student “was not distracted by social
Tr. 115-116 101
Tr. 118 102
Tr. 119 103 see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 n.15 [2d Cir. 2015]; French v. New York State Dep't of Educ., 476 Fed. App'x 468, 471 [2d Cir. Nov. 3, 2011]; Somoza v. New York City Dep't of Educ., 538 F.3d [106], 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071, 1078-79 [2d Cir. 1988], aff'd on reconsideration sub nom., Burr v. Sobol, 888 F.2d 258 [2d Cir. 1989]; Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]). always done well, if not better than most.”[107] Regarding Student’s college readiness, Student’s teacher stated that while Student would not do well with complex writing, with remedial courses, Student’s writing would be enough. Further, while there is no evidence that Student received transition services at the Private School, post high school plans was a discussion in at least one of the courses he took. In the course, “Life Skills,” the progress reports indicate that there was some discussion about Student’s interests and what he saw himself doing after high school. [108] Additionally, all but one of the courses Student took at Private School were college prep level courses.[109] Further, according to Transition Expert, students with ADHD and autism, exhibit difficulties with organization, planning, and executive function.[110] In Student’s case, Student has the capacity to accomplish most daily life skills but requires the motivation to want to accomplish these tasks. Overall, Student “does not have challenges with skill deficits but rather performance.”[111] While in College, Student “did not attend classes, mostly stayed to himself, played video games, used his computer in his dorm room, and had no focus or motivation for college work.”[112] Based on this record, I do not find that DOE’s failure to provide transition services resulted in a lack of college readiness, rather, a lack of motivation is what likely lead to Student’s withdrawal from College. Further, the goal of transition services is to prepare students for life after high school and is not limited to college readiness. Transition Expert’s assessment and functional vocational evaluation was comprehensive and thorough, detailing Student’s strengths, interests, and possible career choices. The report should be used as a guide to help
ORDER
Based upon the above Findings of Fact and Conclusions of Law, I HEREBY FIND: (1) DOE failed to offer Student a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years.
(2) Parent’s claim for tuition reimbursement for the 2021-2022 school year is granted.
(3) DOE’s failure to offer Student transition services does not rise to the level of a gross denial of FAPE.
(4) Parent’s claim for compensatory relief is denied. IT IS THEREFORE ORDERED THAT:
(1) DOE shall reimburse Parent for the cost of tuition at the Private School for the 2021-2022 school year in the amount of $ $67,785.00. DOE shall reimburse Parent within 35 days of the date of this order.
SO ORDERED.
Dated: 08/21/2023
Patricia Peña, Esq. (signed electronically)
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, 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.
DISTRICT EVIDENCE
None
PARENT EVIDENCE
IHO EXHIBITS
Footnotes
[1] Tr. 7
[2] Tr. 10
[3] Tr. 10-13
[4] Parent’s A1 of 14
[5] Id. at A2
[6] Id. at A3
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at A4 – A5
[13] Parent’s A
[14] Parent’s D
[15] Id. at D-22
[16] Id.
[17] Id. at D-23
[18] Parent’s E
[19] Id.
[20] Id. at E-10
[21] Parent’s U2 of 13
[22] Id.
[23] Id.
[24] Id at 4 of 13
[25] Id. at 5 of 13
[26] Id.
[27] Id. at 5 and 6 of 13
[28] Id. at 6 of 13.
[29] Id. at 10 of 13
[30] Id. at 12 of 13
[31] Tr. 18-19
[32] Tr. 20
[33] Parent’s J5-J6
[34] Tr. 24
[35] Tr. 24
[36] Tr. 25
[37] Tr. 27-28 conducted a Career Personality Inventory which showed that Student has an optimistic and
[38] Tr. 31, 34
[39] Tr. 36
[40] Parent’s J 48
[41] Id.
[42] Id.
[43] Tr. 61
[44] Tr. 11
[45] Tr. 12
[46] Tr. 13
[47] Tr. 16 dropped out after two months of attendance. Parent testified about Student’s academic struggles
[48] Tr. 27
[49] Tr. 29
[50] Id.
[51] Id.
