NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
FINDINGS OF FACT AND DECISION
Case Number: 242004
Student’s Name: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent” or “Mother”)
Request Date/Date Complaint Filed: November 10, 2022
Date(s) of Hearing: December 22, 2022,
March 16, 2023
April 18, 2023
May 24, 2023
June 5, 2023
July 12, 2023
Actual Record Closed Date: September 20, 2023
Date of Decision: September 20, 2023
Hearing Officer: Stephanie Seto, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
DECEMBER 22, 2022
For the Student:
REDACTED, Esq., Law Offices of REDACTED
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
MARCH 16, 2023
For the Student:
REDACTED, Esq., Law Offices of REDACTED
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED
APRIL 18, 2023
For the Student:
REDACTED Esq., Law Offices of REDACTED
For the Department of Education:
REDACTED, Esq., Attorney for NYC Department of Education (“DOE” or “District”)
NAMES AND TITLES OF PERSONS WHO APPEARED
MAY 24, 2023
For the Student:
REDACTED, Esq., Law Offices of REDACTED
For the Department of Education:
REDACTED, Esq., Attorney for NYC Department of Education (“DOE” or “District”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 5, 2023
For the Student:
REDACTED, Esq., Law Offices REDACTED
For the Department of Education:
REDACTED, Esq., Attorney for NYC Department of Education (“DOE” or “District”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 12, 2023
For the Student:
REDACTED, Esq., Law Offices of REDACTED
REDACTED, Parent (“Parent” or “Mother”)
REDACTED, Director of REDACTED
For the Department of Education:
REDACTED, Esq., Attorney for NYC Department of Education (“DOE” or “District”)
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about November 10, 2022 (P Ex. A, DPC also IHO Ex. V)[1] alleging a denial of a free appropriate public education (“FAPE”) for the 2022-2023 school year. P Ex. A. In the DPC, Parent sought an order the District: (i) provide direct funding for an independent educational evaluation (“IEE”) - Central Auditory Processing evaluation (“CAPE”) Student, at market rate, that was previously recommended by evaluators of Student in 2022 but never conducted by District; (ii) Find the District denied Student a FAPE for the 2022-2023 school year and Parent was cooperative while District abdicated its obligations and delayed unreasonably in an inequitable manner; (iii) provide and fund a bank of compensatory services; (iv) Order an appropriate IEP for Student with recommended placement in an appropriate New York State Approved Non-Public School (NPS), extended school year (ESY) summer program and/or services and appropriate services including 1:1 or small group specialized remedial reading, writing and math instruction, Speech and Language Therapy (S/L T), assistive technology (AT), Occupational Therapy (OT) and Counseling. P Ex. A-12-13.
I was appointed a IHO on November 14, 2022 in this matter. The case was heard on the multiple dates listed above. The compliance date was extended per the request of the Parties in order for an interim CAPE evaluation to be completed, all witnesses to appear, submission of post-hearing briefs, and adequate time for the IHO to render a decision. [2]
A list of the documentary evidence submitted is appended to this Order.
On January 4, 2023, this IHO issued an interim order directing District conduct a CAPE evaluation of Student. IHO Ex. IV, Interim Order.
After the DPC herein was filed, this IHO issued a Findings of Fact and Decision (“ December 2022 FOFD”) on December 30, 2022 (“2022 FOFD”) in prior DPC #215112 in which District was found to have denied Student a FAPE for the 2019-2020, 2020-202 and 2021-2022 school years. In the 2022 December FOFD, a portion of the relief ordered was District to reconvene an IEP meeting for Student and refer Student to the Centrally Based Specialized Team (CBST) for placement at a New York State Approved Non-Public School (“NPS”). See P Ex. B (also IHO Ex. VI). The District was also ordered to provide Student in the Interim (before the reconvene, referral to the CBST and placement at an NPS) to provide Student with additional services of 5x60x1 pullout specialized individual supplemental reading instruction utilizing a remedial specially designed reading instruction, 2x60x1 pullout or small group supplemental remedial instruction in Math using multi-sensory instruction, 2x30x1 and 1x30 in a group of 3 S/L T and Occupational Therapy (OT) 1:1 once a week for thirty minutes and once a week in a group of two for thirty minutes. See P Ex. B.
Following the December 2022 FOFD and during the pendency of this matter, the District “reconvened” an IEP meeting in 2023 and referred this matter to the CBST for Student’s placement in a NPS. Tr. 20-21, 32, 49-52, 110-111;P Ex. E (“May 2023 IEP”). After an initial reconvene in February of 2023, Student went through the process of applying to NPS schools and was accepted into the REDACTED (“REDACTED”) in the late Spring of 2023 for the 2023-2024 school year. Tr. 20-21, 32, 49-52, 110-114; IHO VII, Parent’s Closing Memorandum. The CBST developed an IEP to be implemented at the end of May 2023 that was not implemented until the beginning of the 2023-2024 ESY. Tr. 20-21, 32, 49-52, 110-114; P Ex. E-9; ; IHO VII. This IEP reflects Student’s placement was deferred to the to the CBST for an NPS placement with a ESY program in a standard-assessment special class (12:1+1) for ELA/Math and pull-out SLT (1x30x3, 2x30x1) and an iPad, and added pull-out Occupational Therapy (1x30x1, 1x30x2) and 1:1 Individual Reading Instruction (2x30x1). Tr. 20-21, 32, 49-52, 110-114;P Ex. E-18–26. (and after Student went through the application process at NPS schools was accepted into the REDACTED Student started her ESY NPS program at REDACTED in the Summer of 2023. Tr. 110-114.
