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CASE NUMBER: 589460 - NYC: 240510
FINDINGS OF FACT AND DECISION
Case Number: 240510
Student’s Name: [REDACTED]
School District: N.Y.C. Dept. of Ed., REDACTED Impartial Hearing Officer: Roberta Wolf
Date of Filing: 10/07/2022
Hearing Requested by: Parent
Date of Hearing: 12/06/2022
Record Close Date: 12/21/2022
Date of Decision: 12/21/2022
NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 6, 2022:
For the Department of Education (DOE):
[REDACTED], Representative
For the Student:
[REDACTED], Representative
[REDACTED], Parent
BACKGROUND
On October 7, 2022, the Parent, by and through her attorney’s law firm, filed a due process complaint (DPC) against DOE on behalf of the Student, under Case No. 240510, pursuant to the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. § 1415(f)) and Section 4404(1) of the New York State Education Law (Education Law).[1]
In the DPC, the Parent asserts that DOE failed to provide the Student with a free appropriate public education (FAPE) for the 2019-2020, 2020-2021, and 2021-2022 school years when the DOE’s Committee on Special Education (CSE) failed to provide special education services mandated by the Student’s Individualized Education Programs (IEPs) and additional necessary services for those school years. The Parent thereafter unilaterally placed the Student in the Private School for the 2021-2022 school year, and now seeks tuition funding; compensatory relief (reimbursement and funding for Applied Behavioral Analysis (ABA) therapy, and enhanced rates for occupational therapy (OT) and speech-language (s/l) therapy services); transportation; and independent neuropsychological, OT and s/l therapy evaluations (IEEs) conducted by providers of the Parent’s choice and paid by DOE at market rates.[2]
I was appointed impartial hearing officer (IHO) on November 2, 2022; conducted a prehearing conference on November 9, 2022; and adjudicated a due process hearing on December 6, 2022. At the hearing, all exhibits were admitted into evidence without objection, a list of which is appended to this Order.
DOE did not hold a resolution meeting or file a due process response. At the hearing, DOE did not contest the following claims: For the October 29, 2020 IEP, it did not regularly provide OT (mandated), a paraprofessional, or a behavior intervention plan (BIP), nor did it conduct any evaluations (aside from OT) prior to creating the IEP.[3] Nevertheless, DOE asserted that it provided the Student with a FAPE for the three school years at issue because the 2019 and 2020 IEPs showed progress by the Student,[4] rendering compensatory relief and tuition funding unwarranted.[5] DOE further argued that the undersigned IHO should order no IEEs because the Parent never articulated a specific disagreement with a DOE evaluation. DOE presented no affidavits but offered documents (CSE meeting notices sent to the Parent; an OT evaluation dated October 24, 2019; prior written notice dated November 17, 2019; two special education student information system (SESIS) logs documenting correspondence with the Parent from January 4, 2020, to August 18, 2021; and the Student’s October 29, 2020, IEP).
The Parent argued that: (1) DOE could not, as a matter of law, establish that it provided a FAPE to the Student without witness testimony to explain the appropriateness of the IEPs; (2) DOE failed to carry its burden to establish an appropriate compensatory remedy when it conceded, for example, that it did not provide mandated IEP services and when the Parent provided evidence of regression; and (3) the Parent could not disagree with DOE evaluations because DOE never administered any in the first instance. The Parent’s case consisted of testimony (live and affidavit form) from the Parent and the Head Teacher of the Student’s Private School, and documents placed in evidence.
