New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 588993 NYC: 240103

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

Service District: REDACTED

Home District: REDACTED

Hearing Requested By: REDACTED

Date of Hearing: May 5, 2023 & May 11, 2023

Actual Record Close Date: June 9, 2023

Hearing Officer: Alena Weiserbs

NAMES AND TITLES OF PERSONS WHO APPEARED

AT THE MERITS HEARING ON MAY 5, 2023

For the Student:

REDACTED, Esq., Parent attorney

REDACTED, Parent Student

For the Department of Education:

REDACTED, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED AT THE MERITS HEARING ON REDACTED, 2023

For the Student:

REDACTED, Esq., Parent attorney

REDACTED, Tutor

For the Department of Education:

REDACTED Esq.

INTRODUCTION

On October 7, 2022, REDACTED (the “Parent”) filed a Due Process Complaint (“DPC”) on behalf of REDACTED (“Student”) through their attorney, REDACTED, Esq. of the Law Offices of REDACTED, PLLC (“Parent’s Attorney”) against the New York City Department of Education (“District”). The District was represented by REDACTED, Esq. I was appointed as the Impartial Hearing Officer (“IHO”) for DPC number 240103 on January 3, 2023.

The issues presented at this hearing are whether: (1) the District denied the Student a Free Appropriate Education (“FAPE”) for the twelve-month 2022-2023 school year; (2) I should order the District to directly fund and/or reimburse the tuition for the Student’s unilateral private placement at the REDACTED (“Private School”) for the 2022-2023 school year: (3) a ten-month school year placement is appropriate; (4) the District shall provide the Student with round trip limited time door-to-door transportation in a five point harness with a one-to-one aid to and from the Private School; and (5) the District shall provide compensatory education in the form of tutoring, Special Education Teacher Support Services (“SETSS”), physical therapy, occupational therapy or speech.

At the prehearing conference on January 12, 2023, the parties represented that they thought this matter could be settled and that the Committee on Special Education (“CSE”) deferred the Student to the Private School she attends (T 6). A status conference was held on February 15, 2023, whereby the District represented that they were paying for the Private School going forward and were working towards settling retroactive payments to the Parent for the Private School’s tuition (T 15). At the March 16, 2023, status conference, the District represented it was the District’s “intention for the Parent to be reimbursed for everything that they have paid to the [Private School] at this point”, however, the District was not sure that the Comptroller would approve this (T 24). The due process hearing (“DPH”) originally scheduled on March 31, 2023, was rescheduled to April 18, 2023, to provide more time to settle this case. The DPH was rescheduled again to May 5, 2023, due to Parent’s medical procedure. This matter, not having been resolved, went to hearing on May 5, 2023, and on May 11, 2023.

At the hearing, the District provided an opening statement, whereby the District stated that it was not presenting witnesses but requested that I deny the Parent’s request for tutoring (See transcript, p. T 34-35) ^[1]. The Parent’s attorney gave an opening statement, requesting that I order compensatory education for the summer of 2022 when the Student “missed out on both occupational therapy and academic instruction” and reimburse the Parent for her out-of-pocket tutoring expenses (T 35-37). The District’s Exhibits “1” through “5” were admitted into evidence, without objection from the Parent (T 37-38). Parent’s Exhibits “A” through “R” were admitted into evidence without objection from the District (T 39-40). The Parent testified at the hearing on May 5, 2023 (T 43-84), REDACTED (“Tutor”) testified through affidavit at the hearing on May 11, 2023 (P Q; T 98-103), and REDACTED (“Director”) testified through affidavit (P R). The Parent gave a closing statement requesting $8,000 in tuition reimbursement, occupational therapy sessions and reimbursement for three hours per week of tutoring paid at a rate of $125 per week during the 2022-2023 school year (T 103-106). The District gave a closing statement, requesting that if I were to award compensatory education, that it be limited to the actual number of services that the Student would have received this past summer (T 106).

Although only portions of the evidence are referenced herein, the testimony and documents were reviewed in full.

JURISDICTION

A decision in this matter is rendered pursuant to the Individual with Disabilities Education Act (“IDEA”), 20 U.S.C. § 300 et seq., and the New York Education Law, Educ. Law § 4404 et seq., its implementing regulations, 8 N.Y.C.R.R. § 200.5 et seq. and § 504 of the Rehabilitation Act of 1973.