Following the issuance of the May 2023 IEP and Student’s acceptance into REDACTED, Parent’s requested relief at paragraph 53(d) in the DPC for an order that the District create an appropriate IEP for Student that changed her placement to an NPS for an ESY with specialized remedial reading, writing and math instruction, S/L T, AT and OT was moot as Student had been referred to an NPS and had been accepted into REDACTED and Parent would not pursue the relief requested the relief requested. Tr. 67-68.
As Student did not receive the relief requested in paragraph 53(d) until the start of the 2023-2024 school year, Parent’s claims of a denial of FAPE for the 2022-2023 school year were not retracted and Parent sought at a merits hearing relief requested under paragraph 53(e) compensatory education and equitable relief as a result of the denial of FAPE during the 2022-2023 school year, including any pendency violations. P Ex. A-12.
Under the unappealed December 2022 FOFD, Student was entitled to pendency (as a change of agreed program after the DPC was filed) of services of 5x60x1 pullout specialized individual supplemental reading instruction utilizing a remedial specially designed reading instruction, 2x60x1 pullout or small group supplemental remedial instruction in Math using multi-sensory instruction, 2x30x1 and 1x30 in a group of 3 S/L T and Occupational Therapy (OT) 1:1 once a week for thirty minutes and once a week in a group of two for thirty minutes until the portion of the 2022 FOFD relating to the IEP reconvene, referral to the CBST and placement in a NPS occurred. See P Ex. B. No pendency hearing or pendency agreement or pendency form was entered into in this matter.
The District did not defend that the IEP created by the CSE following a June 1, 2022 IEP meeting at issue in this matter or the placement of Student delivered Student a FAPE. Tr. 76-118. District did not put on a direct case in this matter, did not offer any documentary evidence, did not offer any witnesses and waived an opening statement but did state that District reserved its right to “challenge the amount of [compensatory] relief requested.” Tr. 76-78. District declined to set forth what if any compensatory relief Student was entitled. Tr. 76-78. District cross-examined the Parent’s two witnesses. Tr. 91-105; 111-114. Ultimately, the District did not submit a written closing statement or request to make a closing statement on the record. Tr. 76-118.
The Parent submitted multiple exhibits and the testimony of the following witnesses: Dr. REDACTED, a specialist in special education tutoring and Founder and Director of REDACTED a tutoring agency specializing in 1:1 tutoring of Student’s with special education needs (Tr. 84-85;P Ex. P) and Student’s Mother. Parent’s counsel submitted a written closing memorandum following the hearings on the merits. IHO VII. The record was closed on September 20, 2023.
As discussed below herein, I find District failed to provide Student a FAPE for the 2022-2023 school year and grant the compensatory educational relief sought by Parent in the form of 400 hours of 1:1 compensatory remedial tutoring services funded by the District at market rate due to the denial of FAPE. Tr. 76-118; IHO Ex. VII.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
Parent’s Position
The DPC challenges the relevant IEP in this matter created following a June 1, 2022 IEP meeting, on several claims based on procedural and substantive inadequacy and a failure to implement properly. P Ex. A and C. Parent asserts in the DPC that the 2022 IEP and the program as implemented during the 2022-2023 school year was not based upon adequate data or evaluations, failed to meet Student’s needs, did not provide Student with appropriate individualized instruction to meet her academic and social-emotional needs and did not provide Student with any meaningful benefit as developed or implemented based upon her needs and abilities. P Ex. A.
As discussed above, Parent ultimately only sought relief in the form of compensatory education in the form of four hundred hours of 1:1 remedial tutoring for the 2022-2023 alleged denial of FAPE and other relief sought in the DPC was rendered moot by the time the merits hearing occurred in July of 2023 (Student was placed in an NPS at the start of July 2023 pursuant to a new IEP finalized at the end of May 2023).
District’s Position
District did not actively defend against any of the Parent’s claims that a FAPE was not provided during the 2022-2023 school year. Failing to either dispute that Student was denied a FAPE for the 2022-2023 school year or state District’s position on Student’s entitlement to compensatory education, District stated only a reservation of right to dispute the amount of compensatory education ultimately sought by Parent. After that, District never stated it disputed the amount of compensatory education Parent sought for denial of FAPE in the 2022-2023 school year.
FINDINGS OF FACT
The following are my findings of fact on the record and relevant testimony and documentary evidence presented in this matter. The facts and procedural history set forth “Introduction and Procedural History” and “Background” are incorporated as findings of fact herein to avoid repetition. My Findings of Fact address only the most relevant facts pertaining to my conclusions herein, which are necessary to make a decision.
The following facts are undisputed:
1. During the 2022-2023 school year, Student was a REDACTED-year-old girl that turned REDACTED. P Ex. A.
2. Student was classified as Learning Disabled in the June 1, 2022 IEP that Parent challenged in the DPC. P Ex. A and C.
3. Student was diagnosed with a Language Disorder – Receptive and Expressive Delays; Specific Learning Disorder in Reading (Dyslexia), Severe; Specific Learning Disorder with impairment in Writing, Severe; Specific Learning Disorder in Math, Mild-Moderate; Acute Stress Disorder with Mixed Anxiety and Depressed Mood in 2022 Neuropsychological Evaluation conducted in April of 2022 with report issued May 26, 2022 (“May 2022 Neuropsych”). P Ex. H 1-28.
4. Prior to the Neuropsychological Evaluation 2022 Student had been assessed previously with similar findings and recommendations made and was known to the District for several years as a Student with average intelligence who struggled academically due to her disabilities and consistently performing below grade level for several years. P Ex. A- O. Student had been deemed eligible for special education programming for many years prior to the year at issue. P Ex. A-O. Through the years, Student’s special education program included different placements at her general education community school, REDACTED, placed most recently in a special 12:1:1 class with SETSS and S/L T services and was targeted to receive “at-risk” SETSS services at various times. Tr. 107-118;P Ex. A-I.
5. For the 2022-2023 school year Student attended fifth grade at REDACTED (where she attended since Kindergarten). Tr. 107-108;P Ex. A-G.
