New York City Department of Education, Impartial Hearing Decision

Case Number: 588568 – NYC: 239715

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parents(s)

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: June 16, 2023

Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (“IHO”) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (“IDEA”) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student.

Overview This is a “reimbursement” case with a compensatory education component. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis.

Compensatory Education Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and. . . mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997].

This case involves a demand for tuition reimbursement for the 2022-2023 school year (“SY”), and a compensatory education claim for 2020-2021 & 2021-2022 SYs. The Parents filed the complaint notice on September 28, 2022 (Ex. A). I was appointed as the IHO on December 13, 2022. A hearing was held across multiple dates.^[1] The Parents introduced exhibits A-M into the record and called two (2) witnesses: the Head of the Private School and the Mother. The District did not offer exhibits, nor did they call witnesses to testify on their behalf.

Parents’ Position The Parents allege that the District failed to provide the Student a Free Appropriate Public Education (FAPE) for the 2020-2021, 2021-2022, and 2022-2023 SYs. The Parents are requesting tuition reimbursement for the 2022-2023 SY. The Parents also allege that the District failed to provide related services and request compensatory educational services for the 2020-2021 & 2021-2022 SYs. Specifically, the Parents claim that “. . .the [District] denied a free, appropriate public education (“FAPE”) to [the Student] for the current 2020-2021, 2021-2022, and 2022-2023 school years.” (Ex. A-1). To remedy the above, the Parents seek reimbursement for the tuition costs, and compensatory education for missed related services, associated with the unilateral placement of the Student at the Private School.

District’s Position The District did not defend Prong I nor raise substantial questions regarding Prong II or III.

Background of the Case In her testimony the Parent describes the Student candidly. (Ex. M) She is diagnosed with cerebral palsy. She was first diagnosed when she was three years old. “She is slightly hunched over when she walks.” The mother relates that [The Student] has a speech and language delay and a learning disability.

The Parent enrolled [the Student] in the Early Intervention Program when she was an infant. She started receiving occupational therapy and physical therapy. And then speech was added when she was a toddler. After Early Intervention, [the Student] went onto a special needs preschool, and then a District [] school for kindergarten. [The Student] attended an 8:1+1 District [] classroom from kindergarten through fifth grade. [The Student] was happy in elementary school and social, but she was not learning. The Parent felt like the District [] school was only babysitting her instead of educating her.

After elementary school, the District switched [the Student’s] 8:1+1 classroom to a 12:1+1 classroom for middle school. (This reportedly did not go well for the Student.) The record does not note the date of a CSE meeting held to develop an IEP for the 2022-2023 SY. However, on September 7, 2022, the Parents sent the District a ten-day notice letter^[2] in which they rejected the recommendation and notified the District of their intent to unilaterally place the Student at the Private School for the 2022-2023 SY. (Ex. B). The Parents filed the complaint notice on September 28, 2022. (Ex. A).

Scope of the Hearing The scope of the impartial hearing is limited to the issues raised in the DPC. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the DPC that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

Student History The Student was [REDACTED] years old and classified with an Intellectual Disability^[3] during the 2022-2023 SY (Ex. A-1). In an evaluation (Ex. C) a Neuropsychologist noted that the Student is described as “sociable and engaging.” (Ex. C-2). The Student has also been described as “pleasant, agreeable, eager, and [an] engaged learner.” (Ex. C-3). The Student’s overall adaptive skills are categorized as “moderately low” and exhibits mild challenges with socialization. The Student experiences challenges with communication, with specific weaknesses in receptive and expressive language. The Student’s neurocognitive scores fall generally below expectations. The Neuropsychologist stated that the Student’s language challenges meet the criteria of a DSM-5 recognized language disorder. The Student has poor visual-perceptual and visuo-motor skills. The Student underperforms academically, earning “Very Low” achievements in reading, spelling and math. (Ex. C-4).

Legal Overview The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a FAPE. 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as 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, or secondary school education in the state involved, and

(D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9). ^[4] A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a CSE, whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally, 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an IEE of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

Prong I

Did the District Provide a FAPE?