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is a REDACTED -year old female, attending the Private School at the beginning of the 2022-2023 school year (P A; T 43). She has been classified with Other Health Impairment (DOE 1 & P C1; T 35). Her classification is not in dispute. REDACTED. … Her full-scale IQ is in the border line range. … She has difficulty with working memory, processing speed, and organization” (T 35).

The Student’s neuropsychologist, who evaluated her in October of 2022, recommended that due to her “continued difficulties in the school setting, as well as [her] history of cognitive, emotional, social, and behavioral difficulties” that she be “placed in a small, structured classes with students who are at a similar level of intellectual functioning” without behavioral issues with “individualized instruction taught by specially trained teachers” with as much organization as possible and repetition along with counseling (F9-10).

The Parent placed the Student at the Private School because she had a very difficult year at her prior school during the 2021-2022 school year (T 48). The Student is well below grade level (P C 21; T36). Her instructional and functional reading and math level is at a fifth level (Id). The Parent notified the District in writing of the placement (T 48). The Parent attended the October 5, 2021, and the February 7, 2023 IEP meetings (DOE 1-31; P C 23).

Parent and the District are now in agreement that the Private School is an appropriate placement, and the District recommended a special class at the NYSED-approved non-public day school she currently attends on her Individualized Education Program (“IEP”) dated February 7, 2023 (P C 17).

The District however had not developed an IEP for the 2022-2023 school year prior to the February 7, 2023, IEP. The Student’s prior October 5, 2021 IEP recommended a twelve-month placement in a 12:1 special class with adapted physical education, counseling in a group of three once per week for 40 minutes, occupational therapy in a group of three, twice per week, physical therapy twice per week in a group of three for 40 minutes, and speech-language therapy once per week for 40 minutes in a group of three (DOE 1 23-24 & 30). The District did not provide the Student with a placement for the summer of 2022-2023 pursuant to her October 5, 2021 IEP, which required a twelve-month placement (DOE 1-30; P A5;T 75).

The Student IEPs have always recommended a twelve-month program except for the most recent February 7, 2023 IEP (P C; T63). The Parent believes that a twelve month program is necessary to prevent regression because the Student has memory and retention issues as well physical issues (T 45-46 & 63). The Parent emphasized that it is important for the Student’s occupational and physical therapy to continue through the summer due to her cerebral palsy and her congenital foot deformity (T45). The Private School offers a summer camp where they have physical activities, occupational therapy, physical therapy, and periods of math, but the summer program is mainly non-academic (T 63).

During the summer of 2022, the Student required corrective surgery for her feet and the parent tried to obtain in home instruction and related services in the summer (T 47-48). The Parent submitted paperwork to the District for home instruction, but the District did not respond, and the Student did not receive home instruction or related services for the summer of 2022 (T 47-48). The CSE scheduled in person re-evaluations for the Student, but due to her physical limitations from surgery, the Parent requested virtual evaluations to accommodate her due to her recent REDACTED, which the CSE did not schedule (P A 6).

By way of relief, The Parents seeks (1) reimbursement of the tuition and/or direct payment for the Private School tuition she paid prior to the District’s approval of the Private School as her recommended placement; (2) a twelve-month placement; (3) compensatory education for the summer of 2022 when related services and instruction ceased; and (4) that her transportation in an alternative vehicle with a bus matron continues because she is unable to ride on a school bus due to her disability (P A; T 50).

To date, the District paid the portion of tuition at the Private School (which is a NYSED approved non-public school) after the District approved it as the Student’s placement. However, the District has not reimbursed the Parent for the tuition she paid to the Private School for the period prior to the District recommending the Private School in its February 7, 2023 IEP (T 65). The District’s intention was to reimburse the Parent for the tuition she paid to the Private School, prior to the February 7, 2023 IEP placement, but that has not yet happened to date (T 24).

FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECISION

The IDEA provides that children with disabilities are entitled to a FAPE (20 U.S.C. § 1400 [d][1][A]). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (34 C.F.R. §300.13). Specifically-designed instruction must meet the child’s unique needs in all aspects of their education during classroom instruction and prepare them for further education, employment, and independent living. See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 188, 206-7 (1982); U.S.C. § 1400[d][1][A]-[B].