6. At the time of Student’s June 2022 IEP meeting, Student had been diagnosed with a Specific Learning Disorder in Reading (Dyslexia), Specific Learning Disorder in Writing and Specific Learning Disorder in Math as well as an acute stress disorder, adjustment disorder with mixed anxiety and depressed mood. P Ex. H,I and M. The evaluations that were the basis of these diagnoses were made known and available to the District prior to the June 2022 IEP meeting that resulted in Student’s 2022 IEP but were not used by the CSE. P Ex. A-B, H-I, M.
7. Student repeatedly and consistently through the years was assessed with cognitive functioning in the average range with an Average Full-Scale IQ with all areas of cognitive functioning average-or-higher. P Ex. A-B, H, M.
8. Student struggled in school from at least first grade while at REDACTED despite receiving special education services, and she was not provided with specific specially designed reading instruction and/or evidenced-based programs to address her Dyslexia and Dysgraphia. P Ex. A-C, H.
9. At the end of fourth grade, at the time of the creation of Student’s 2022 IEP, Student’s academics remained significantly delayed with a large discrepancy between her cognitive abilities and academic abilities with her reading abilities depending on the skill set between a low first grade level and high second grade level Reading and Writing and Math between low third grade level to high fourth depending on the skills examined. See P Ex. A, C and H.
10. The June 2022 IEP recommended Student’s continued placement in a 12:1+1 special education class for the subject of ELA (15 periods a week) and placement in an ICT class for Math (10 periods a week), pull-out Special Education Teacher Support Services (SETSS) for ELA individual services twice a week and group services twice a week, and S/L T twice a week in a group setting of up to three (no ESY). P Ex. C. Also recommended was using an iPad 7 as Assistive Technology. P Ex. C-13. This program was almost the same as the prior year program for fourth grade except that Student was placed in an ICT class for Math (i.e. less services) according to her latest IEP created in June of 2021. P Ex. A- C. Student was recommended for a 10-month program, not an ESY. P Ex. C.
11. At the time of Student’s 2022 IEP was created the CSE did not review or consider several Independent Educational Evaluations (IEEs) that had just been completed and were available to the District including the May 2022 Neuropsych (P Ex. H), a May 2022 S/L T Evaluation (P Ex. L.) or an April 2022 OT Evaluation (P Ex. O) nor did they consider a prior 2020 Neuropsychological Evaluation or 2020 Pediatric Report (P Ex. I and M); all unconsidered evaluations (P Ex. H, I, L, M) and made specific recommendations for placements in NPS and specifically designed evidence -based reading programs, as well as a number of other recommendations not considered by the CSE in creation of the June 2022 IEP.
12. The June 2022 IEP does not reference any of the recent 2022 evaluations or past evaluations and references only informal benchmark assessments and grades. P Ex. C.
13. The Prior Written Notice (PWN) dated June 3, 2022 states that the only evaluative information considered was a 2021 OT Evaluation. P Ex. D-2.
Additional Findings of Fact:
14. The evidence and record indicate that during the 10-month 2022-2023 school year, Student remained at P.S.Q90 and received the program set forth in the June 2022 IEP, except that she was moved into a 12:1:1 specialized class for Math from an ICT class halfway through the year. Tr. 68-118; P Ex. E.
15. The unappealed December 30, 2022 FOFD (“December 2022 FOFD”) ordered Student receive additional services consisting of daily sixty-minute 1:1 pull-out services of individual supplemental remedial literacy instruction using a remedial Specially designed Reading Instruction (per 8 NYCRR § 200.6(b)(6) and two hours per week of 1:1 or small group remedial Math instruction using multisensory instruction, S/L T twice a week for thirty minutes 1:1 and once a week 30 minutes in a group of three and OT once a week for thirty minutes 1:1 and twice a week for thirty minutes in a group of two in the interim time period between issuance of the December 2022 FOFD and Student’s placement in an NPS. IHO Ex. IV.
16. District failed to show that Student received the interim additional services per the December 2022 FOF and Parent’s counsel’s represented Student never received these services as did Mother’s testimony and supporting documentary evidence support. Tr. 68-118; P Ex. E.
17. The May 2023 IEP states “student is receiving individual supplemental remedial instruction in ELA (5x60x1) pullout, individual supplemental reading instruction in Math (2x60x1) pull out” and S/L T and OT as set forth in the 2022 FOFD. P Ex. E-2. But, this statement is not supported by the report on Student’s pull-out SETSS or related services contained within the May 2023 IEP. P Ex. E-2.
18. The May 2023 IEP reported in a “SETSS update” and S/L T section do not indicate Student received any change to her SETSS services or S/L T services. Further there is no report student received OT. P Ex. E-3-6.
19. The SETTS update references only the SETTS Student was receiving before the issuance of the FOFD and as set forth in the June 2022 IEP – i.e. not 1:1 for an hour a week of specially designed remedial reading instruction or any remedial Math instruction. P Ex. E.
20. Mother testified that Student had continued with the same pullout SETSS (without remedial Specially Designed Reading Instruction) with the same SETSS teacher she had received in prior years and struggled throughout the 2022-2023 school year. Tr. 108-109.
21. Mother also testified, following commencement of compensatory tutoring with REDACTED (per a bank of compensatory educational services awarded in the December 2022 FOFD) Student told her “Mom, I’m going to read” and was excited by the tutoring and in contrast, Student conveyed dismay at the continued pull out SETSS with her SETSS provider within school (Ms. REDACTED) as Student did not believe these sessions were helping her. Tr. 109.
22. Student did not receive any change in her S/L T during pendency of this proceeding but only group S/L T twice a week and no OT. Tr. 70-118; P Ex. E.