Legal Standard

Procedural Standard Detailed procedural provisions lie at the heart of the IDEA. 20 U.S.C. §§ 612 and 615; 34 C.F.R. §§300.300-300.576; Evans v. Rhinebeck Central School District, 930 F. Supp. 83 (S.D.N.Y. 1996); B.E. R.R. v. State Bd. of Educ. 874 F.2d 1036, 1041 (5th Cir. 1989). In order to achieve the goal of providing all children with eligible disabilities with a FAPE, the IDEA statute requires that the states comply with “extensive procedural rights and safeguards” in order to receive federal funds for use in special education programs. See 20 U.S.C. § 615(a); LIH v. New York City Board of Educ., 33 IDELR 1 (E.D.N.Y. 2000); J.G. v. Board of Education of the Rochester City Sch. Dist., 830 F.2d 444, 445 (2d Cir. 1987).

In evaluating whether the District has complied with the procedural requirements of the IDEA, I consider whether the alleged procedural violation either 1) impeded the Student’s right to a free and appropriate public education, 2) significantly impeded the Parent’s opportunity to participate in the decision making process regarding the provision of a free and appropriate education, or 3) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); see also, Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp.2d 415, 419 (S.D.N.Y. Jan. 9, 2007), Application of a Child with a Disability, Appeal No. 07-007.

Substantive Standard IDEA requires an educational program reasonably calculated to enable a child to make progress appropriately considering the child's circumstances. Endrew F. v. Douglas Co. School Dist. Re-1, 137 S. Ct. 988 (2017). This obligation of the District is accompanied by the requirement to demonstrate the appropriateness of the program recommended by its CSE. (Application of a Child Suspected of Having a Disability, Appeal No. 93-9; Application of a Child with a Handicapping Condition, Appeal No. 92-7; Application of a Handicapped Child, 22 Ed Dept Rep 487 [1983]). To meet its burden, a board of education must be able to “. . . offer a cogent and responsive explanation for their decisions . . .” Endrew F., Supra.

Analysis

I first look to the Parents’ allegations to determine the scrutiny to apply in evaluating the District’s presentation. The complaint notice was explicit about the following alleged issues:

• Several of [the Student’s] IEP goals did not change from 2021 to 2022– an indication that The Student did not reach those goals. Her learning was also negatively impacted by the Covid-19 pandemic which forced her to participate in remote learning for the latter half of her sixth grade year and for the entirety of her seventh grade year. • Although [the Parent] presented a Neuropsychologist report to the [District] to review and consider the results and recommendations, the [District] failed to do so. This is the backdrop in which I weigh the District’s position, mindful that the District has the burden of proof. In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

The District conceded Prong I to the extent that they did not defend the/any recommended program or placement. L.O. v. N.Y. City Dep't of Educ., 822 F.3d 95, 111 2016 U.S. App. LEXIS 9239. There was no testimony indicating the nature of the CSE deliberations, or even if such deliberations occurred. Rather, I am left to speculate concerning the particulars of the review process, the rationale employed by the CSE members and the discussions that may or may not have contributed to a final recommendation. Further, given the myriad specific substantive allegations against the school, and the failure to defend, I find that the District fell short of their burden in this case.

Conclusion Upon review, I find that the procedural violation resulted in a denial of FAPE for the Student. I, therefore, rule for the Parents on Prong I.

Prong II

Legal Issue: Did the Parents Establish the Appropriateness of the Private School?

Legal Standard I now consider whether the Parents met their burden of proving the appropriateness of the unilateral placement of the Student at the Private School. On Prong II, New York federal courts have held that parental placements are “subject to fewer constraints than that applied to the school authorities.” Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp 529 [S.D.N.Y. 2010] The Second Circuit has clearly stated:

“. . . [P]arents 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.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105 [2d Cir. 2007] quoting Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006] Moreover, parents "may not be subject to the same mainstreaming requirements as a school board." Frank G. v. Bd. of Ed. of Hyde Park [2d Cir. 2006] quoting M.S. v. Bd. of Ed. of City Sch. Dist. of Yonkers, 231 F.3d 96, 105 [2d Cir. 2000] citing Warren G. v. Cumberland County Sch. Dist., 190 F.3d 80, 84 [3d Cir. 1999] (holding that "the test for the parents' private placement is that it is appropriate, and not that it is perfect").