A district must pay for the cost of a student’s tuition at a private school if the three prongs of the Burlington/Carter test are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).

PRONG ONE: DISTRICT’S BURDEN

A school district offers 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 the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 1982). 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.” Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. 386 2017).

Decisions of impartial hearing officers must be made on substantive grounds, based on a determination whether a student received a FAPE, 8 NYCRR § 200.5(j)(4)(i), except as follows:

In matters alleging a procedural violation, an impartial hearing officer may find that a student did not receive a free appropriate public education only if the procedural inadequacies impeded the student’s right to a free appropriate public education, significantly impeded the parent’s opportunity to participate in the decision-making process regarding the provision of a free appropriate public education to the parent’s child, or caused a deprivation of educational benefits. Nothing in this paragraph shall be construed to preclude an impartial hearing officer from ordering a school district to comply with procedural requirements under this Part and Part 201 of this Title 8 NYCRR § 200.5[j][4][ii]. This means that local educational agencies (school districts) are obligated to implement “extensive procedural requirements to protect the rights of the parents, guardians, and the child, including the right to be notified, inter alia, of a change in the child’s educational placement.” Rowley at 183. 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 (NYS Educ. Law § 4404[1][c]). To meet its burden of proof, the school district must demonstrate that to provide the student with a FAPE, he or she will derive an educational benefit from that instruction to “achieve passing marks and advance from grade to grade” to “enable the [student] to be involved in and make progress in the general education curriculum.” Rowley, 458 U.S. 204; and Endrew F., 580 U.S. 386, 401 [2017]). This personalized instruction “must be appropriately ambitious in light of [the student’s] circumstances.” Id. at 1000. In addition to evaluating the uniqueness of an individual student, the IEP must open the door of public education to a disabled child in a meaningful way such that it is likely to produce progress, “not regression, or only “trivial advancement.” Id.; see also Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir. 2005); Walczak, 142 F.3d 119, 130 (2d Cir. 1998); P. v. Newington Bd. Of Educ., 546 F.3d 111, 119 (2d Cir. 2008).

A board of education may be required to pay for educational services obtained for a child by the child’s parent, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent’s claim. Burlington, 471 U.S. 359 (1985); Florence, 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, Board of Educ. Of Hyde Park Cent. School Dist. V. Frank G.,2007 WL 2982269 (Oct. 15, 2007).

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 show the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. Endrew F., 580 U.S. 386 (2017).

In addition, parents are entitled to a presumption as to the truth of the asserted facts underlying their claims that are contained in the documentary evidence and testimony, to the extent they are credible and not contradicted by the hearing record. See generally Thomson v. Wooster, 114 U.S. 104, 111 (1885) (explaining in default, matters alleged with sufficient certainty taken as true); Cotton v. Slone, 4 F.3d 176, 181 (2d Cir 1993) (stating factual allegations taken as true in light of default judgment and absence of findings concerning liability); Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990) (stating consequence of default judgment is factual allegations, except those relating to damages, are taken as true).

The Parent raised multiple challenges to the CSE program and placement recommendation to which the District offered absolutely no explanation for, let alone a cogent and responsive explanation (P A). The District, did not present on Prong One, effectively conceding that it failed to provide the Student with a FAPE (T 34). The DOE denied the Student a FAPE when it did not develop a new IEP on or before 10/4/2022, when the previous IEP expired. A local educational agency (“LEA”) is required to review a child’s IEP “periodically, but not less than annually.” 34 C.F.R. § 300.324(b)(1)(i). Additionally, the LEA is required to have an IEP in effect for every student with a disability “[a]t the beginning of each school year.” 34 C.F.R. § 300.323(a).

In this case, the DOE did not review the IEP at the one year mark, and then did not offer the Student a placement for the 2022-2023 extended school year. The District also did not provide the Student with a twelve-month placement pursuant to the October 5, 2021 IEP during the summer of 2022 or provide home instruction to the Student who REDACTED.