FINDINGS OF FACT
The Student is [REDACTED] years old and his eligibility for special education supports and services is not in dispute. He is classified with “Autism” and presents with cognitive, academic, and language delays, and also a low attention span that hinders his ability to learn in a large-group setting.[6] According to the Student’s most recent, October 29, 2020 IEP,[7] DOE assessed his reading as below first-grade level and his math performance at the Kindergarten level.[8] The Student also had writing deficits that were directly tied to his reading challenges.[9] The Student could not stay on-task without constant prompting,[10] but DOE did not provide for a BIP or any positive behavioral interventions.[11] The Student previously responded positively to ABA (administered 10-15 hours per week) and s/l therapy provided through DOE’s Early Intervention Program.[12] Some sections of the IEP recommended a 12:1 special class for English/Language Arts (ELA, 10 periods), Math (10 periods), Social Studies (two periods), and Sciences (three periods); OT (two individual 30-minute weekly sessions), and s/l therapy (one individual session and two group 30-minute weekly sessions), administered over a 12-month school year.[13] However, other sections of the 2020 IEP recommended a 12:1:1 program (i.e., the addition of a paraprofessional).[14] The only attendees at the CSE meeting were the Student’s teacher and the Parent.[15] The Student struggled in all areas of study[16] and never received OT services consistently.[17] Comparing the 2020 IEP to the Student’s September 5, 2019, IEP, DOE previously provided for special transportation on the 2019 IEP but removed it on the 2020 IEP.[18] The 2019 IEP also mandated a 12:1:1 special class after concluding that a 12:1 teacher-to-student ratio provided the Student with insufficient support.[19] Nevertheless, DOE later modified the 2019 IEP to remove the paraprofessional (i.e., a 12:1 special class), reduce the number and length of support sessions for ELA, Math, and Sciences, and remove the s/l therapy.[20] The Student made no progress and noticeably regressed.[21]
Ultimately, on August 27, 2021, the Parent notified DOE that after two school years of insufficient supports, reduced or unimplemented services, repeated efforts to correct IEPs with missing supports, the removal of the paraprofessional, and the Student’s documented academic and behavioral struggles and regression, she would unilaterally place the Student in the Private School for the 2021-2022 school year.[22] The Parent also sought out an ABA therapist to provide services for four months, paid for in part by her insurance.[23] DOE did not substantively respond to the Parent’s notice.[24]
The Student’s Private School caters to students with special education needs (including those with Autism), that present with language-based learning disabilities, academic deficits, and deficits with adaptive daily living skills.[25] It created and implemented an individualized plan for the Student after interviewing the Parent, conducting formal and informal assessments, and reviewing the Student’s academic and medical history.[26] The Student’s classroom consisted of 12 students, two teachers (one head, one assistant) and three paraprofessionals.[27] Head teachers held Master’s Degrees, assistant teachers held at least a Bachelor’s Degree, paraprofessionals held at least high school diplomas, and all teaching staff completed ongoing training and professional development.[28] All s/l and OT therapists were licensed by NY State, and counselors were either licensed psychologists or social workers.[29] Comprehensive progress reports showed the Student’s measurable improvement with ELA, writing, math, geography, speech and language (receptive and expressive language), and social and OT skills.[30]
ANALYSIS
The IDEA and the New York Education Law require a school district to offer a FAPE to each child with an eligible disability residing in its district who requires special education programs or services.[31] A FAPE is offered to a student when (a) the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits; and (b) the DOE complies with the procedural requirements set forth in the IDEA.[32] For a procedural violation, an impartial hearing officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student’s right to a FAPE,
(b) significantly impeded the parent’s 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.[33] In general, an impartial hearing officer’s decision must be made on substantive grounds as to whether the student received a FAPE.[34] The DOE may be required to pay for educational services obtained for a student by his parent if a preponderance of the evidence shows: (a) the services offered by the DOE were inadequate or inappropriate (e.g., the denial of a FAPE); (b) the services selected by the parent were appropriate; and (c) equitable considerations support the parent’s claim.[35]
Prong 1 – FAPE Denied to the Student
A school district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.”[36] An IEP must include a statement of the student’s present levels of academic achievement and functional performance; annual goals designed to meet the student’s needs resulting from his disability and that enable him to make progress in the general education curriculum; and provide appropriate special education and services.[37] “A reviewing court may fairly expect [DOE] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of [his] circumstances.”[38] In this case, DOE provided no explanation for how the 2019 and 2020 IEPs were reasonably calculated to enable the Student to make appropriate progress in light of his specific circumstances. DOE acknowledged in the 2019 IEP the insufficiency of a 12:1 classroom, but nevertheless modified it to provide that student-to-teacher ratio. DOE also reduced support services, which together with the canceled paraprofessional, resulted in the Student’s regression. The 2020 IEP contradictorily recommended both a 12:1 and a 12:1:1 classroom and also OT, but DOE conceded at the hearing that it provided neither a paraprofessional nor OT, nor did it conduct any evaluations before creating the IEP. Although DOE argued that it provided the Student with a FAPE for both school years because the Student showed signs of progress,[39] the undersigned IHO disagrees. On the contrary, the sections of the IEPs on which DOE relies repeatedly refer to the Student’s insufficient and inconsistent progress that falls short of IEP goals.[40]
Although I do not find, as a matter of law, that an IEP can never establish that it was reasonably calculated to enable a student to receive educational benefits, I do find that DOE failed to establish the same in this case. Because DOE provided no explanation, let alone a cogent and responsive one, for how the 2019 and 2020 IEPs were reasonably calculated to enable the Student to make appropriate progress in light of his specific circumstances, I find that DOE did not offer the Student a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years.