The Head at The Private School – Testimony via Affidavit The Private School Co-Education Head began the testimony on behalf of the Parents by stating their credentials and responsibilities:

I received my Bachelor of Arts in Psychology and Criminal Justice from [] College, and my Master of Science degree in Childhood Elementary Education and Special Education, Grades 1 - 6, from [] College.

I am Professional Level New York State certified to teach students with Disabilities, Grades 1 - 6, and Childhood Education Grades 1 - 6. I also hold a license for General Education and Special Education in [], and a license in Special Education in []. (Ex. L-1).

The Private School Co-Education Head then described the program at the Private School:

[the Private] School has three different programs: a) [], b) [], and c) []. The [] and [] programs are for students with disabilities who need individualized instruction. Students who are in the [] program have the support of a special educator and receive 180 minutes of related services. Students who are enrolled in the [] program have up to 240 minutes of related services and the additional support of an associate teacher ( 1 : 1 ) . Every student in these programs has an individualized plan, which describes the needs of the student, and how instructors can support the student and the organization and planning of their work. (Ex. L-2).

The Private School Co-Education Head continued, by describing the Student’s file and individual program in some detail:

After a thorough review of records which included teacher recommendations, neuro psych, IEP, and any other information the parents submitted, [the Student] was invited for an interview. After [the Student] was interviewed, she was accepted after our team discussed both his reports and the interview process; they strongly felt [the Student] was an appropriate candidate for [the Private School].

For the 2022-2023 school year, [the Student] was enrolled in the [] program.

Each student enrolled in the [] program has an individualized academic plan.

The instruction is differentiated and based on the learning style, strengths, interests, and needs of each student. Students in the [] program are taught in small class sizes, with a low student-teacher ratio. The students in the [] program are appropriately grouped in terms of strengths, areas of need, and overall readiness levels.

For the 2022-2023 school year, I interact with [the Student] almost every day and have worked with her both in the classroom setting and in small groups. I also have observed [the Student] in a variety of settings. I worked closely with [the Student’s] teachers and therapists to develop and monitor her 2022-2023 school year program, including her goals and objectives, services, support, and accommodations. We work collaboratively as a team to ensure that [the Student’s] program is appropriately addressing his academic, social, emotional, and attention needs... (Ex. L-3).

The Private School Co-Education Head concluded with an assessment of the program’s appropriateness considering the Student’s needs, as well as ways he has progressed.

[The Student] has made progress this year, so far. She has developed friendships and is often observed smiling and engaging with peers. [The Student] has a few peers she considers her good friends and plans lunches out in the community with them. She is engaged in classes, demonstrating more confidence as she continues to adjust to a new school. She is volunteering to answer questions more in class and even raising her hand without prompting.

In my professional opinion, I think that the [the Private] School is an appropriate school for [the Student]. She is demonstrating growth both academically and regarding her social connections, and emotional growth. [The Private] School is a small community that not only provides substantial teacher support, but also groups similar social and academic peers. [The Student] has grown at [the Private] School thanks to teacher redirection, rephrasing, and tailoring academic topics to is personal life. (Ex. L.5).

The Mother – Affidavit Testimony The Mother describes why she chose to send the Student to this specific Private School:

I took [the Neuropsychologist’s] report and began researching private schools that could carry out her recommendations. I came across [the Private School]

School and attended an Open House. I believed it was the right setting for [the Student. I showed the school [the Neuropsychologist’s] report, and they assured me that they could meet [the Student’s] needs. I was worried that it was too expensive for me to afford. I receive SSI benefits for [the Student] because of our low-income status. But I felt so strongly that [the Student] could not spend another year in an inappropriate school, that I decided to enroll her at [the Private] School.