The District also failed to carry its burden of showing that the Student did not require 12-month services in order to receive a FAPE in its February 7, 2023 IEP. According to the IDEA’s regulations, ESY services are: special education and related services that – (1) 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; and (iii) At no cost to the parents of the child; and (2) Meet the standards of the SEA. 34 C.F.R. § 300.106. ESY services must be provided “only if a child’s IEP Team determines, on an individual basis, in accordance with §§ 300.320 through 300.324, that the services are necessary for the provision of FAPE to the child.” Id. In New York, “[g]enerally, a student is eligible for a 12-month school year service or program ‘when the period of review or reteaching required to recoup the skill or knowledge level attained by the end of the prior school year is beyond the time ordinarily reserved for that purpose at the beginning of the school year.’” Application of a Student with a Disability, Appeal No. 22-112 (citing “Extended School Year Programs and Services Questions and Answers,” VESID Mem. (Feb. 2006), available at http://www.p12.nysed.gov/specialed/applications/ESY/2014-QA.pdf). While a student’s needs can change over the course of the school year and from the issuance of the last IEP, the February 7, 2023 IEP did not discuss why the Student’s placement had changed from a twelve-month to a ten month since the issuance of the October 5, 2021 IEP. Without consideration and/or explanation, the Student’s placement should not have been changed from a twelve-month to a ten month, especially since the Student is three years behind and is prone to regression without a twelve-month program (T 36, 46, 58-59 & 61).

As such, I find that the District did not offer the Student FAPE for the 2022-2023 extended school year, and as such, the District failed to meet its burden of production and of persuasion as to the first of the three Burlington/Carter criteria for tuition reimbursement. I also find that the Student requires a twelve-month placement to avoid regression to provide her with a FAPE.

PRONG II: PARENT’S BURDEN

The Parent has the burden of proving that the unilateral placement was appropriate. To meet this burden, the Parent 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.” Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007). However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.” Frank G., 459 F.3d 356, 364. The private school placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. 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 is whether “[the] unilateral private placement ... provides educational instruction specifically designed to meet the unique needs of a handicapped child” (Gagliardo, 489 F.3d at 115):

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. Gagliardo. 489 F.3d at 112 (quoting Frank G , 459 F.3d at 364-65).

The Parent testified, called witnesses and submitted documentary evidence in support of her position that the Private School placement was appropriate (P A, C, F, I, J, K, L, M, N, O, P, & R). The credible testimony of the Parent and the Director established that the Private School placement was appropriate and has been providing the Student with instruction that is specifically designed to meet the Student’s unique special education needs, supported by such services that are necessary to permit her to benefit from instruction (R T 43-84). Further, the District’s February 7, 2023 recommendation of the Private School as the NYSED approved public school placement, is an acknowledgment that the Student’s placement is appropriate.

The Student is making slow and steady progress and enjoys learning at the Private School (T 49). When she is struggling, the Private School provides the necessary support and instruction to allow her to move forward (R3; T 49). Her confidence and behavior are improving (R3). Although the Private School program is for ten-months, the Private School has a camp which offers some academics as well as the physical therapy and occupational therapy she requires to prevent regression (T 63). The Student requires a twelve-month program and I find that the Private School’s camp is appropriate so long as the Student received occupational and physical therapy as well as a daily period of academics. If the District is unable to provide an appropriate extended year placement for the summer of 2023, then the District must fund the Private School’s summer program. I find that it was inappropriate for the District to reduce the Student’s program from a twelve-month to a ten-month program given that the Student is prone to regression and that the IEP cut the twelve-month program without consideration, explanation or evaluation.

I find, based on the above evidence and testimony, that the Parent has met the second of the three Burlington/Carter criteria for tuition reimbursement because the Private School addresses the Student’s behavior, language, and academic challenges with interventions in a highly-structured supportive environment with individualized instruction to enable the Student to make meaningful academic, behavioral and physical progress and benefit from the program in light of her disability.

PRONG III : EQUITABLE CONSIDERATIONS

Equitable considerations are relevant in determining relief “because the authority to grant reimbursement [under the IDEA] is discretionary.” Frank G. v. Bd. of Educ., 459 F.3d at 363-64 (quoting, Burlington, 471 U.S. at 374). The determination of whether equitable factors support a parent’s claim for tuition reimbursement hinges, in large part, on the parent’s cooperation with the CSE. Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, 6 (S.D.N.Y. Nov. 20, 2007). Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the DOE. D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).