23. Student’s end of the school year Report Card indicates she received all 1s in reading “Well Below Standards” and all 2s in Writing and Language “Below Standards.” Further, Student for the 1st and 2nd marking periods when in ICT class for Math received 1s and 2s and for the 3rd and 4th marking period when moved to the 12:1:1 class received 3s.
24. The May 2023 IEP reports in Math Student was performing low to low average and discusses that Student cannot solve multi-step word problems. P Ex. E. Student’s testing in Ela was all in the low range and her reading assessments in the Fall of 2022 were middle of 2nd grade and in the Winter of 2023 Beginning 3rd grade with her instructional levels listed as 3rd grade for Reading and 4th grade for Math. P Ex. E.
25. Dr. REDACTED assessed Student on June 8, 2023 and assessed Student’s Spelling in the low second grade, Reading and Writing second grade and low fifth grade for Mathematics. Tr. 78-95;P Ex. P-1.
26. The reports on Student’s progress indicate her progress was minimal to nil during the 2022-2023 school year and in particular her reading/writing skills remain significantly delayed and as the discrepancy between her cognitive abilities and academic performance widened the discrepancy between Student’s academic abilities and typically developing peers broadened. Tr. 78-118;P Ex. A-C, E, G-H, J, P.
27. Student was accepted into the REDACTED School (“REDACTED”), a New York State Approved NPS, for the 2023-2024 ESY school year per the May 2023 IEP; although the May 2023 IEP states it shall start at the end of May 2023, the May 2023 IEP was not implemented during the 2022-2023 school year. Tr. 68-75;P Ex. E, G.
28. Parent testified that she could only start the compensatory education ordered in the December 2022 IEP sometime in May of 2022 due to the extensive amount of time touring, interviewing and evaluations at NPS schools. Tr. 110-118. Parent testified she is a single working parent. Tr. 118.
29. Parent seeks a bank of 400 hours of compensatory education in the form of 1:1 tutoring services using a provider of Parent’s choice at market rate. P Ex. VII. This request is based upon the recommendation of Dr. REDACTED. Tr. 89-105; P Ex. P.
30. Dr. REDACTED recapped her testing of Student as also set forth in her letter stating her evaluation results and recommendation on June 12, 2023. Tr. 89-105; P Ex. P.
31. Dr. REDACTED specifically recommended 400 hours of 1:1 remedial instruction using Orton-Gillingham for decoding and spelling and similar research-based multi-sensory techniques for Reading Comprehension, Writing and Math. Tr. 89-90, 92; P Ex. P. Dr. REDACTED opined that she would recommend about fifty of the 400 hours be devoted to Math and the reminder to ELA. Tr. 92-93. ff
32. Dr. REDACTED’s recommendation is based on her evaluation of Student, review of her documentation and evaluation, her “significant” experience working with students with severe dyslexia as Student has and a learning disability in writing and math and working with children as significantly behind as Student. Tr. 90; P Ex. P.
33. Student’s 2022 evaluations and the 2020 evaluations stated Student’s need for specially designed evidence-based reading programs and the need for additional tutoring with evidence-based reading programs outside of school taught by tutors that are reading specialists or supervised by reading specialists along with placement in a specialized NPS for Students with similar learning disabilities. Tr. 99-100;P Ex. H, I, L, M and O.
34. Dr. REDACTED testified that Student required additional compensatory educational relief through tutoring using evidence-based reading programs even though she had been placed in an NPS at the beginning of the 2023-2024 school year. Tr. 100.
35. Dr. REDACTED testified Student required an additional 400 hours of compensatory tutoring in addition to the bank of compensatory hours Student received in the 2022 FOFD because Student did not receive appropriate programming for the 2022-2023 school year and Student is so far below grade level. Tr. 100-105.
36. At the time of Dr. REDACTED’s testimony, Student had about 10 tutoring sessions and was scheduled to receive tutoring in two-hour sessions three times a week through the Summer. Tr. 104.
37. Dr. REDACTED recommended that the recommendation for the compensatory bank averaged roughly five hours per week over a two-year school year and also discussed that Student could have a more intensive schedule during school breaks. Tr. 103.
38. Dr. REDACTED opined that out of the 400 hours, roughly 50 hours would be necessary for remedial Math and the remaining for Reading, Spelling and Writing. Tr. 92-93.
39. The District did not present testimony or evidence establishing that it complied with the IDEA’s substantive or procedural requirements in developing Student’s evaluation(s) and IEPs for the 2022-2023 school year nor any position on Parent’s request for compensatory relief or the amount and type (if any) District recommended in compensatory education.
I find Parent and Dr. REDACTED to be credible in their testimony.
CONCLUSIONS OF LAW
Law Regarding Regarding Denial of FAPE
The IDEA provides children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is developed through the IDEA's procedures 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). An IEP is designed as a “written statement” that addresses the educational needs of a child with a disability. 20 U.S.C. § 1401(14); 34 C.F.R. § 300.323 (a); see also, Cerra v. Pawling Cent. Sch. Dist., 427 F. 3d 186 194 (2d Cir. 2005).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. ___, 137 S.Ct. 988, 999, 69 IDELR 174 (2017).
A focus on the particular child is at the core of the IDEA. The instruction offered must be ‘specially designed’ to meet a child’s ‘unique needs.’” Id. To meet the IDEA’s requirements, a school district’s program must provide special education and related services that are “‘specially designed’ to meet a child’s ‘unique needs’” and are reasonably calculated to enable the child to receive educational benefits. Id.; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107 (2d Cir. 2007); see also, 20 U.S.C. § 1401(9). “[C]rafting an appropriate program of education requires a prospective judgment by school officials.” Endrew F.,[137] S.Ct. at 992. “The Act contemplates that this fact-intensive exercise will be informed not only by the expertise of school officials, but also by the input of the child’s parents or guardians.” Id. at 999.