At [the Private School], [the Student] has a full schedule and her own 1:1

Associate Teacher full-time. Her schedule includes all the core academic subjects, gym, Theatre Production, speech and occupational therapy twice a week, physical therapy three times a week, and also Life Skills and Learning Center. They created their own set of essential goals for [the Student’s] learning and social development, and they track her progress each quarter. (Ex. M.2).

The Mother describes how the Student has benefited from his time at the Private School:

I see that [the Student] is becoming a more independent learner. She’s using the tools that [the Private] school has given her, like graphic organizers and a dry ease white board to carefully breakdown assignments. The project-based handson learning is really good for [the Student]. It helps her connect what she’s learning to the real world. [The Student] is also becoming more confident in interacting with her classmates because she can express herself better and better organize her thoughts– the OT and speech are helping in that regard. (Ex. M-2).

In this impartial hearing, I wish for the judge to see the changes that I have seen in [the Student] since she began attending [the Private] School. School is now meaningful for [the Student]. And I feel she is being prepared for life after high school. I would like the judge to order payment for [the Private] School and reimbursement for my tuition deposit. And any make-up services or compensatory services that the judge can order would be greatly appreciated. [the Student] could use those services this summer before school reopens in the fall. (Ex. M-3).

Conclusion In addition to considering the testimony and observations of the Head, I am mindful of the unique and complicated profile of the Student as outlined above in the “Student History”, “Background of the Case” and as is amplified throughout the record.

To conclude, I find that the Private School provided educational instruction specially designed to meet the unique needs of the Student. I credit the Parents’ exhibits and witnesses for articulating the appropriateness of the placement in addition to the Student’s progress. The Parents have met their burden by establishing that such services were necessary to permit the Student to benefit from instruction. I, therefore, rule for the Parents for Prong II.

Prong III

Legal Issue: Did the Parents Cooperate with the District?

Legal Standard A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents where equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192).

"Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148 5). 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 5 § 300.148 Placement of children by parents when FAPE is at issue.

(a) General. This part does not require an LEA to pay for the cost of education, including special education and related services, of a child with a disability at a private school or facility if that agency made FAPE available to the child and the parents elected to place the child in a private school or facility. However, the public agency must include that child in the population whose needs are addressed consistent with §§ 300.131 through 300.144.

(b) Disagreements about FAPE. Disagreements between the parents and a public agency regarding the availability of a program appropriate for the child, and the question of financial reimbursement, are subject to the due process procedures in §§ 300.504 through 300.520.

(c) Reimbursement for private school placement. If the parents of a child with a disability, who previously received special education and related services under the authority of a public agency, enroll the child in a private preschool, elementary school, or secondary school without the consent of or referral by the public agency, a court or a hearing officer may require the agency to reimburse the parents for the cost of that enrollment if the court or hearing officer finds that the agency had not made FAPE available to the child in a timely manner prior to that enrollment and that the private placement is appropriate. A parental placement may be found to be appropriate by a hearing officer or a court even if it does not meet the State standards that apply to education provided by the SEA and LEAs.

(d) Limitation on reimbursement. The cost of reimbursement described in paragraph (c) of this section may be reduced or denied (1) If - (i) At the most recent IEP Team meeting that the parents attended prior to removal of the child from the public school, the parents did not inform the IEP Team that they were rejecting the placement proposed by the public agency to provide FAPE to their child, including stating their concerns and their intent to enroll their child in a private school at public expense; or (ii) At least ten (10) business days (including any holidays that occur on a business day) prior to the removal of the child from the public school, the parents did not give written notice to the public agency of the information described in paragraph (d)(1)(i) of this section;

(2) If, prior to the parents' removal of the child from the public school, the public agency informed the parents, through the notice requirements described in § 300.503(a)(1), of its intent to evaluate the child (including a statement of the purpose of the evaluation that was appropriate and reasonable), but the parents did not make the child available for the evaluation; or (3) Upon a judicial finding of unreasonableness with respect to actions taken by the parents.