The District did not raise any issues that would limit or preclude tuition reimbursement. In fact, it did not oppose tuition reimbursement on equitable grounds. Moreover, there is nothing in the record reflecting that the Parent did not cooperate with the CSE. The Parent attended the IEP meetings and provided the District with timely written notices in response to the District’s placements and of her intent to unilaterally place the Student at the Private School and seek tuition reimbursement (DOE 1; P B & C). I find that there are no equitable issues that would preclude or limit tuition reimbursement because the Parent cooperated with the District. The Parent has therefore met the third of the three Burlington/Carter criteria for tuition reimbursement. Having met all three of the Burlington/Carter criteria, the Parent is entitled to reimbursement and direct funding for the cost of the Student’s 2022-2023 school year Private School placement.

The cost of the Private School placement is $40,354.00, of which the Parent paid $8,000 (P G & H; T 62-63). The signed contract is included in the Hearing Record (Id.) and need not be resubmitted prior reimbursement and/or direct funding to the School.

COMPENSATORY SERVICES

The Parent requests compensatory education for the District’s failure to provide the Student with twelve-month placement during the 2022-2023 school year, resulting in a FAPE denial. 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 (see P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008]. Compensatory education may be awarded to students under the age of twenty-one (Student X. v. New York City Dep't of Educ., 2008 WL 4890440, [E.D.N.Y. Oct. 30, 2008]. An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period 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. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d at 123.

There are generally two approaches to creating a compensatory education award. The Third Circuit follows a “quantitative” approach which focuses remediation on how many hours the student was denied FAPE and providing an award on an hour-to-hour basis. See, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996). The D.C. Circuit and the Sixth Circuit take a “qualitative” approach which recommends an equitable approach considering both the number of hours the child was denied FAPE as well as other factors. See, e.g., Reid, 401 F.3d at 518, 524.

The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion,” so long as “the relief is [] appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 (2d Cir. 2016); see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 (E.D.N.Y 2008) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated,” and awarding compensatory relief equal to the amount of time the student was deprived of services).

In the present case, the Parent hired a tutor for the services that the Student missed in the summer, and also help her progress at the Private School (P Q; T 52-55). The Parent hired a college graduate until December of 2022 and stopped the tutoring until she was recently able to afford more tutoring sessions with the Tutor in April of 2023 (T 53 & 99).

The Parent seeks that District compensate the Student on a quantitative basis for the occupational therapy missed during the summer of 2022 pursuant to the October 5, 2021 IEP, which equals twelve, forty-minutes session of occupational therapy (DOE 1;T52-53). Because the District did not elaborate as to its position regarding a potential compensatory education award, I find that the Student is entitled to receive twelve, forty-minute sessions to put her back in the place she would have been if the District had provided the Student with occupation therapy during the summer of 2022.

The Student also did not receive adapted physical education three periods per week; a special class thirty-five periods per week, counseling one period per week; physical therapy two periods per week for forty-minutes; and speech-language therapy once per week for forty-minutes per week during the summer of 2022 (DOE 1 23-24). I find that the District shall fund on a quantitative basis twelve, forty-minute counseling sessions; twelve, forty-minute sessions of physical therapy; six, forty-minutes sessions of speech therapy; and eighteen forty-minute sessions of adaptive physical education.

The Parent also seeks compensation in the form of reimbursement for the cost of a tutor in the amount of $125 for three hour sessions per week (T 55 & 59). I determine that the District shall fund on a qualitative basis sixty, one hour sessions of tutoring as compensation for the thirty-five periods of special core classes that the Student missed for the six weeks in the summer of 2022. I find that two hours per day of individual compensatory instruction for every day the District failed to provide the Student with instruction for the six week summer placement (along with related services and adaptive physical education) will put the Student in the place she would have been, but for the District’s FAPE denial.

I determined that that the compensatory relief be provided on a qualitative and on a quantitative basis to put the Student in the position she would have been in, but for the FAPE denial. For the tutoring, I applied a qualitative approach rather than a quantitative one because the compensatory relief sought by the Parent was not of a quantitative nature and has already for the most part been provided to the Student. I considered using a quantitative basis for tutoring, but determined that thirty-five hours per week of individual tutoring for a six week period would be an excessive amount of tutoring to compensate the Student for the District’s failure to provide the summer-time instruction. Such a quantitative award would provide the Student with a greater amount of relief than was caused by the District’s FAPE denial. I find that two hours of individualized tutoring per day is a much more reasonable amount of compensatory education for the six weeks of services. If the parties had provided me with more concrete and specific reasons for compensatory relief, I would have considered them.