[52] Tr. 34
[53] Tr. 31
[54] Tr. 35-37
[55] Tr. 79
[56] Tr. 80
[57] Tr. 98
[58] Tr. 103 Mamaroneck Union Free Sch. Dist., 554 F.3d at 254; P v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008].
[65] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citation omitted]; see T.P. v.
[66] 8 NYCRR §200.1(fff)
[67] 8 NYCRR §200.4(d)(ix)
[68] Id.
[69] 20 U.S.C.§ 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii] Here, Parent contends that Student was denied a FAPE for the 2019-2020, 2020-2021 and 2021-2022 school years. Specifically, Parent contends that the program and services offered by DOE did not adequately address Student’s needs. At the hearing, the primary focus was DOE’s failure to provide Student with transition services and how this resulted in a denial of FAPE. As a result, Parent seeks tuition reimbursement for the 2021-2022 school year and compensatory relief for DOE’s denial of FAPE for the 2019-2020 and 2020-2021 school years.
[70] Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12, 15 [1993]; Sch. Comm. Of Burlington v. Depot of Educ., 471 U.S. 359, 370 [1985]).
[71] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 [2d Cir. 2007]; Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]).
[72] Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. Of Educ. Of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[73] Frank G., 459 F.3d at 364-65
[74] Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115
[75] 20 U.S.C. § 1401(29); Educ. Law § 4401[1]; 34 CFR 300.39[a)[1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. Of Educ. Of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[76] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65
[77] Frank G., 459 F.3d at 364
[78] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)
[79] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014)
[80] Parent’s C
[81] Id.
[82] Id.
[83] Parent’s L transition program or is ready to enroll in a college or university. Parent also seeks funding for a compensatory education equal to the period of deprivation]. 91 See Reid, 401 F.3d 516
[84] Tr. 124
[85] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014) citing Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 (2d Cir. 2008). See also, P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) (finding that the “IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education”).
[86] See Newington, 546 F.ed at 123; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005]
[87] Doe v. East Lyme, 790 F.3d at 454 [2nd Cir. 2015]
[88] Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005)
[89] See, e.g., Phillips v. Dist. Of Columbia, 932 F. Supp. 2d 42 (D.C.Cir. 2013) (upholding denial where student received a similar level of comparable services during the period of deprivation and there was support in the record for IHO’s conclusion that Student’s current difficulties do not stem from the FAPE denial); T.B. v. Prince George's Cty. Bd. of Educ., 897 F.3d 566 (4th Cir. 2018) (Parents failed to prove a loss of educational benefits where teachers showed that when student attended class he performed well and completed assignments); Somberg v. Utica Cmty. Schs., 908 F.3d 162 (6th Cir. 2018) (holding that Endrew F. standard is not applicable to determination of compensatory education and it is appropriate to consider any advancement made by Student in crafting an award, regardless of the substantive appropriateness of the IEP).
[90] M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to requires a “fact-specific inquiry” 92 and “[t]he ultimate award of compensatory education must be
[93] Id.
[94] Doe v. East Lyme, 790 F.3d at 457
[95] Doe. v. East Lyme, 790 F.3d at 457 citing to Burlington, 471 U.S. at 369.
[96] Application of a Child with a Disability, Appeal No. 22-004; see also M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *4 (S.D.N.Y. Mar. 30, 2017); Educ. Law § 4404(1)(c); E. Lyme, 790 F.3d at 457; and Reid, 401 F.3d at 524.
[97] Tr. 111
[98] Id.
[99] Tr. 113 it in the DPC and the appropriateness of the program is questionable. 100 Parent on the other hand
[104] Kirk v. New York City Dept. of Educ., 2020 N.Y. Misc. LEXIS 10804, 9 (December 2020) (Finding that Parent is not entitled to compensatory relief where Parent did not show how the district’s failure to develop an updated transition plan harmed the student).
[105] Id.
[106] Parent’s J8, J11 happenings and had a specific time to complete his homework which, [the teacher] reported, was
[107] Id. at J12
[108] Parent’s P 46
[109] Parent’s K
[110] Parent’s J 47
[111] Id.
[112] Parent’s J Student figure out career and employment goals. In sum, I find that DOE’s failure to provide Student with transition services does not rise to the level of a gross violation. Therefore, I find that Student is not entitled to compensatory relief.