Procedural and Substantive Violations that Constitute a Denial of FAPE
If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR § 200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). Adequate compliance with procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in the IEP.” Walczak v. Fla Free Sch. Dist., 142 F. 3d 119, 129 (2d Cir. 1998); Rowley, 458 U.S. at 206. “Multiple procedural violations may cumulatively result in the denial of FAPE even if the violations individually did not.” R.E. v. N.Y. City Dept. of Ed., 694 F.3d 167, 190-91 (2nd Cir. 2012).The failure of a school district to provide a FAPE for a disabled student may arise out of substantively inadequate or inappropriate IEP and/or placement (Rowley, 458 U.S. at 192) and/or procedural inadequacies that (i) "impeded the student's right to a free and appropriate education," (ii) "significantly impeded parent's opportunity to participate in the decision-making process regarding a free and appropriate public education to parent's child" or (iii) "caused a deprivation of educational benefits." 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 200.513 (a)(2);8 N.Y.C.R.R. § 200.5(j)(4)(ii); R.E., 694 F.3d at 190.
The IDEA does not articulate a specific level of educational benefits and the adequacy of an IEP “turns on the unique circumstances of the child for whom it was created.” Endrew F., loving parents.” Walczak, 142 F.3d at 132; quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989(citations omitted). Additionally, school districts are not required to “maximize” the potential of students with disabilities. Rowley, 458 U.S. at 189, 199.
An IEP must be “reasonably calculated to provide some ‘meaningful’ benefit.” Mrs. B. v. Milford Bs. Of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997; see also, Endrew F., 137 S. Ct. at 1001 (an IEP or program must be “reasonably calculated to make progress in light of the child’s circumstances.”) The “IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” Id. The Student’s recommended program must also be provided in the least restrictive environment. Gagliardo., 489 F.3d at 108.
The Endrew F. case was a rejection of a more-than-merely trivial advancement or “de minimus” standard. Mr .P v. West Hartford Board of Education, 885 F. 3d 735 (2d Cir 2018). In Endrew F. The Supreme Court pointedly rejected the 10th Circuit’s interpretation or the school district’s argument in Endrew F. that “merely more than de minimis” in Rowley created a set standard that or specific legal test that a school district had only to offer a program “sufficient to confer some educational benefit.” Endrew F. 137 S. Ct. at 997-998. The Court pointedly stated that Rowley declined “to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by” the DIEA. Id. at 997, citing, Rowley 458 U.S. at. 202. The Court pointedly rejected “some educational benefit” as a standard or test that the District Court should apply to examination of the sufficiency of educational programs offered students under the IDEA by a school district. “We find little significance in the Court’s language [in Rowley] concerning the requirement that states provide instruction calculated “to confer some interpretation of Rowley that a program that offers only de minimis progress from year to year “can hardly be said to have offered an education at all” and instruction “that aims so low would be tantamount to ‘sitting idly…awaiting the time when they were old enough to ‘drop out.’” Endrew F. 137 S. Ct. at 1000, citing Rowley at 458 U.S. at 179. Endrew F. interprets Rowley as declining to articulate an overarching standard and sets forth a “general approach” that a school must “offer an IEP reasonably calculated to enable a child to progress appropriate in light of the child’s circumstances.” Endrew F. 137 S. Ct. at 998-999.
Therefore, any review of an IEP must look at whether the IEP was reasonably designed (not ideal) to meet the child’s unique needs through an individualized education program and must be “appropriately ambitious” in light of the child’s particular needs. Id. at 999. Endrew F. discusses an appropriate program will consider whether a student with disabilities can receive education in a general education classroom or special education classroom through the continuum of offerings for different children’s needs and, what components of special education instruction a child needs. Id. The Endrew F. Court would not elaborate on what “appropriate” progress was from case to case. Id at 1001.
An IEP must include annual measurable goals including academic and functional goals consistent with a student’s needs resulting from student’s disabilities to enable the student to engage and/or be involved and progress in a general education curriculum and address Student’s abilities. 20 U.S.C. § 1414(d)(1)(A)(i)(II);8 NYCRR § 200.4(d)(2)(iii); M.H v. New York City Dep’t. of Ed., 685 F.3d 217, 245 (2c Cir. 2012). The goals must be sufficiently specific to provide direction to a student’s teachers and providers regarding the CSE’s expectations. NYS SRO #00-72. Failure to discuss the goals is a procedural inadequacy that can constitute as denial evaluation procedures and schedules used to measure progress toward meeting the annual goal during the period beginning with the placement and ending with the next scheduled review by the CSE. 8 NYCRR § 200.4(d)(2)(iii)(b); 20 U.S.C. § 141(d)(1)(A)(i)(III); 34 C.F.R. § 200.320(a) (3).
An IEP must provide specially designed instruction, i.e. adapted content, methodology delivery of instruction, to address the student’s unique needs resulting from the student’s disability to ensure access to the general education curriculum. 8 NY CRR 200.1(vv). “This remains true whether the issue relates to content, methodology or delivery of instruction in a child’s IEP A.M. v. New York City Dept. of Education, 845 F.3d 523, 545 (2d . Cir. 2017). “Where there are no evaluative materials present at the CSE meeting that suggest otherwise and the District did not conduct any evaluations of their own to call into question the opinions and recommendations in the evaluative materials… the CSE is bound at minimum to require some level of the recommended” placement or methodology or therapy to establish the adequacy of the IEP.” Id. An IEP’s” substantive inadequacy will be rooted in a failure to follow the consensus of evaluative materials” and “all witnesses familiar with the child” if the District does not point to any evidence “sufficient to counter these opinions.” A.M., 845 F.3d at 545.