(e) Exception. Notwithstanding the notice requirement in paragraph (d)(1) of this section, the cost of reimbursement - (1) Must not be reduced or denied for failure to provide the notice if - (i) The school prevented the parents from providing the notice; (ii) The parents had not received notice, pursuant to § 300.504, of the notice requirement in paragraph (d)(1) of this section; or (iii) Compliance with paragraph (d)(1) of this section would likely result in physical harm to the child; and

(2) May, in the discretion of the court or a hearing officer, not be reduced or denied for failure to provide this notice if -

(i) The parents are not literate or cannot write in English; or (ii) Compliance with paragraph (d)(1) of this section would likely result in serious emotional harm to the child. (Approved by the Office of Management and Budget under control number 1820-0030) (Authority: 20 U.S.C. 1412(a)(10)(C)) such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at 7 [S.D.N.Y. Aug. 27, 2010]).

Tuition reimbursement 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 child 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." (20 U.S.C. § 612[a][10][C][iii][I] ; see 34 C.F.R. § 300.148[d]) 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." (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004])

Analysis

The Parents sent a ten-day notice letter in a timely manner, expressing their intent to unilaterally place the Student at the Private School for the 2022-2023 SY. In the letter, the Parents informed the District that they would seek funding from the District for the placement. (Ex. B).

Conclusion Upon review of the record, I find that the Parents cooperated with the District and did nothing to impede them from developing an appropriate IEP for the Student. As such, I find no reason for a reduction in tuition reimbursement however no compensatory education. I, therefore, rule for the Parents in Prong III for tuition reimbursement and transportation.

Compensatory Education

SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Educ., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]).

In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student

W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Accordingly, an award of additional services should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hourby-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518, 525 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]

Analysis

The Parent related: “The pandemic started during her sixth-grade year, and she went on remote learning. She had to stay on remote learning for the entire 2020-2021 school year due to her medical conditions.” She continued: “Unfortunately, [the Student] was not successful at remote learning. She was very far behind academically, and it was hard for her to sit and focus on Google Classroom with other students on the videoconference. She did not understand what was being taught, and she had no 1:1 support available to her from the school. During the pandemic, there was no 1:1 paraprofessional available for remote learning.” (Ex. M-1).

The Parent also references the Neuropsychologist evaluation (Ex. C), in this evaluation the Neuropsychologist gives a synopsis of the Student’s educational history and the necessity of related services: [The Student] entered pre-kindergarten with an IEP under the classification of Other Health impairment and was enrolled in an 8:1+1 classroom in the [] setting with mandated related services of occupational, physical, and speech-language therapies and has remained in this setting through 5th grade. While in 5 grade, [The Student] participated in an updated psychoeducational evaluation th and on an abbreviated measure of cognition [The Student’s] overall IQ fell in the Extremely Low range (WASI-II – 2018: FSIQ 4 = 49, <0.1 percentile) Her academic achievement fell in the Very Low – to – Low ranges (WIAT-III – 2018).

There were no concerns regarding her social, behavioral, or emotional functioning but it was noted that challenges with motor and language development significantly impacted her academic growth. At that time, there were no adjustments made to her IEP.

Upon transitioning to 6th grade in the [] setting, [The Student] was placed in a 12:1+1 classroom with the same level of related services including parent counseling and training and a full-time, individual mobility paraprofessional.

Due to the COVID-19 pandemic, [The Student] participated in virtual learning for the latter half of her 6th grade year and the entirety of her 7th grade year.

As an 8th grade student, measured at the 1st grade level and her functional math at the 2nd grade level. [The Student] participated in a psychoeducational evaluation in November of 2021 while in 8th grade. Results indicated that her overall intellectual functioning was in the Extremely Low range when compared to her same aged peers (WISC-5 – 2021: FSIQ = 49, <0.1 percentile) with consistent levels of deficit across verbal, non-verbal, and visual processing domains. Similarly, her academic achievement fell in the Extremely Low range when compared to her same aged peers (WIAT-IV – 2021). [The Student] exhibited poorly developed phonics, reading, spelling and math skills.