Prong 2 – Appropriateness of Unilateral Placement Established
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 seeking tuition reimbursement for a unilateral placement in a private school setting has the burden of persuasion and burden of production on the appropriateness of such placement. A “private placement is only appropriate if it provides ‘education instruction specifically designed to meet the unique needs of a child.’”[41] The Parent rejected the recommendations of the CSE, as memorialized in the October 29, 2020 IEP, and unilaterally placed the Student in the Private School. The Parent provided the Student’s class schedule, test results, progress reports, goals (for academic, behavioral, and various therapies), the Parent’s signed enrollment contract, and the testimony of the Student’s Head Teacher of the Private School. The Private School provides full-time special education for children with learning disabilities like the Student, including Autism, taught in small class sizes by instructors with Master’s or Bachelor’s degrees and with prior teaching experience. The Student progressed in all areas of study as shown by detailed progress reports and the affidavit of the Student’s Head Teacher. I find the Head Teacher’s testimony to be comprehensive, consistent, and credible. I further find that the Parent established that the placement of the Student in the Private School provides educational instruction specially designed to meet his unique needs, supported by such services as are necessary to permit him to benefit from that instruction.
Prong 3 – Equitable Considerations Favor the Parent
Although the hearing officer may deny the Parent tuition reimbursement for: (a) unreasonably rejecting the DOE’s proposed changes to the IEP, or otherwise behaving unreasonably; (b) failing to make the student available for an evaluation; or (c) failing to timely notify the DOE of her intent to reject the proposed IEP and enroll the student in a private school at public expense,[42] no evidence supports such a finding in this case. The DOE made no claim and provided no evidence that the Parent behaved unreasonably or failed to make the Student available for an evaluation, nor did DOE object to the Parent’s proffer of a “Ten Day Notice of Intent” to reject the 2020 IEP, unilaterally place the Student in the Private School, and seek funding and reimbursement. In contrast, DOE failed to adhere to two procedural requirements necessary once a parent files a DPC: namely, conducting a resolution meeting[43] and filing a due process response.[44]
The Parent’s enrollment contract shows that the Private School charged $78,775.00 for the 10-month, 2021-2022 school year.[45] The Parent’s tax return and affidavit establish that the unilateral tuition costs far exceed her income.[46] I find that the equities favor the Parent and warrant tuition funding forthwith.