The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress in light of his circumstances.” [emphasis added] Endrew F., 137 S. Ct. at 1002; A. R. v. Katanoh Lewisboro Union Free School District, 2019 WL 6251196 (S.D.N.Y. Nov. 21, 2019). In A.M., the 2d Circuit stated the R.E. case “stands for the unremarkable proposition that, when the reports and evaluative materials present at a CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not ‘reasonably calculated to enable the child to received educational benefits.” Id, citing Rowley, 458 U.S. at 207. An IEP’s failure to provide a particular classroom or methodology results in the denial of FAPE if “the testimony and reports indica[ed] that [the child’s] needs required” the particular placement or methodology. A.M., 845 F.3d at 545;
R. E. 694 F.3d at 194 (An IEP is substantively inadequate where there is a “clear consensus” student required a particular method and the IEP proffered does not offer insurance of such method of instruction.)
Burden of Proof
The burden proof is on the school district during an impartial hearing under the IDEA or New York State Education Law and attendant regulation. N.Y.S Ed.. Law § 4404(c)(1); R.E., 694 F. 3d at 184-85; C. F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d. Cir. 2014). This includes the burden of persuasion and production in a due process hearing, except that a parent seeking tuition reimbursement or funding for a unilateral placement have the burden of proof regarding the appropriateness of the unilateral placement. N.Y.S Ed.. Law § 4404(1)(c); see, Hardison v. Bd. of Education of Oneonta City School Dist., 773 F.3d 372, 386 (2d Cir. 2014); R.E. at 184-85; see also, M.P.G. v. New York City Dep’t. of Ed., 2010 EL 3398256 at *7 (S.D.N.Y. 8/27/2010).
As the case at hand does not address a unilateral placement, the District bears the burden of proof.
Law Regarding Compensatory Education
The remedy for a district’s failure to provide a FAPE is compensatory services. Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). Compensatory education is "replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 5518 (D.C. Cir. 2005).518; see also, Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015). 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 or equitable services. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008); E.M v. New York City Dep’t of Educ., 758 F. 3d 442, 451 (2d Cir. 2014)(compensatory education is remedy designed to “make up” for a denial of FAPE). An award of compensatory education is an equitable remedy that "should aim to place disabled children in the same position they would have occupied but for the school district's violation of the IDEA." Reid, 401 F.3d at 523; see also, Draper v. Atlanta Indep. Sch. System, 518 F.3d 1275, 1289 (11th Cir. 2008).
An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. 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). Compensatory Education awards should be designed to "appropriately address the problems with the IEP." P. v. Newington, 546 F.3d at 123 There are two approaches to fashioning a compensatory education award, a "quantitative Bd. of Educ of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007); see also, Reid, 401 F.3d at 518.
An IHO may order an escrow account or “trust fund” also referenced as a “bank” of compensatory hours/funding for compensatory education and services. Doe, 962 F. 3d 649 (2d Cir. 2020); Doe v. E. Lyme Bd. of Educ., 790 F. 3d 440 (2d Cir 2015); Streck v Bd. of Educ. Of E. Greenbush Cent. Sch. Dist., 408 F. App’x 411 (2d. Cir. 2010). An IHO can award compensatory services to a student denied FAPE if such deprivation “can be remedied through the provision of additional services.” Bd. of Educ. V. Munoz, 16 A.D.3d 1142 (4th Dept. 2005). Compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E. M.D.H., 2022 WL 1607292 at *3 (D. Minn. 2022) citing, Indep. Sch. Dist. No. 283 V. E. M
D. H., 960 F. 3d 1073, 1084-85 (8th Cir. 2019). The District is required under the due process procedures set forth in New York state law to address its burdens by describing its views, based on a fact-specific inquiry in the evidentiary record regarding appropriate compensatory education remedies that would address a denial of FAPE. The District was “required under the due process procedures set forth in New York State law to address its burdens in the impartial hearing context by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that most reasonably and efficiently could place the student in the position that he would have been but for the denial of a FAPE.” SRO No. 17-015, n.9; SRO Appeal, No. 19Specific Law Relating to Dyslexia/Learning Disabilities
The IDEA imposes additional evaluation procedures on districts “for identifying children with a Specific Learning Disability,” or suspected of having a specific learning disability, including Dyslexia. 20 U.S.C. § 1401(30)(B); see 8 NYCRR §§200.4(j), 200.1(zz)(6), 200.4(b)–(c); 34 C.F.R. §§300.305– 300.311.
In recent years, the U.S. Department of Education and the New York State Education Department have emphasized the importance that IEP teams properly identify and address Dyslexia, Dysgraphia, & Dyscalculia. See Revised Chapter 216 of N.Y. Law (2017), https://www.p12.nysed.gov/specialed/publications/documents/laws-of-new-york-2017-chapter216.pdf; NYSED Mem.: Guidance on Chapter 216 of the Laws of 2017-Students with Disabilities Resulting from Dyslexia, Dysgraphia, & Dyscalculia (2018), available at: https://www.p12.nysed.gov/specialed/publications/guidance-on-chapter-216-of-the-laws-of2017.html; see, e.g., NYSED Q&A: Students with Disabilities Resulting from Dyslexia, Dysgraphia, & Dyscalculia (Aug. 2018); available at:https://www.p12.nysed.gov/specialed/publications/documents/q-and-a-students-with-dyslexia-dysgrahia-dyscalculia.pdf; NYSED publication: Meeting The Needs of Students with Dyslexia, Dysgraphia, & Dyscalculia; available at: https://www.p12.nysed.gov/specialed/publications/documents/meeting-the-needs-of-students-with-dyslexia-dysgraphia-dyscalculia.pdf; NYSED publication: Identification of Students with Learning Disabilities Flowchart; available at: https://www.p12.nysed.gov/specialed/publications/documents/identification-of-students-with-disabilities-flowchart.pdf; Dear Colleagues (Oct. 2015); https://sites.ed.gov/idea/files/idea/policy/speced/guid/idea/memosdcltrs/guidance-on-dyslexia10-2015.pdf .
A long line of IDEA cases recognizes that problematic behaviors and other emotional problems follow from the failure to properly address a child’s reading disability. See Florence Cnty. Sch. Dist. Four v. Carter, 2:86–CV–2028, 12 EHLR 452, ¶6 (D.C.S.C. Jan. 30, 1991) (finding “Shannon suffers from a serious and significant learning disability … [and] also suffered from significant emotional overlay manifested by depression, feelings of low self-worth and self-esteem, as well as suicidal thoughts.”), aff’d, 510 U.S. 7 (1993); Evans v. Bd. of Educ., 930 F.Supp.83, 101 (S.D.N.Y. 1996)(similar); Hall v. Vance Cnty Bd. of Educ., 774 F.2d 626, 632 (4th Cir. 1985) (finding dyslexic student’s “repeated failure at school had resulted in emotional harm and that he had begun to develop a ‘school phobia.’”); Gerstmyer v. Howard Cnty. Public Sch., 850 F. Supp. 361 (D. Md. 1994) (concluding due to the prolonged failure to meet student’s academic needs, student “was distraught and said that he was ‘stupid’ and didn’t want to live.”).
New York State regulation defines “specially designed reading instruction” as “specially designed individualized or group instruction or special services or programs…in the area of reading..which is provided to a student with a disability who has significant reading difficulties that cannot be met through general reading programs. 8 NYCRR 200.6(b)(6). State guidance from 1999 discussing specialized instruction notes the term “specialized reading instruction” need not appear on an IEP but notes that a CSE should “consider what prior instructional methods and strategies have been utilized with the student to avoid reinstituting programs that have not proved effective in the past” and “ instructional methodology may be discussed at the [CSE] but is not specified on the IEP.” Guidelines on Implementation of Specially Designed Reading Instruction to students with Disabilities and Clarification About “Lack of Instruction” in Determining Eligibility For special Education, NYSED Memo (May 1999), see at www.p12.nysed.gov/special ed/publications/policy/readguideline.html.
Student was entitled to pendency services based upon the December 2022 FOFD that was issued after the filing of the DPC herein. No pendency program was implemented pursuant to the “Interim Relief” as described in the December 2022 FOFD. Pendency is an automatic right upon filing of a DPC of the change in status of Student’s stay put rights upon issuance of a new unappealed FOFD, Therefore, Student was entitled to an order to implement the “interim program” set forth in the December 2022 FOFD retroactive to issuance of the December 2022 FOFD until Student’s start in her program at REDACTED (although Parent does not make such a specific request.) But, the lack of provision of pendency services Student was entitled to until she was placed in the NPS maybe contemplated in review of compensatory services Student is entitled to as a Student is entitled to compensatory pendency services if pendency services are not provided.
ANALYSIS
A. The District Did Not Sustain Its Burden Of Proof That Student Was Offered A FAPE for any part of the 2022-2023 School Year.
District did not maintain that it offered Student a FAPE for 2022-2023 school year or dispute that the claim in the DPC it failed to offer Student a FAPE for the 2022-2023 school year. T District did not offer proof of a program sufficient to meet Student’s needs for the 2022-2023 school year was offered. The District failed to carry its burden of proof it provided a FAPE to Student by declining to defend against Parent’s DPC in this manner. The District declined to present a direct case in this matter.
The District did not offer testimony or evidence to meet its burden of proof and did not defend against the allegations in the DPC and therefore are deemed to have admitted the allegations in the DPC pertaining to liability for denial of FAPE for the school year at issue. W.A. v. Hendrick Hudson C.S.D., 219 F.Supp.3d 421, 462 (S.D.N.Y. 2016); K.S. v. N.Y.C. Dep’t of Educ., 2012 WL 4017795, at *6 (S.D.N.Y. Aug. 8, 2012), aff’d in relevant part, 927 F.3d 126 (2d Cir. 2019); see also, Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009); Janik v. Mediapost Com’ns, Inc., 2017 WL 2735578 (S.D.N.Y. June 26, 2017).
The District had to show it offered Student for the 2022-2023 school year with a program that was “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. ___, 137 S.Ct. 988, 999, 69 IDELR 174 (2017). The District had to show the instruction offered was ‘specially designed’ to meet a child’s ‘unique needs.’” Id.
The District failed to prove the program offered Student was sufficient to meet Student’s needs and failed to carry its burden of proof it provided a FAPE to Student. Parent challenged the substantive and procedurally appropriateness of the education provided to Student and District failed to show it complied with any of the requirements of IDEA and offered Student a FAPE. The record reflects Student’s IEP did not call for nor did Student receive specially designed reading instruction for Dyslexia or other recommendations of evaluators in the record. District failed to provide an explanation as to why the recommendations in the evaluations and documentary evidence offered by Parent in the record that evidence Student required a specialized program in a specialized school for students with similar learning disabilities as well as additional tutoring and which were not recommended for Student or implemented by District during the 2022-2023 school year.
Therefore, there is no question that the District failed to offer or implement a substantively appropriate valid IEP for Student for the 2022–2023 school year and denied her a FAPE.
B. Compensatory Relief For Denial of FAPE Student made minimal progress and did not receive the services and program she should have over the entire school year (a prolonged period of time).
The District did not defend its provision of FAPE nor propose compensatory relief. On balancing the equities, the Parent’s conduct and proposed relief is reasonable under the circumstances of this case. The district should have been prepared to respond to Parent's demand with support in the hearing record that identifies its view of the appropriate form and amount of compensatory education, if such an award is required and it did not.
The 2022 IEEs, Student’s Report cards and IEPs as well as Dr. REDACTED’s testimony regarding Student’s educational level as show Student’s reading and writing is multiple grades below where she should be and she is below grade level in math too, despite being of average intelligence and having received special education services for years.
Therefore, burden of proof at all times was on the District to respond to Parents claims. The District failed to address these claims and did not respond or assert position as to Parent’s requested relief as was District’s burden under the law.
Student was entitled to relief per pendency during the second half of the 2022-2023 school year in the form of specially designed reading and math instruction and increased S/L T and OT added to her program at her public school until her placement at an NPS (which did not occur until July of 2023) none of which occurred. This supports a finding that Student is entitled to some relief in the form of compensatory pendency services and as such this denial of student’s pendency rights may be factored into deducing compensatory relief.
There is nothing in the record where District provides any evidence as to why any of the relief sought by Parent is not appropriate to make up for the denial of FAPE for this school year.
Dr. REDACTED’s recommendation of 400 hours of 1:1 multi-sensory remedial tutoring services using the Orton-Gillingham technique or another similar evidence based remedial reading and spelling program as well as a similar multi-sensory instruction in Math and Writing is reasonable and supported by the documentary evidence. Dr. REDACTED’s recommendation is not only by her evaluation of Student and testimony but that of the documentary evidence provided regarding other evaluations conducted in 2022.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. ORDERED that the New York City Department of Education (“DOE” or “District”) failed to provide Student with a FAPE for the 2022-2023 school years;
2. IT IS FURTHER ORDERED that the District shall fund a bank of compensatory services of four hundred (400) hours of 1:1 compensatory remedial tutoring services using the OrtonGillingham Method or a similar evidence-based reading program and structured, multi-sensory instruction in writing, math and reading comprehension with certified literacy specialist chosen by Parent and funded by the District at the provider’s prevailing rate, such rate to be capped by the amount paid by the District to the same provider or agency for comparable services during the last twelve months sufficient for the services to be provided, at the times and locations agreed upon by the Parent and provider(s) and there is no time limit placed on when the four hundred hours in the bank are to be used by; and
3. The District shall immediately comply in all respects with this Decision and Order.
SO ORDERED.
DATED: September 20, 2023
Impartial Hearing Officer
Stephanie Seto, Esq.
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
A. Exhibit Description Date(s) Pgs Due Process Complaint (DPC) 11/10/2022 14 pages
B. Findings of Fact & Decision 12/30/2022 61 pages
C. IEP 06/01/2022 20 pages
D. PWN 06/03/2022 4 pages
E. IEP 05/12/2023 28 pages
F. PWN/School Location Letter 05/22/2023 4 pages
G. Report Card (2021-2022, final) 06/23/2023 2 pages
H. REDACTED Neuropsychological Evaluation 05/16/2022 44 pages
I. REDACTED Neuropsychological Evaluation 04/01/2020 30 pages
J. Grade 5 Progress Report 2022-2023 1 page
K. Teacher Questionnaire Undated 3 pages
L. Speech-Language Evaluation 05/17/2022 26 pages
M. REDACTED Health Report 11/25/2020 6 pages
N. Assistive Technology Evaluation 01/21/2020 20 pages
O. Occupational Therapy Evaluation 04/30/2022 9 pages
P. REDACTED Letter Due Process Complaint (DPC) 06/12/2023 2 pages
Q. Findings of Fact & Decision 12/30/2022 R. 61 11/10/2022 14 pages
IEP 06/01/2022
S. 20
PWN 06/03/2022
T. 4
IEP 05/12/2023
U. 28
PWN/School Location Letter 05/22/2023
V. 4
Report Card (2021-2022, final) 06/23/2023
W. 2
X. REDACTED Neuropsychological Evaluation 05/16/2022 44
IHO EXHIBITS
I. # Document Date Pages Interim Order DPC #215112 3/6/2022 17 pages
II. Neuropsychological Evaluation 5/16/22 44 pages
III. Speech Language Evaluation 5/17/22 26 pages
IV. Interim Order 1/4/2023 9 pages
V. DPC Parent Ex. A 11/10/22 14 pages
VI. FOFD 12/30/22- Par. Ex. B 12/30/22 61 pages
VII. Parent’s Closing Memorandum I. 8/6/2023 16 pages
Footnotes
[1] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. Note that this IHO believed that Parent’s Exhibits A, and B had already been entered into the record on May 24, 2023 when Parent offered exhibits for the record and therefore the IHO declined to enter P Ex. A and B due to a misunderstanding that P Ex. A and B had been entered previously and IHO expressed intent they were appropriate evidence to be entered into the record, as at minimum related to the Student’s pendency rights. Tr. 68-74. But, Exhibits A and B were never formally entered into the record. Therefore, I will refer to these Exhibits as A and B, but I have also entered P Ex. A and B herein in my Exhibit List appended to the end of the order as IHO Exhibit V (P Ex. A) and IHO Ex. VI (P Ex. B) and they are entered as such. P Ex .A and IHO V and P Ex. B and IHO VI are interchangeable and the same exhibits.
[2] Final extension was granted upon request of Parent with submission of closing memorandum on August 6, 2023 due this IHO’s Father’s death earlier that week; funeral held was on closing submission date.
[137] S. Ct. at 1001; Walczak, 142 F.3d at 130; Rowley, 458 U.S. at 189. The IDEA ensures “an appropriate” education, “not one that provides everything that might be though desirable by educational benefit” Id. at 998; citing, Rowley, 458 U.S. at 200. Endrew F. admonishes that an of FAPE. 20 U.S.C. § 1415(f)(3)(e)(ii). Each annual goal should include evaluative criteria, approach" (see M.C. v. Cent. Reg' l Sch Dist., 81 F.3d 389 (3d Cir. 1996)) or "qualitative approach," i.e., "a flexible approach, rather than a rote hour-by-hour compensation award.” See 018; see SRO Appeal, No. 14-014; SRO Appeal, No. 11-091; SRO Appeal, No. 13-110.