Following that evaluation’s [The Student’s] IEP classification was changed to Intellectual Disability.

Throughout the years, [The Student] has been described as a pleasant, agreeable, eager, and engaged learner. She enjoys interacting with both peers and teachers, is able to follow classroom rules and routines and does not present with any emotional or behavioral based challenges. However, there has been concerns noted regarding her stamina and attention regulation. What is most apparent in her educational history is the lack of academic progress over the years despite intervention. [The Student’s] academic learning has been very slow despite growth in social, adaptive, and functional skills. functional reading skills are measured at the 1st grade level and her functional math at the 2nd grade level. [The Student] participated in a psychoeducational evaluation in November of 2021 while in 8th grade. Results indicated that her overall intellectual functioning was in the Extremely Low range when compared to her same aged peers (WISC-5 – 2021: FSIQ = 49, <0.1 percentile) with consistent levels of deficit across verbal, non-verbal, and visual processing domains. Similarly, her academic achievement fell in the Extremely Low range when compared to her same aged peers (WIAT-IV – 2021). [The Student] exhibited poorly developed phonics, reading, spelling and math skills. Following that evaluation’s [The Student’s] IEP classification was changed to Intellectual Disability.

The report goes on. . . “What is most apparent in her educational history is the lack of academic progress over the years despite intervention. [The Student’s] academic learning has been very slow despite growth in social, adaptive, and functional skills.” (Ex. C)

Conclusion

Upon review I remand this to the CSE with instruction to audit related service activity for 2020-2021 & 2021-2022 SY’s, determine the extent that said related Services were not provided and to then develop a bank of Related Service hours to be utilized over the next two years during summers and school breaks. Audit to be complete by August 1, 2023. Paid by District at market rate upon invoice such rate to be determined by Implementation in consultation with the agency, providers and Parents.

Rate for Services In this type of case before me, there is a potential that the Parents will not be able to secure services in a timely manner by offering Related Service Authorization. If this ends up occurring, and the Parents cannot find a District provider, there are myriad variables that influence the market rate for enhanced rate services. (i.e. language of delivery, locale of delivery, characteristics of student, agency overhead, frequency of services, etc.) The prospect of developing a full record in each of the numerous “enhanced rate” cases is daunting and while possible, in the existing environment on Special Education litigation in New York City, an option has arisen that allows for flexibility and fairness while expeditiously ensuring the timely provision of services to the Students, that all agree, require such services. Over time, I have noticed that the District’s “Implementation Unit”, when given the opportunity to execute interim orders and pendency decisions, is adept at identifying providers without issue. In effect that unit is “making the market” for enhanced rate services. It is therefore ORDERED

For the District to reimburse/directly pay the Parent(s)/Private School for cost of tuition, and related services, at the Private School where they unilaterally placed the Student for the 2022-2023 SY together with reimbursement/direct pay for the cost of transportation to and from the Private School upon presentation of invoicing for reimbursement, and direct pay for remainder of the 2022-2023 SY.

For the District create a bank of compensatory education hours to be used over the next 2 (two) years upon completion of the Audit (as outlined above), and determination of rate by the Implementation Unit, the Agency, the providers and/or the Parents.

Dated: June 16, 2023

Martin J. Kehoe, III Esq. Impartial Hearing Officer

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.

Footnotes

[1] A hearing was held across the following dates: January 25, 2023; February 16, 2023; April 4, 2023; May 11, 2023; May 18, 2023; May 23, 2023; June 15, 2023.

[2] In the letter, the Parents’ representative wrote the following: In the absence of an appropriate IEP and placement for [the Student], [the Parent] has no other recourse but to enroll [the Student] at [the Private] School at the District’s expense. (Ex. B-3)

[3] 8 NYCRR 200.1(zz)(10) (7) 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.

[4] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).