Compensatory Relief Warranted in Part
Compensatory education and services are equitable remedies tailored to meet the unique circumstances of each case.[47] An award must be designed to “make up” for past denials of FAPE and place the student in the position they would have been had the district complied with its obligations under the IDEA.[48] “[T]he inquiry must be fact-specific, and [in order] 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.”[49] The compensation may take the form of supplemental special education or in related services, with the goal of fashioning appropriate relief for a denial of a FAPE.[50] It is calculated by either a “quantitative” approach (provided equal to the period of the FAPE deprivation) or a “qualitative” approach (provided as needed to address the student’s educational deficits resulting from the FAPE deprivation). Courts have noted that when the qualitative analysis is available, it can be the more “flexible approach, rather than a rote hour-by-hour compensation award, [and thu]s more likely to address [the student’s] educational problems successfully.”[51] In New York, when there is a lack of FAPE and the parent seeks a compensation award, the burden lies with DOE 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.”[52] However even where DOE fails to offer its “position regarding the appropriate compensatory education remedy... an outright default judgment awarding compensatory education... and all of the relief requested without question... is a disfavored outcome [including] where the district’s conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious[.]”[53] The specific award sought, therefore, must be evaluated, because (a) “services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity[;]”[54] and (b) “[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education.”[55] Finally, a full award may be tempered when a student “did make some advancement over the course of [their] time in... school, even though [they] were not presented with what [they] were due under [the] IDEA.”[56]
Compensatory Education for OT Granted The Parent requests a one-to-one replacement for OT services not provided by DOE, specifically two, 30-minute, 1:1 sessions per week for 28 weeks, or 28 hours. As previously stated, DOE did not contest that it failed to provide this mandated service and provided no alternative remedy. According to the Student’s June 17, 2022, progress report at the Private School, the Student received two, 30-minute dyad sessions per week, both pull-out sessions (as compared to one push-in and one pull-out session for the previous semester).[57] I find that the second-semester change to two pull-out sessions reflects the Student’s need for additional OT and warrants compensatory education. I further find that 28 hours of OT equates to only about one 30-minute session per week for the 12-month school year, which is reasonable and of likely benefit to the Student.
Compensatory Education for S/L Therapy Denied For s/l therapy, the Parent requests a one-to-one replacement for 16, 30-minute individual sessions, or eight hours, that DOE removed from the Student’s 2019 IEP when it modified it on April 17, 2020.[58] Although DOE also removed two weekly sessions of group s/l therapy,[59] the Parent does not seek compensation for those sessions. Again, according to the Student’s progress reports at the Private School, he received two, 30-minute dyad sessions per week (typically pull-out, although occasionally push-in), and a weekly Social Skills class co-led by a psychologist, in which he demonstrated notable progress.[60] Nevertheless, here, I deny the Parent’s request for compensatory education. In doing so, I note that DOE fully reinstated the Student’s s/l therapy on the 2020 IEP, both individual and group sessions,[61] but the Student did not use those sessions.[62] According to DOE’s SESIS log, at least 16 entries pertained to the Student’s absences for s/l therapy, and some of those entries referenced entire weeks of absences.[63] As a result, I do not find that equities favor the Parent and the requested relief is denied.
Compensatory Relief for ABA Therapy Granted in Part To compensate for a lack of FAPE during the 2019-2020 and 2020-2021 school years, the Parent requests reimbursement for co-pays and services not paid by insurance in the amount of $1,734.70, which covers 48 four-hour ABA sessions for the Student, three parent-training sessions, and two supervisory sessions of the therapist, all administered between February 5, 2021, and June 21, 2021.[64] The Parent also asks for an additional year of ABA funding of approximately 1300 hours to counteract any residual regression caused by the lack of FAPE as follows: 20 hours per week of direct after-school supervision (i.e., four-hour sessions five times per week); two hours per week of case supervision; one hour per week of parent training; and two hours per week for behavioral treatment with modification, with reassessment after every six hours).[65] The Parent offers a report from the ABA provider dated July 21, 2021, recommending this treatment plan.[66]
The courts have recognized that a home-based ABA program is primarily to generalize skills outside the classroom, and while that undoubtedly provides a benefit to a disabled student, the development of non-educational skills is not by itself required by the IDEA.[67] If, however, the “student’s difficulty in generalizing skills prevents [the]m from making [classroom] progress required under the IDEA[,]”[68] or the “difficulty generalizing skills [is] so severe that it prevents [the student] from receiving any educational benefit[,]”[69] then the district may properly be ordered to provide ABA instruction and BCBA supervision.