In this case, although the District denied the Student a FAPE by failing to develop an IEP and by failing to provide and educational program during the summer of 2022, I find that the award of tuition and providing the Student with the compensatory instruction and related services for failing to provide the Student with a six week summer placement or home instruction is appropriate to remedy the violation, and that no additional compensatory services are needed. Given the facts and evidence before me, I believe that using a quantitative approach for the related services and adaptive physical education missed, and a qualitative approach for the remedy the Parent choose for the Student, is the fairest remedy to put the Student in the position she would have been in, but for the District’s FAPE denial.

I decline to award further compensatory services for Parent’s request for ongoing tutoring. Although, it is true that tutoring would assist the Student to make more progress at the Private School, a student with a disability is not entitled to every educational or related service that might assist them in their education. See, e.g., Board of Education v. Rowley, 458 U.S. 176, 206, 102 S. Ct. 3034 (1982) (deaf student not entitled to sign-language interpreter where student was receiving adequate education). Thus, the DOE is not obligated to “furnish every special service necessary to maximize each handicapped child’s potential” (M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 224 (2d Cir.2012)), or to provide “everything that might be thought desirable by loving parents.” Walczak v. Florida Union Free School Dist., 142 F.3d l19, 132 (2d Cir. 1998). The District is now providing the Student with an appropriate program. She is making progress at the Private School and additional tutoring should not be added as part of the placement. In addition, there is no evidence of an ongoing FAPE denial in the record to award more compensatory relief than ordered herein.

TRANSPORTATION

The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ … even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport” Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 [11th Cir. 1997] (internal citation omitted). Transportation may be deemed necessary “if in its absence a disabled child in Current school would be denied ‘a genuine opportunity for equitable participation in [a special education program]’, . . . or special education program benefits “comparable in quality, scope, and opportunity for participation . . . [to those provided for] students enrolled in public schools’” Donald B., 117 F.3d at 1375 (internal citations omitted). In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” Education Law §§ 4401[1], 4402[4][a]; see also Education Law § 4401(2); 8 NYCRR § 200.1[ww]). I find the Private School to be the appropriate placement, the District shall continue to provide transportation services for the Student to and from the Private School as provided in the February 7, 2023 IEP.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

(1) The Parent’s claim for tuition reimbursement and direct funding of the Student’s unilateral placement at the Private School is GRANTED for the 2022-2023: The District shall reimburse the Parent in the amount of eight thousand dollars ($8,000.00) and directly fund the Private School in the amount of thirty-seven thousand and fifty-nine dollars ($37,059.00) to the extent that the balance to the Private School has not been paid. The District shall make these payments within thirty days;

(2) The District shall provide a summer placement for the Student for the summer of 2023, which includes counseling, occupational therapy and speech-language therapy as recommended in her February 7, 2023 IEP, and if the District does not provide an appropriate placement by July 1, 2023, shall fund the Private School’s summer camp from July through August of 2023;

(3) The District shall provide special transportation to and from the Private School in an air-conditioned limited time travel alternative vehicle with a bus matron, which has a five point safety harness for the Student;

(4) The District shall compensate the Student by: a) Reimbursing and/or funding a bank of 60 one hour sessions of tutoring payable at a reasonable rate; b) Providing and/or funding twelve, forty-minutes sessions of counseling; c) Providing and/or funding twelve, forty-minutes sessions of physical therapy; d) Providing and/or funding six, forty-minute sessions of speech-language therapy; e) Providing and/or funding twelve, forty minute sessions of occupational therapy; f) Providing Related Service Authorizations for the above services within fifteen days of this Order; and/or fund these services at a reasonable rate; and g) The District shall pay all invoices within thirty days of submission.

Dated: June 16, 2023

Alena Weiserbs, Impartial Hearing Officer

DISTRICT EVIDENCE

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PARENT EVIDENCE

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NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or or the Public School District has 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 of with the Office of State Review of the State Education 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 the Part 279 and model forms are available at http://www.sro.nysed.gov.

Footnotes

[1] The transcript shall be referred to as “T” followed by page numbers.