On this record, I do not find that the Student’s difficulty generalizing skills is so severe that it prevents him from receiving any educational benefit. On the contrary, progress reports from the Private School describe the Student’s consistent improvement in nearly all academic subjects, and also his overall growth in the areas of cooperation, collaboration, attentiveness, independence, and eagerness to learn. The ABA report pre-dates the Student’s matriculation at the Private School and was created by the provider, who retains a financial interest in its recommendation; therefore, I give it minimal weight. Nevertheless, both the Parent and DOE acknowledged that the Student previously benefited from ABA as part of DOE’s Early Intervention Program, and the report also documents that benefit. I therefore find that the four months of ABA therapy (more than 200 hours) that the Student received in 2021 before transitioning to the Private School, combined with the Student’s appropriate placement in the Private School, addressed his difficulty generalizing skills so as to allow him to receive educational benefit. Reimbursement to the Parent for the ABA therapy administered in 2021 is granted; however, the additional 1300 hours of ABA is denied.
IEEs Granted
A parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.[70] In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”[71] The U.S. Department of Education’s Office of Special Education Programs (OSEP), has similarly stated that when a parent disagrees with an evaluation because a child was not assessed in a particular area, “the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs.”[72] In this case, DOE did not dispute that it failed to conduct timely evaluations (it administered the Student’s last evaluations in 2019 or earlier), and it also failed to take the necessary action to ensure that the Parent’s requested IEEs were provided at public expense. The Parent is therefore entitled to have the requested IEEs conducted at public expense by duly qualified evaluators selected by her.
Transportation Granted The Parent last requests door-to-door transportation between home and school, with limited travel time of one-hour or less each way. 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.”[73] Transportation may be deemed necessary “if in its absence a disabled child in private 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.’”[74] 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.”[75] In the absence of any evidence or argument from DOE as to why the Student should not receive transportation, that request is granted.
ORDER
Based upon the above Findings of Fact, it is hereby:
- • ORDERED that DOE shall fund the tuition owing directly to the Private School for the Student’s 10-month placement during the 12-month 2021-2022 school year in a sum not to exceed $78,775.00. (Seventy-Eight Thousand Seven Hundred Seventy-Five Dollars).
- • FURTHER ORDERED that the Student is entitled to receive 28 hours of occupational therapy to be administered individually (1:1) in 30-minute sessions.
- • FURTHER ORDERED that DOE shall fund the Student’s occupational therapy sessions at a rate not to exceed $225 per hour, and shall issue payment directly to the provider of the Parent’s choosing within 30 days of submission of a copy of the invoice. This bank of compensatory OT services shall not expire for two years from the date of this Order.
- • FURTHER ORDERED that DOE shall reimburse the Parent in the amount of $1,734.70 within 30 days of this Order.
- • FURTHER ORDERED that at the Parent’s preference, DOE shall either (1) provide a neuropsychological assessment; or (2) fund a neuropsychological assessment using a provider of the Parent’s choosing, within 90 days of the date of this Order, at the provider’s normal and customary rate not to exceed $5,000, and shall issue payment directly to the provider within 30 days of submission of the evaluation and invoice.
- • FURTHER ORDERED that at the Parent’s preference, DOE shall either (1) provide a speech/language assessment; or (2) fund a speech/language assessment using a provider of the Parent’s choosing, within 90 days of the date of this Order, at the provider’s normal and customary rate not to exceed $1,400, and shall issue payment directly to the provider within 30 days of submission of the evaluation and invoice.
- • FURTHER ORDERED that at the Parent’s preference, DOE shall either (1) provide an occupational therapy assessment; or (2) fund an occupational therapy assessment using a provider of the Parent’s choosing, within 90 days of the date of this Order, at the provider’s normal and customary rate not to exceed $1,400, and shall issue payment directly to the provider within 30 days of submission of the evaluation and invoice.
- • FURTHER ORDERED that DOE shall provide door-to-door transportation, with limited travel time not to exceed one hour each way, between the Student’s home and the Private School, for the 12-month, extended 2021-2022 school year.
- • FURTHER ORDERED that the Parent’s remaining claims for compensatory speech-language therapy and 1300 hours of ABA funding are DENIED.
SO ORDERED.
DATED: December 21, 2022
/s/ Roberta Wolf, Esq. Impartial Hearing Officer Roberta Wolf
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.
DISTRICT EVIDENCE
Exhibit
Title
Date
Pages
1
Meeting Notice Committee on Special Education (CSE)
05/28/2019
3
2
Elementary School Occupational Therapy Evaluation of Function and Participation
10/24/2019
7
3
Meeting Notice Committee on Special Education (CSE)
10/24/2019
3
4
Prior Written Notice (Notice of Recommendation)
11/07/2019
4
5
SESIS Events Log
1/14/2020 – 09/23/2020
1
6
Meeting Notice Committee on Special Education (CSE)
10/14/2020
3
7
Individualized Education Program (IEP)
10/28/2020
20
8
Individualized Education Program (IEP) (Revision to add OT)
10/28/2020
22
9
Individualized Education Program (IEP) (Revision to add 12-month services)
10/28/2020
23
10
SESIS Events Log
09/24/2020 –
08/18/2021
4
PARENT EVIDENCE
Exhibit
Title
Date
Pages
A Impartial Hearing Request 10/7/2022 13
B Ten Day Notice 8/27/2021 6
C Determination Report 9/16/2021 1
D Social History Report 8/22/2017 2
E Psychological Report 8/22/2017 5
F Educational Evaluation 8/29/2017 7
G Speech-Language Evaluation 9/7/2017 4
H Educational Summary 10/16/2018 4
I Annual Speech and Language Report 11/2/2018 3 J 12-month Justification Nov. 2018 1
K Individualized Education Program 2/14/2019 13
L Consent for Additional Assessments 3/1/2019 1
M Classroom Observation 6/3/2019 2
N Individualized Education Program 6/10-6/11 2019 22
O Request for Reevaluation 9/13/2019 1
P Consent for Additional Assessments 10/14/2019 1
Q Occupational Therapy Parent Checklist 10/14/2019 2
R Occupational Therapy Evaluation 10/24/2019 7
S Individualized Education Program 11/7/2019 25
T Special Education Remote Learning Plan 4/17/2020 2
U Special Education Program Adaptations Document 9/21/2020 4
V Related Services Adaptations 9/23/2020 3
W Prior Written Notice 11/11/2020 4
X Emails between Parent and [REDACTED] 11/30/2020 3
Y Emails between Parent and [REDACTED] 11/30/20 and 12/20/20 1
Z Emails between Parent and [REDACTED] 12/22/20 - 1/7/21 2
AA Individualized Education Program 10/28/2020 20
BB [REDACTED] 2021-2022 Contract 8/27/2021 3
CC Weekly Schedule undated 1
DD Progress Report 2021-2022 2/4/2022 20
EE Progress Report 2021-2022 6/17/2022 24
FF STAR Assessment Records various 2
GG Parent's Tax Return Summary and W-2 2020 4
HH ABA Services Invoices various 20
II [REDACTED] Assessment Summary and Treatment Plan 7/15/2021 12
JJ Affidavit of [REDACTED] 9
KK Parent's Tax Return Summary 2021 3
LL Affidavit of [REDACTED] 11/29/2022 13 Footnotes
[1] Ex. A.
[2] Id.
[3] Tr. 12 4-25, 13 1-25, 14 1. The October 29, 2020 IEP, intended for annual review on October 29, 2021, covered two school years (2020-2021, 2021-2022).
[4] Ex. 7-002, S.
[5] Tr. 36 15-25, 37 1-10.
[6] Ex. 9-001, 9-003.
[7] The Student received three IEPs for 2020; however, the Parent noticed missing provisions on the first two copies (OT, 12-month school year) and requested revisions. Ex. X-Z, JJ-7.
[8] Ex. 9-001.
[9] Id.
[10] Ex. 9-001, E-1, E-4
[11] Ex. 9-004.
[12] Ex. 9-002, B-2, N-2.
[13] Ex. 9-016-017
[14] Ex. 9-003
[15] Ex. 9-023.
[16] Ex. 9.
[17] Ex. 9-002-003.
[18] Ex. N-16, N-18, 9-020.
[19] Ex. N-12, N-19.
[20] Ex. T.
[21] Ex. JJ-6.
[22] Ex. B, JJ.
[23] Ex. JJ-8.
[24] Ex. C-1.
[25] Ex. LL.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Ex. EE.
[31] U.S.C. § 1412 (a)(1)(A); Education Law §§ 4402(2)(a), (b)(2).
[32] Board of Education v. Rowley, 458 U.S. 176, 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[33] U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 300.513(a)(2); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007).
[34] U.S.C. § 1415(f)(3)(E)(i).
[35] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993); Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356 (2d Cir. 2006), cert denied, and Board of Educ. of Hyde Park Cent. School Dist. v. Frank G., 2007 WL 2982269 (Oct. 15, 2007).
[36] Rowley, 458 U.S. at 203.
[37] See 34 C.F.R. § 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v); see Application of the Dep’t of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep’t of Educ., Appeal No. 06- 029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9.
[38] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).
[39] Ex. 7-002, S.
[40] Ex. 7-002, S-7-9, S-13-14.
[41] Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 115 (2d Cir. 2007) (citing Frank G., 459 F.3d at 365 (quoting Rowley, 458 U.S. at 188-89)).
[42] S.W. v New York City Dep’t of Educ., 646 F. Supp. 2d 346, 361-363 (S.D.N.Y. 2009).
[43] CFR § 300.510(a).
[44] CFR § 300.508(e)(f), 8 NYCRR §§ 200.5(j)(2), (i)(4). The prior written notice proffered by DOE pertained to the 2019 IEP.
[45] Ex. BB. The Student completed the summer portion of the 12-month school year in a DOE public school prior to his unilateral placement at the end of August.
[46] Ex. JJ, KK.
[47] See Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997).
[48] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[49] Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that compensatory awards should place children in the position they would have been in but for the violation of the Act).
[50] See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014); see also Newington, 546 F.3d at 123.
[51] Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007).
[52] 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.
[53] Application of a Child with a Disability, Appeal No. 22-004 (citing Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005).
[54] M.M. v. NYC Dep’t of Educ., 2017 WL 1194685, at *8, supra.
[55] C.W. v. Rose Tree Media Sch. Dist., 395 Fed. App’x 824, 838 (3d Cir. 2010).
[56] Somberg v. Utica Community Schs., 2017 WL 242840, at *4 (E.D. Mich. 2017).
[57] Ex. EE-18.
[58] Ex. T.
[59] Ex. S-16.
[60] Ex. 13.
[61] Ex. 9-016.
[62] Ex. 10.
[63] Id.
[64] Ex. HH.
[65] Ex. II.
[66] Id.
[67] See F.L. and M.L. ex rel. F.L. v. New York City Dept. of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); P.S. v. New York City Dept. of Educ., 2014 WL 3673603, at *13-14 (S.D.N.Y. 2014); C.M. and S.M. ex rel. L.M. v. Mount Vernon City Sch. Dist., 2020 WL 3833426, at *26 (S.D.N.Y. 2020); L.K. v. New York City Dept. of Educ., 2016 WL 899321, at *8-10 (S.D.N.Y. 2016), aff’d in part, L.K. v. New York City Dept. of Educ., 674 Fed. App’x 100 (2d Cir. 2017).
[68] L.K., 2016 WL 899321, at *9.
[69] R2-J Sch. Dist. v. Luke P., ex rel. Jeff P., 540 F.3d 1143, 1152 (10th Cir. 2008).
[70] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).
[71] Id.
[72] Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[73] 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).
[74] Id. at 1375 (internal citations omitted).
[75] Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww).