New York City Department of Education, Impartial Hearing Decision

Case Number: 591949 – NYC: 242635

FINDINGS OF FACT AND DECISION

Student’s Name: [REDACTED]

School District: N.Y.C. Dept. of Ed., District # [[REDACTED]]

Impartial Hearing Officer: Elana Soleimani

Date of Filing: 11/21/2023

Hearing Requested by: Parent

Date of Hearing: 05/31/2023

Record Close Date: 07/04/2023

Date of Decision: 07/04/2023 FOFD

Names and Titles of Persons Who Appeared on May 31, 2023:

For the Student:

[REDACTED], Esq (Parent Attorney)

[REDACTED], Parent Student

[REDACTED], Witness

[REDACTED], Interpreter ID #[REDACTED]

For the Department of Education:

[REDACTED], Esq. (DOE or District, or District’s Attorney)

[REDACTED], Witness

[REDACTED], Witness

[REDACTED]t, Witness

BACKGROUND AND PROCEDURAL HISTORY

Student is an [REDACTED]-year-old student classified by the District as a student with multiple disabilities under the Individuals with Disabilities Education Act (“IDEA”). Student’s eligibility for special education supports and services is not in dispute.

On November 21, 2022, Parents, through their attorney, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the IDEA and its implementing regulations and New York State Education law and its implementing regulations regarding the District’s failure to provide a Free and Appropriate Public Education (FAPE) to the Student for the 2020-2021, 2021-2022 and 2022-2023 school years. I was appointed on November 28, 2022, to preside over the claims in the DPC and to conduct an impartial hearing pursuant to 20 U.S.C §1415(F) and New York State Education Law §4404(1) to determine the claims in the DPC concerning Student’s special education program.

On December 27, 2022, the parties participated in a virtual pre-hearing conference. At this conference the parties agreed to submit briefs outlining their respective positions regarding Parent’s request for IEEs (independent educational evaluation). On or about January 13, 2023, the parties submitted their briefs and supporting documents via email. On January 26, 2023, I issued an order granting Parents request for public funding of the IEEs. Several status hearings were held to ascertain the scheduling, completion, and creation of reports for the IEEs.

On May 21, 2023, both parties appeared for a virtual hearing. The DOE submitted 14 exhibits into the record, including testimony from three witnesses, an occupational therapist from the DOE (OT), a speech language therapist from the DOE (SLT), and a special education teacher (SET) from the DOE. Parent submitted 20 exhibits into the record. Included in Parent’s evidence were two affidavits, one from the Parent and one from the Head Teacher (HT) of Student at Private School. Both parties were afforded the opportunity to cross-examine opposing parties’ witnesses and make oral closing arguments.

PARTIES POSITIONS AND CASES PRESENTED

Opening Statements:

The DOE asserted the following in their opening statement. Student was provided a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. The IEPs created for the FOFD

Student were reasonably likely to allow the Student to progress throughout the course of the school years in question. The DOE’s witnesses will testify as to how the IEPs were developed and how they allowed the Student to make progress. The Student was provided appropriate services throughout the school years at issue, and there are no services that the Student should be permitted to make up. Private School is not an appropriate placement and fails to address Student’s needs as it is not uniquely tailored to the Student.

Parents through their attorney, assert the following in their opening statement. Student is [REDACTED] years old with wide ranging needs. The DOE has repeatedly failed to appropriately educate Student year after year. The DOE has denied Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. The IEPs for these school years were based on inadequate evaluations and failed to address all areas of need. After seeing Student fail to make progress, Parent unilaterally placed Student at Private School for the 2022-2023 school year. Student has down syndrome, intellectual disability, and partial hearing loss. Student is difficult to understand and has limited comprehension skills. Student has a history of behaviors that interfere with learning, including non-compliance and elopement. Student also presents with delays in her social/emotional, fine motor and gross motor skills. Despite these wide-ranging deficits, the DOE merely conduced a classroom observation and psychoeducational evaluation as part of its most recent evaluation of Student in 2021. Through the interim order, IEEs were conducted, and Student was finally comprehensively evaluated. These independent evaluations show that Student requires more support than what she was getting through the program recommended by the DOE. The IEPs repeat goals from year to year showing that Student was not making adequate progress.

The District ignored Parents concerns and requests for additional help. Rather, Parent received numerous calls at home, putting the burden on Parent to encourage Student to behave better in school. At the 2021 IEP meeting, the District acknowledged that Student should be placed in a different school to receive more support, but never provided an appropriate option for the 2022-2023 school year. On June 17, 2022, Parent sent a ten-day notice (TDN) letter explaining concerns with the DOE’s program to the CSE and putting the DOE on notice of their intent to unilaterally place Student in a private school for the 2022-2023 school year, and seek public funding, if the DOE could not address their concerns and recommend an appropriate FOFD program. The DOE did not respond to the TDN. In July 2022, Student began attending Private School for the 12-month school year. Student began to make progress at Private School.

At Private School Student is receiving speech/language therapy (SLT), occupational therapy (OT), physical therapy (PT), hearing services (HS), social skills training (SST), and applied behavior analysis (ABA)based behavioral intervention supports that are implemented and supported by a board-certified behavior analyst (BCBA). The Parent was clearly reasonable in placing Student at Private School and she has in fact made progress there. Further, the equities in this case also clearly favor the parent. As the Parent cannot afford to front the cost of the entire school year’s tuition, they are seeking direct funding to Private School. Parent is also seeking compensatory services to remedy the denial of FAPE for the school years that Student was in the inappropriate DOE public school placement. Parent is specifically seeking^[138] hours of compensatory social skills training, 46 hours of compensatory parent counseling and training, 184 hours of compensatory SLT, 70 hours of compensatory AT (assistive technology) training, FOFD

Student receive one group push-in and pull-out session as needed on a weekly basis with each session lasting 30 minutes. “The clinician [OT] recommended that [Student]continue occupational therapy at her current mandate (one 30-minute group push-in or pull-out session weekly) based on a variety of factors including [Student’s] current academic performance, classroom staff observations and feedback, assessments, and clinical observations.”^[1] “Based on my clinical observations and the data collected, [Student] presented with poor sustained attention and ability to review her written work independently which aligned with her occupational therapy goal.”^[2] OT also reviewed the occupational therapy goals in the IEP. “The occupational therapy goal addresses [Student’s]ability to sustain effort on task and editing because it focuses on her handwriting and ability to self-monitor and sustain her attention, as well as copying her sentences. It is my clinical opinion that this goal is measurable because it has defined criteria and prompting methods. Accordingly, this goal takes into account [Student’s] challenges with writing, as based on my observation of [Student], assessment measures, as well as teacher reports in the IEP.”^[3] “She benefited from support in this area and would continue to benefit from support until she is able to initiate and complete the revision/editing and sustain attention process of her written work with increased independence. By the end of the 2021-2022 school year, [Student] had made moderate progress towards her goal but had not yet met all the criteria since there were approximately 6 more months for this IEP. It was anticipated that with more time and appropriate strategies [Student] would have met her goal.”^[4] “Therefore, it is my clinical opinion that the occupational therapy goals as well as the recommended services are clinically appropriate and reasonably calculated to ensure that [Student] makes academic progress during the 2021-2022 and 2022-2023 school year.” ^[5]

OT did not participate in the November 2020 IEP meeting and was not involved in the development of the OT goals for the 2020-2021 school year. Student at times needed positive reinforcement because she would become distracted if she became frustrated with a task and had difficulty maintaining attention. No formal occupational therapy evaluation was completed before the recommended OT program was provided. Student was able to write 2-3 sentences at Speech Language Therapist (SLT) witness testified via affidavit and upon further questioning as follows (D-14)

SLT has been with the DOE since 2017. SLT holds the following credentials: TSSLD (Teacher of Students with Speech and Language Disabilities), and ASHA certified (American Speech, Language Hearing Association). As a teacher of speech improvement with the DOE some of her duties include: the screening, evaluation, and treatment of students with speech-language disorders, develop and participate in IEP meetings and collaborate with staff and families. SLT has been working with Student since 2017, when Student was in first grade at Public School. SLT provided Student with speech-language services in the form of one 30-minute, individual push-in session a week in her 12:1+1 self-contained classroom, and one 30-minute, group pull-out session a week for most of the 2021-2022 school year. SLT also participated in the IEP meeting which resulted in the December 2021 IEP. From 2017 through 2020 Student demonstrated self-directed behaviors that impacted her ability to focus or complete tasks during the in-person sessions. “These behaviors included grabbing and holding onto items that belong to me and refusing to hand it over when asked, crawling on the floor away from me when she did not want to engage in an activity, tumbling and attempting cartwheels on the floor when I [SLT] attempted to teach and elicit trials, and refusing to respond or using only one-word responses. At that time, I [SLT] attempted to use visual schedules and incentives such as tangible objects (e.g. stickers, two-minute free time) however, it was inconsistently successful, depending on [Student’s] motivation for that day.” 6 “My responsibility was to mainly support Samantha with her verbal communication and phonics skills to help her access the general education curriculum in her 12:1+1 classroom and school community.” 7 With the assistance of the SLT Student was able to access the curriculum and make progress. SLT reviewed the IEPs for the school years at issue. “The IEP recommended that [Student] receive one group pull-out session and one individual push-in session weekly, with each session lasting 30 minutes. The clinician initially recommended that 6

D-14 ¶8 7

D-14 ¶9 FOFD [Student] continue speech services at her current mandate (one 30-minute group pull-out session, and one 30-minute individual push-in session, weekly) based on a variety of factors including [Student’s] current academic performance, teacher reports and assessment measures, performance assessment task through trial data collection, and provider observation. Taking into account these measurements, parent concerns, and re-evaluation reports, it was recommended that the mandate remain at once a week in a group in the therapy room, and once a week individually in the special education classroom because at the current mandate [Student] was making progress”^[8] “According to her IEP from 2021-2022, when evaluated using the Teachers College Reading Assessment in October 2021, [Student] was reading at a level B, which is Kindergarten. She benefited from support in this area and would continue to benefit from support until she met the defined criteria for this particular goal to help her increase her reading level.” ^[9] In SLT’s opinion “the speech-language therapy goals and the recommended services are clinically appropriate and reasonably calculated to ensure that [Student] made academic progress during the 2021-2022 and 2022-2023 school years.” ^[10]

SLT attended more than the December 2021 IEP meeting as she has been working with Student since October of 2017. SLT recommended that Student remain at the mandate in the December 2021 IEP, but as a team decided that the mandate was appropriate for speech services. Although SLT attempted a formal assessment pre-pandemic^[11] it was unsuccessful due to Student’s self-directed behaviors. Most of the assessments were informal through clinical observations and data tracking from each session, including information from teacher reports and teacher observations. An assistive technology device was not recommended due to Students self-directed behaviors. The goal from the November 2019 IEP was continued to the December 2021 IEP, since the SLT is focusing on articulation. However, there was a slight change in that 80% accuracy was too taxing for Student so the frequency was reduced to 70%. During the COVID-19 pandemic Student was home and utilized remote instruction for academics as well as related services. While at home and attending SLT sessions remotely, Student’s participation increased compared to in the classroom. Student had her Parent’s or sister with her during the sessions to assist in re-direction. FOFD

Special Education Teacher DOE (SET) testified as follows: SET was the special education teacher for Student for the 2020-2021 school year at Public School in a self-contained 12:1:1 class. SET holds a license/certificate for students with disabilities or grade 1-6 in special education. SET is responsible for instruction for the students with disabilities and is also responsible for supervising a paraprofessional assistant and classroom management. In addition, SET is also responsible for conducting diagnostics to assess students on their academics and collaborating with peers to plan the instruction, implement the curriculum and develop IEP 's. Student was stronger in math than in reading. Student had weakness in language and her ability to express herself as well as memory issues and cognitive functions. At the December 2021 IEP meeting Student was recommended for a 12:1:1 program at a D-75 School. A D-75 School is a school which helps student with multiple disabilities and would be appropriate for Student. During the 2021-2022 school year Student moved from a level A in reading to a level C.

Student was offered at-risk-counseling to assist in her social/emotional growth at Public School. Although at the beginning Student had a tough time with articulation and expressing herself verbally, eventually as the sessions and year progressed, she made progress and it started to get better. Student participated in all the extracurricular activities like the prom and senior field trip which requires an extreme amount of socialization. MAP testing of the Student was done in the 2021-2022 school year.

Parent

Head Teacher (HT) at Private School witness testified via affidavit and upon further questioning as follows: (P-S)

Head Teacher (HT) is New York State certified in childhood education grade 1-6 and childhood special education grades 1-6. HT’s duties at Private School include, overseeing a classroom of 9 children, managing classroom staff, providing direction and supervision to classroom paraprofessionals, preparing lessons and implementing direct instruction to students individually and in small groups, utilizing a multi-sensory approach by incorporating art, music, and technology, to design lessons to increase student communication, social and life skills, collaborating with each student’s therapy team that consists of occupational therapists (OT), FOFD speech therapist (ST), physical therapist (PT), social worker (SW) and with the board certified behavioral analyst (BCBA) at school. In addition, teacher implements areas of instructional focus for each student, prepares quarterly progress reports for students, participates in team meetings, parent/teacher meetings, and communicates regularly with parents as well as conducts frequent assessments and continuous data collection to monitor students’ progress. Private School has a BCBA on staff with two assistants who work with and train teachers, including HT in ABA (applied behavior analysis) principles. Private school uses a comprehensive and individualized approach for each student. Private School uses different researched-based methods aligned with each student’s individual needs. Students at Private School have a broad range of disabilities and classifications, including autism spectrum disorder, Down syndrome, speech and language delays, global development delays, and neurodevelopmental disorders. Private School provides related services including speech and language therapy, feeding therapy, occupational therapy, physical therapy, counseling, vision services, hearing services, art therapy, music therapy, and social skills. Students at Private School also receive physical fitness instruction.

HT is familiar with Student as Student has been in her class since December 2022. HT monitors Student’s participation, progress, classwork and observes her interactions with peers. Student’s class has nine students, one head teacher supported by two teacher’s assistants. The children in Student’s class range in age from 10-12 years old. Student is appropriately grouped in her class academically, socially, and behaviorally for the 2022-2023 school year. Student receives the following related services at Private School; SLT three times a week for 30-minute sessions individually, OT two times a week for 30-minute sessions individually, PT once a week for 30-minute sessions individually, and hearing services two times a week for 30-minute sessions individually. Student’s therapies are provided by staff licensed by New York State in their respective fields. Student needs individualized support in reading, math, and writing. Student benefits from integrated visuals to help understand text, develop ideas, and learn new academic topics. In addition, student needs support with peer socialization and communication along with behavioral support during non-preferred activities and transitions. In December, Student began working with HT at a level E and is not reading at a level F. To support Student’s hearing needs HT uses a sound field system which amplifies her voice in the classroom. Student is also encouraged to wear the BAHAs (bone conduction hearing aid) in class but is often resistant. Student has made steady progress in her fine motor skills. HT has monthly meetings FOFD with staff members that provide instruction or services to Student and is familiar with the progress Student has made. Head teacher is involved in the development of Student’s progress reports and communicates with Student’s parents to discuss her progress. Overall Head Teacher has seen Student make progress academically, socially, and behaviorally in the 2022 -2023 school year. HT believes Private School can provide student with appropriate supports to meet her unique needs.

Private school has between 50-60 students. Head Teacher works in a classroom with nine students, one head teacher and two assistant teachers, a 9:1:2. Private School as one BCBA on site who supports the students with two assistants who are working towards obtaining a BCBA license. HT assessed Student in January. Head Teacher “conducted a Fountas and Pinnell reading assessment at a Level E, I assessed her math with specific monetary assessments of counting similar denominations of bills as well as different denominations of bills and more informal writing assessments as well as informal social assessments.”^[12] Level E is equivalent to a first grade reading level.

Parent testified via affidavit and upon further questioning via interpretation services as follows: (P-T)

For the 2020-2021 school year Student attended Public School via remote learning due to the COVID-19 pandemic. Student had difficulty with remote learning and needed a lot of prompting and support to understand what to do. Student’s father had to be with her the entire time to guide her hand-over-hand and help keep her focused. For the 2021-2022 school year Student returned in person to Public School. Throughout the 2021-2022 school year Parents received numerous phone calls from staff at Public School regarding Student’s inappropriate behaviors, such as hitting other kids or staff. The Public School never provided suggestions with regards to the behaviors and did not provide extra support or behavior management. “Instead, they were asking me and [Student’s] father to just try to talk to [her] at home about behaving in school. This made me feel that the school did not know how to handle [Student’s] behaviors appropriately.” 13 Parent attended the IEP meeting in December 2021. At that meeting, the school staff said that Student was not learning and not receiving the level of support she needed at Public School. The resulting IEP recommended a D-75 school but did not provide Parent with FOFD a new placement school for Student. In addition, the team did not consider increasing any related services for Student. Parent requested a paraprofessional to help Student with behavior issues, but the IEP team did not recommend one. During the 2021-2022 school year, Parent was concerned that Student was not making progress academically, socially, or behaviorally and began researching private schools. On June 17, 2022, Parent through their attorney submitted a ten-day-notice (TDN) to the DOE informing them that Parent would be enrolling Student at Private School if the DOE did not provide an appropriate placement for her. Parent did not receive a response to the TDN. In July 2022, Student began attending Private School. At Private School Student began making progress.

Parent works a housekeeper and father works as a server, their combined income for 2022 was $43,088 and they cannot afford the tuition at Private School. Parent signed a tuition contract in the amount of $112,000 with Private School, stating that Parent is responsible for tuition.

During the 2020-2021 school year Student received SLT and PT remotely, with assistance from either the father or sister. Student did not make progress in speech during the 2020-2021 school year. Parent did not note any academic progress during the 2021-2022 school year. Parent sent a letter requesting that Student be held back a grade due to the lack of academic progress.

Closing Statements:

The DOE argued the following during their closing statement. During the school years at issue Student was able to make progress. During the 2020-2021 school year, when education was remote due to the COVID-19 Pandemic, Student participated in at-home teletherapy services which were provided by related service providers. Through the support and assistance of Student’s Parents and sister Student was more motivated and responsive to supports remotely. During the 2021-2022 school year when students returned following the pandemic, Student’s participation increased as did modifications. The DOE witnesses all testified that the IEP was appropriate for the school years in question. They were all able to see the Student make growth, the goals created were measurable and met the Student at her level. Throughout the school year, Public School saw a large amount of growth in Student’s behaviors and socialization. Student also progressed in reading from a level A to a level C. The student does face significant FOFD cognitive difficulties. The student was not on grade level and was not expected to be on grade level by the end of her IEPs, or the end of the implementation date for the IEP. What the IEPs do is, they meet the student where they're at, they contain the student's present levels of performance, discuss the student's physical and emotional development, with goals that are specifically tailored to address Student’s issues and needs. The Department's position is that the small class size in conjunction with all of the management needs within the IEPs in evidence, allow the student to make reasonable and meaningful educational progress in line with the IDEA. Therefore, the position of the Department is that they provided Student with a FAPE for the school years at issue.

In terms of the unilateral placement, it is the Department's position that Private School is not uniquely tailored to address Student's needs. There's no evidence regarding what the Student's goals at the school are. There's no evidence of her actual progress. There's no documentation regarding progress reports when viewed in totality. There's no way to determine that she is in fact progressing at Private School, or that the program is uniquely tailored to address her needs. Based upon this information when viewing the school in totality, it is Departments position, there's not enough evidence in the record for the Hearing Officer to make a determination that Private School is appropriate for Student.

In terms of the compensatory education request for the Student, the Student did undergo multiple independent evaluations. These independent evaluators make recommendations regarding where they believe the Student should be. However, these independent evaluators have never worked with the Student before. There's no testimony regarding whether they had ever previously evaluated her, whether there was any way to determine her expected rate of progress. There's no evidence or testimony of whether they spoke to previous providers, whether they were familiar with the services that Student was previously receiving, or what their basis is for the number of hours or the frequency and duration of hours of services recommended. The Student was receiving services. Her related service sessions are in line with the recommendations from the DOE as mandated in the IEP. Based on this information the Departments position is that the request for compensatory education should be denied.

Parent maintained the following in their closing statement. In the DPC, Parent specifically alleges that the DOE failed to appropriately evaluate Student, failed to develop goals in all areas of need, failed to provide an appropriate program that can address all areas of need, FOFD including failing to recommend any placement option altogether for the current school year. In addition, the DOE also failed to recommend sufficient related services. Looking at the IEPs themselves it appears that the IEP team often just carried over the goals from year to year, clearly indicating that Student was not meeting those goals. Yet the DOE did not attempt to recommend any changes to the program whatsoever or to offer more support. In fact, reviewing the other options considered in the IEP it appears that the team considered larger class sizes in integrated Co teaching (ICT) classrooms where student would have been mixed in with general education students working on grade level material. The IEP team did not once consider a smaller class size even though Student is now in the 6th grade chronologically but has been functioning at the kindergarten level at the time of the development of the IEP academically. The DOE 's failure to comprehensively evaluate Student which the DOE did not defend, caused them to develop IEPs that reflected a complete disconnect between what they thought was appropriate for the Student versus what the Student actually needed. The IEPs have no goals or recommendations as to social skills or emotional development. The Parent had tried to voice her concerns and make requests for more support, such as adding a paraprofessional to address Student’s behavior, but the DOE just kept recommending the same program that was not working. During remote learning Student was receiving one-to-one support from her Parents and sister. Yet despite that knowledge, of seeing how helpful it was for Student to have one-to-one support throughout the entire school day, the DOE didn't even consider providing her with any one-to-one support or any kind of paraprofessional and just wrote off the Parent's concerns. While the DOE witnesses made some sweeping statements that Student was making progress, the record simply does not support that. Although the IEP team acknowledged that Student needed a change in placement, the Parent testified that the DOE never gave her any such option. They never offered her any kind of District 75 program to tour or review, therefore, the DOE left the parent with absolutely no choice but to move Student to the unilateral placement for the 2022-2023 school year. The evidence clearly shows that Parent has met the burden as to appropriateness of the unliteral placement.

The request for the compensatory services is not based on an allegation that the DOE didn’t provide the services as mandated, but rather that the mandates themselves were inadequate. Student’s needs in those areas were not meaningfully addressed throughout the

Credibility

Upon my consideration of the evidence, including all admitted documents and the testimonies of the witnesses, I determine the following. In admitting the documents, I found them relevant, detailed, and consistent with the allegations in the DPC, as well representative of the facts for which they were offered, and therefore I credit all of them. As for the witnesses, I found no reason to doubt their veracity, with respect to the facts they related or to the opinions of the OT, ST, SET, HT and Parent, and I credit all the testimony as well. The weight I afford the exhibits and testimony will be reflected in the analysis.

LEGAL FRAMEWORK

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits.^[14] “The Supreme Court has indicated that "[t]he 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".^[15] However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP".^[16] "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created".^[17] The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents". ^[18] FOFD

Additionally, school districts are not required to "maximize" the potential of students with disabilities. 19 Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'". 20 The IEP must be "reasonably calculated to provide some 'meaningful' benefit".21 The student's recommended program must also be provided in the least restrictive environment. 22 An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, and provides for the use of appropriate special education services. 23

Compensatory Services

The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE. 24 Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA.^[25] Compensatory education is an equitable remedy that is tailored to 19 Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132 20 Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; 21 Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192) 22 (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132) 23 see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i], see also 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii], see also 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]. 24 see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; Newington, 546 F.3d at 123 [stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and . . . compensatory education is an available option under the Act to make up for denial of a [FAPE]"]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994] FOFD meet the unique circumstances of each case.^[26] As such, it may be similarly appropriate to consider the conduct of both parties in fashioning equitable compensatory education relief. ^[27]

FINDINGS OF FACT AND DECISION

2020-2021 and 2021-2022

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 appropriate in light of his circumstances.” ^[28]

The DOE argued that Student was provided with a FAPE for the 2020-2021 and 2021-2022 School years. The DOE provided evidence and witnesses testimony providing explanations as to how the IEP’s appropriately describe the Student, were meaningfully calculated to confer educational benefit and explain the recommendations contained therein.

Parents assert in the DPC that the DOE failed to evaluate Student thoroughly and appropriately on a timely basis; and that the IEPs were not based upon sufficient evaluations and evaluative data.

The 2019 IEP (D-1) utilizes evaluative data from 2019. The 2019 IEP has an implementation date of January 29, 2019, with a projected date of annual review of January 29, 2020. Therefore, this IEP would govern a portion of the 2020-2021 school year, one of the years at issue in this case. The 2019 IEP indicates that Student would benefit from an AT device (D-1-7) but none was provided. The IEP lists Students PLOP (present levels of performance) as reading level AA, equivalent to that of a pre-k student, writing baseline level 1, equivalent to that of a pre-k student and math baseline level 1 also equivalent to that of a pre-k student. The 2019 IEP lists 1 OT education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"] FOFD goal, and as of the 3rd progress report for the IEP the goal was not yet met. The 2019 IEP lists 2 PT goals, and as of the 2nd progress port for the IEP both goals were not yet met. The 2019 IEP lists 1 reading goal, and as of the 1st progress report for the IEP little progress was made towards this goal. The 2019 IEP lists 1 math goal, and as of the 1st progress report for the IEP little progress was made towards this goal. The 2019 IEP lists 1 writing goal, and as of the 1st progress report for the IEP little progress was made towards this goal. The 2019 IEP lists 1 SLT goal, and as of the 3rd progress report for the IEP goal was not yet met.

The 2020 IEP (P-B) utilizes evaluative data from 2020. The 2020 IEP has an implementation date of November ^[30], 2020, and an annual review date of November 24, 2021. Therefore, this IEP would govern a portion of the 2020-2021 school year as well as the 2021-2022 school year. The 2020 IEP indicates that Student would benefit from an AT device (P-B-6) but none was provided. The IEP lists Student’s PLOP as Level A reading, equivalent to that of a kindergartener, Level 1 in writing, equivalent to that of a kindergartener, and level 1 in math equivalent to that of a Kindergartner. One PT goal from the 2019 IEP was repeated verbatim in the 2020 IEP ^[29]. One speech/language goal from 2019 IEP was repeated verbatim in the 2020

IEP. 30

The 2021 IEP (P-E) does not indicate what if any evaluative data was used in completing the recommended program. The 2021 IEP notes the Student’s PLOP as a Level B in reading, and a kindergarten level for both writing and math. The same speech/language goal which was repeated in 2019 and 2020 was again repeated in 2021 with a change in the accuracy criteria, a reduction from 80% to 70%. Another Speech/Language goal from the 2020 IEP was copied FOFD verbatim to the 2021 IEP.^[31] One PT goal from the 2020 IEP was repeated verbatim in the 2021 IEP. ^[32]

From 2019 to 2020 Student made progress in reading, writing and math. From 2020 to 2021Student progressed in reading but made limited progress in other areas. Seeing this, the CSE team augmented some goals to make them achievable in light of Student’s individual circumstances.

In making this determination, I am mindful that school districts are not required to “maximize” the potential of students with disabilities,^[33] but must provide “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’” (my emphasis).^[34] The IEP must have been “reasonably calculated to provide some ‘meaningful’ benefit.”^[35] Moreover, any after-the-fact evidence on record which was unavailable to the CSE should not be considered in the determination and cannot be used to assess the CSE's recommendations at the time they were made. ^[36]

Parent also asserts a failure to evaluate Student. A district must conduct an evaluation of a student where the educational or related services needs of a student warrant a reevaluation or if the student's parent or teacher requests a reevaluation ^[37]; however, a district need not conduct a reevaluation more frequently than once per year unless the parent and the district otherwise agree and at least once every three years unless the district and the parent agree in writing that such a reevaluation is unnecessary.^[38] A CSE may direct that additional evaluations or assessments be conducted in order to appropriately assess the student in all areas related to the suspected disabilities.^[39] Any evaluation of a student with a disability must use a variety of assessment FOFD tools and strategies to gather relevant functional, developmental, and academic information about the student, including information provided by the parent, that may assist in determining, among other things the content of the student's IEP.^[40] In particular, a district must rely on technically sound instruments that may assess the relative contribution of cognitive and behavioral factors, in addition to physical or developmental factors.^[41] A district must ensure that a student is appropriately assessed in all areas related to the suspected disability, including, where appropriate, social and emotional status.^[42] An evaluation of a student must be sufficiently comprehensive to identify all of the student's special education and related services' needs, whether or not commonly linked to the disability category in which the student has been classified. ^[43]

I find the IEPs to have sufficient evaluative data and information and that the DOE need not have conducted additional evaluations at the time the IEPs were created. Notwithstanding the absence of formal assessments, I find that the IEP’s are consistent with the evaluative information and data available at the time of formation. The IEPs identified Student’s PLOPS, needs relating to academia, social emotional, hearing function and executive functioning. This was consistent with the testimony proffered by the DOE’s witnesses and incorporated in the evidence presented.

Based on the forgoing I find that the IEPs relating to the 2020-2021 and 2021-2022 school years at the time of formation were likely to produce progress, not regression, and were calculated to affords the Student with an opportunity greater than mere ‘trivial advancement. The fact that this advancement did not occur as swiftly as Parent had hoped is not an indicator of an inappropriate IEP.

COVID-19

When it comes to remote instruction and the switch to remote and hybrid learning necessitated by the Covid-19 pandemic, there is authority that bears mentioning ^[44]. The State FOFD

Review Officer (“SRO”) in this case specifically found that the missed services were missed due to the switch in the provision of instruction from in-person to remote learning in response to the Covid-19 pandemic. The SRO noted that the “CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 3-4; see "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1).

If the parent disagrees with a CSE's determination regarding the student's entitlement to compensatory services, State guidance notes that: Parents of students with disabilities may resolve disputes with school districts regarding the provision of FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j). ("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 -Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).

Here, there is no indication that a CSE has conducted such a review, nor is there any indication that the parent requested that the CSE conduct such a review. The parent expressed during the hearing that, Student had difficulty with remote learning and needed a lot of prompting and support to understand what to do. Student’s father had to be with her the entire time to guide her hand-over-hand and help keep her focused. The parent stated that she informed the school of the student's difficulties with remote learning. However, the parent did not testify that she requested a reconvene of the CSE specifically, but only indicated that the CSE did not consider her complaints and concerns at the IEP meeting.

The SRO continued: “At this point, the CSE should have reconvened to develop an IEP for the student for the 2021-22 school year (see Parent Ex, B at p. 1 [showing a projected date of annual review of April 6, 2021]), and the parent was required to raise these concerns concerning the student's regression and compensatory education with the CSE in the first instance. As discussed above, the USDOE and NYSED's Office of Special Education have indicated that, under these unique FOFD circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic. Accordingly, the IHO erred in ordering compensatory education at this juncture. However, the parties, if they have not already done so, should conduct a review of the student's present levels of academic achievement and functional performance as envisioned by federal and state education authorities and convene a CSE to engage in educational planning for the student, which should include a consideration of whether any compensatory services may be warranted to make-up for a loss of skill during school closures and the delivery of instruction and services to the student remotely. Once a CSE conducts such a review, if the parent disagrees with the recommendations thereof, she may pursue dispute resolution through one of the mechanisms described above.

Therefore, because the IHO's order alters the procedure that must be followed with regard to compensatory education services arising out of a change in the delivery of instruction during the COVID-19 pandemic, it cannot be upheld.

[VII. Conclusion]

In summary, given the allegations in the parent's due process complaint notice, the IHO erred in denying the district's motion to dismiss. The IHO should not have decided whether the district offered the student a FAPE from March 2020 through the 2020-21 school year, notwithstanding the shift to remote instruction due to school building closures resulting from the COVID-19 pandemic. Even if the district's delivery of remote instruction could support a finding that the district failed to provide the student a FAPE, the student would not be entitled to relief in the form of compensatory services at this juncture as it does not appear that a CSE review occurred.”

Given that the school years in question include a period when Student was learning remotely, these above considerations find application to this case. Parent’s Attorney addressed this at the hearing, specifically mentioning that in the IEP post-COVID no extra support, specifically 1:1 paraprofessional or behavior management was provided to Student. Parent’s representative asserts that the IEPs reflected a disconnect between what the CSE thought was appropriate for the Student verses what the Student actually required.

The SRO however has indicated where that is the case, the CSE should have the first opportunity to consider Student’s needs and whether any additional services may be warranted because of the pandemic. My award does not seek to alter the procedure that must be followed regarding compensatory education services arising out of a change in the delivery of instruction during the Covid-19 pandemic (which is factored into my calculation below). Given that the DOE has not yet made such determination even though there have been subsequent CSE meetings and IEPs developed, I have ordered the DOE to comply with the policy and make a FOFD determination but have also catered for the situation where the DOE fails to do so, by providing a conditional award for the period Student was impacted (“the Conditional Award”).

Parent is also seeking compensatory education or compensatory services for the District’s failure to provide Student with a FAPE. 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. ^[45]

An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. As the DOE provided the Student with a FAPE for the 2020-2021 and 2021-2022 school years, the issue with regards to compensatory services turns on the issue with regards to remote learning during the COVID-19 Pandemic. Accordingly, a conditional award of compensatory services is more appropriate.

A compensatory education award can be crafted by either a “quantitative” or “qualitative” approach. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation). Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits).

The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.^[46] Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA ^[47].This case lends itself more appropriately towards the quantitative approach as FOFD connected to the period of the deprivation, namely during remote learning as a result of the COVID-19 Pandemic.

Parents attorney made clear the compensatory hours that students should be awarded with respect to the type and scope of compensatory services that would be appropriate if a FAPE deprivation were found to have occurred. Parent provided detailed independent evaluations whom I find to be sufficiently qualified to express the opinions provided. The reports give detailed breakdowns, properly supported and incorporating their recommendations for the ultimate recommendations proposed for Student. Specifically, the award for compensatory education requested is: 138 of compensatory social skills training (SST), 46 hours of compensatory parent counseling and training (PCAT), 184 hours of compensatory SLT, 70 hours of compensatory AT (assistive technology) training, 138 hours of compensatory OT, and 23 hours of PT.

The conditional award indicated above will apply to the portion of time where the Student was receiving instruction remotely and be pro-rated to half the requested award for the 2021-2022 school year which was remote instruction.

These considerations have factored into my calculation of compensatory hours sought and awarded as follows (rounding has been used in the calculation, where required): Conditional Award: Compensatory educational & related services (Covid related)

a. 69 hours of social skills training, b. 23 hours of parent counseling and training, c. 92 hours of speech-language therapy, d. 35 hours of assistive technology training, e. 69 hours of occupational therapy, and f. 11.5 hours of physical therapy; and it is further

2022-2023 Unilateral Placement

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)).

Prong I

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“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 and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).

As to Prong I of the Burlington/Carter standard, the DOE failed to meet its burden. While the DOE submitted 14 documents into the record, a review of same offers no explanation as to how the CSE made its recommendations, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating that IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child”. Endrew F., 137 S.Ct. at 1002. In addition, the DOE failed to provide a placement in conjunction with the recommended program in the IEP. Therefore, I find that the DOE failed to offer the Student FAPE for the 2022-2023.

Prong II

A private school placement must be "proper under the Act." Florence County Sch. Dist. FOFD

Four v. Carter, 510 U.S. 7, 12, 15 (1993); Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985). This means that the private school must offer an educational program which met the student's special education needs. See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate." Gagliardo, 489 F.3d at 112)" Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement.'" Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006)

Parents need not show that the placement provides every special service necessary to maximize the student's potential. Frank G., 459 F.3d at 364-65. When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115. A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student. 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 CFR 300.39(a)(1); 8 NYCRR 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement. No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65). FOFD

In reviewing the remaining evidence, the weight of the evidence establishes that Student’s individual special education needs were addressed by the private school and that the instruction offered was "reasonably calculated to enable the child to receive educational benefits." Frank G., 459 F.3d at 364. I note that the DOE offered no specific arguments concerning the appropriateness of Parent’s unilateral placement, nor challenging the equities in this action. I find that Parent has met their burden in proving that the private program offered an educational program which met Student’s need under Prong II of the Burlington/Carter standard.

Equities

Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant." Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009) In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the Department with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).

Here, Parent provided the necessary Ten-Days’ Notice of their concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year. Therein, Parent detailed specific concerns. (P-N) Parent furthermore, gave the DOE notice of their intention to unilaterally place the Student at the Private School. Id. No evidence was submitted at hearing describing the DOE’s response to the Ten-Day Letter.

By way of relief, Parent seeks reimbursement for their private school tuition costs and to have the balance of unpaid tuition sent directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA. See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)(parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”) Having FOFD reviewed parents affidavit, the program description, schedule and enrollment contract, I find that the unilateral tuition costs far exceed the Parent’ income. (P-T, P-Q, P-R, and P-P) Equity demands that the DOE fund Student’s Private School tuition in this instance.

I find no issue with the reasonableness of the costs, including tuition, associated with the Private School. Student attended the Private School during the years at issue. Moreover, I find that the weight of the evidence establishes that Parent cooperated with the DOE and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Overall and after considering the record at hearing, I find that the equities support Parent’s claim for tuition reimbursement and direct funding.

DECSION AND ORDER

Based on the above findings of fact the DOE provided the Student with a FAPE for the 2020-2021 and 2021-2022 school year. Parents requested compensatory relief is denied. The DOE did not provide Student with a FAPE for the 2022-2023 school year and Parent’s claim for tuition reimbursement for the Student’s unilateral placement, as well as direct tuition funding, at the Private School is GRANTED. It is hereby:

2. ORDERD THAT the CSE convene a review meeting within 14 days of this order, to revise Student’s program and prepare an appropriate IEP, using the IEE’s, namely the Neuropsychological Evaluation conducted on May 18, 2023, the Speech-Language Evaluation conducted on March 4, 223, The Assistive Technology Evaluation conducted on March 21, 2023, the Occupational Therapy Evaluation conducted on March 22, 2023, the Functional Behavior Assessment conducted on April 10, 2023, and the Physical Therapy Evaluation conducted on April 12, 2023, that includes at a minimum: a. Accurate and detailed PLOPs, b. Specific, meaningful, and measurable goals tailored to the Student based on the Student’s current academic and functional levels, c. A new and appropriate educational placement, d. Appropriate related services including occupational therapy, speech language therapy, counseling including parent counseling and training, hearing services, in FOFD line with the recommendations by the independent evaluations and at the recommended frequency and service delivery recommendations e. AT Hardware and software recommended in the AT evaluation, as closely as possible or an equivalent substitute that is no less functional, which the DOE shall provide or fund, at the DOE’s election, as part of the Student’s educational program, f. In the CSE team’s discretion, a safety para-professional, and g. Appropriate modifications and accommodations to be listed as part of the Student’s IEP; and it is further

3. ORDERED that the CSE shall convene a meeting within 30 (thirty) days of the date of this Order to have the first opportunity to consider Student's needs and whether any additional services may be warranted as a result of the pandemic for a loss of skill during school closures and the delivery of instruction and services to Student remotely. The CSE shall make such determination no later than 60 (sixty) days from the date of the meeting convened for that purpose; and it is further

4. ORDERED that, should the CSE fail to comply with #1 of this Order, than and only in that event, the DOE shall fund the following additional compensatory services for Student (i.e. the Conditional Award shall then become unconditional), a. 69 hours of social skills training, b. 23 hours of parent counseling and training, c. 92 hours of speech-language therapy, d. 35 hours of assistive technology training, e. 69 hours of occupational therapy, and

f. 11.5 hours of physical therapy; and it is further

5. ORDERED that should the Conditional Award above (#3) become unconditional, then the DOE shall fund the above compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by duly NYS licensed (or where appropriate certified) providers of the Parent’s own choosing at the providers’ customary and regular rates (i.e. “an enhanced rate”), or market rate, by issuing payment directly to FOFD the provider within (30) thirty days upon the submission of invoices for services rendered; and it is further

6. ORDERED that the bank of compensatory services set out in #3 above of this Order shall not expire until two years from the date of this Order; and it is further

7. ORDERED that Parent’s claim for tuition reimbursement for the Student’s unilateral placement, as well as direct tuition funding, at the Private School is GRANTED for the 2022-2023 school year as follows:

a. The District shall reimburse the Parent in the amount of $800.00, and

b. The District shall directly fund the balance of the Student’s tuition at the Private School in an amount not to exceed $111,200.00; and

c. The District shall reimburse the Parent for the cost of tuition at the Private School as described above within 30 days of submission of proof of payment; and,

d. The District shall pay to the Private School the remainder of any tuition funds, totaling $111,200.00 30 days of submission of a signed, notarized bill encompassing tuition costs owed by the Parent to the Private School for the Student’s attendance at the Private School for the 2022-2023school year.

So Ordered.

Dated: July 4, 2023

Elana Soleimani, Esq Impartial hearing Officer

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.

If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.

An appealing party's request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov. FOFD

PARENT EVIDENCE

A. Exhibit Name Date Pages Parent’s Impartial Hearing Request 11/21/22 7 pages

B. Individualized Education Program 11/24/20 21 pages

C. DOE Classroom Observation 10/20/21 2 pages

D. DOE Psychoeducational Evaluation 11/15/21 3 pages

E. Individualized Education Program 12/21/21 27 pages

F. Rate Sheets Undated 3 pages

G. Parent Letter 10/28/21 3 pages

H. Independent Neuropsychological Evaluation 05/18/23 19 pages

I. Independent Speech Language Evaluation 03/04/23 12 pages

J. Independent Assistive Technology Evaluation 03/21/23 12 pages

K. Independent Occupational Therapy Evaluation 03/22/23 20 pages

L. Independent Functional Behavior Assessment 04/10/23 17 pages

M. Independent Physical Therapy Evaluation 04/12/23 13 pages

N. Ten Day Notice Letter 06/17/22 4 pages

O. Manhattan Star Academy Enrollment Contract 05/20/22 8 pages

P. Tuition Affidavit 02/09/23 1 page

Q. [REDACTED] Program Description Undated 5 pages

R. [REDACTED] Student Schedule Undated 2 pages

S. Affidavit of [REDACTED] 05/23/23 7 pages

T. Affidavit of [REDACTED]05/25/23 3 pages

IHO EVIDENCE

None

DISTRICT EVIDENCE

1. FOFD # DOCUMENT DESCRIPTION DATE PAGE IEP 11/28/2019 26 pages District

2. SLT Consent for Teletherapy 03/24/2020 1 page District

3. OT Consent for Teletherapy 03/30/2020 1 page District

4. PT Consent for Teletherapy 03/31/2020 1 page District

5. Special Education Remote Learning Plan 04/02/2020 3 pages District

6. OT Clinical Guide 05/05/2020 2 pages District

7. SLT Consent for Summer Teletherapy 07/16/2020 1 page District

8. PT Summer Consent for Teletherapy 07/13/2020 1 page District

9. OT Consent for Summer Teletherapy 07/14/2020 1 page District

10. Related Service Records 2020-2022 24 pages District

11. Prior Written Notice 12/05/2020 4 pages District

12. Special Education Recovery Services Plan 11/12/2021 3 pages District

13. OT Affidavit 05/24/2023 3 pages District

14. SLT Affidavit FOFD APPENDIX [REDACTED] Information Term Used In FOFD [REDACTED] Student [REDACTED] Parents/Guardians [REDACTED] Parent Attorney/Representative [REDACTED] District Attorney/Representative [REDACTED] Public School [REDACTED] Private School [REDACTED] Interpreter [REDACTED] Special Education Teacher DOE [REDACTED] Head Teacher Private School [REDACTED] Occupational Therapist [REDACTED] Speech-Language Therapist 05/24/2023 4 pages District

Footnotes

[138] hours of compensatory OT, and 23 hours of compensatory PT. Witnesses: DOE Occupational Therapist (OT) witness testified via affidavit and upon further questioning as follows (D-13) OT is board certified in OT and has a NYS Occupational Therapy License. As an OT with the DOE some of her duties include; screening, evaluation, and treatment of students with various disorders, developing and participating in IEP meetings and collaborating with staff and families. OT is familiar with Student because she provided her with OT services since the 2021- 2022 school year at Public School. The OT services were in the form one 30-minute group push-in and pull-out (as needed), session per week in ELA. OT also participated in the December 23, 2021, IEP review for the Student. Student needed first/then visual schedules, reward charts, timer, and positive reinforcements. Student benefited from a visual model of the completed task and a visual checklist to review work. OT mainly supported Student with self-monitoring, sustained attention, and handwriting. OT assisted Student with editing and reviewing written work, ability to complete work and more. The IEP from December 23, 2021, recommended that

[1] D-13 ¶10

[2] Id.

[3] D-13 ¶12

[4] Id.

[5] D-13 ¶13 FOFD the beginning of the 2021-2022 school year and 3-4 sentences by the end of the 2022-2023 school year.

[8] D-14 ¶11

[9] D-14 ¶13

[10] D-14 ¶15

[11] The COVID-19 pandemic

[12] Tr. P. 78 L21-25 13 P-T ¶8 FOFD services offered by the DOE, and Student therefore needs compensatory services to address those deficits. Therefore, the Parent respectfully requests that the IHO find that the DOE denied the Student a FAPE for all the school years at issue and order the Parents requested relief in full, including the compensatory services and the full tuition funding to Private School or the 2022 to 2023 school year to remedy the denial of a FAPE.

[14] Rowley, 458 U.S. at 206-07; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005].

[15] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017)

[16] Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189

[17] Endrew F., 580 U.S. at 404

[18] 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]; see Grim, 346 F.3d at 379.

[25] see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory

[26] Wenger, 979 F. Supp. at 151

[27] see Reid 401 F.3d at 524; Puyallup Sch. Dist., 31 F.3d at 1496-97; Application of a Student with a Disability, Appeal No. 19-120; Application of a Student with a Disability, Appeal No. 18- 002.

[28] Endrew F. v. Douglas County School District, 137 S. Ct. at 1002 (2017).

[29] PT goal stated as follows: PT: In one school year, [Student] will be able to independently participate in activities that require bilateral coordination, she will be able to perform coordinated 10 jumping jacks fast without stopping, she will be able to run 200 feet without stopping or falling while changing directions in order to fully participates in gym and recess.

[30] Speech/Language goal stated as follows: [Student] will increase speech intelligibility by using appropriate rate and fluency, articulation to produce speech sounds at the 2-word phrase and sentence levels, and speaking volume when provided with decreasing models and cues.

[31] Speech language goal stated as follows: [Student] will accurately decode or read out consonant-vowel pattern words (CVC as in 'cat'; CCVC as in 'frog'; CVCC as in 'fish') when presented in words and single-sentences given verbal, visual, and kinesthetic cues.

[32] PT goal stated as follows: In one school year, [Student] will improve her endurance evidence by her ability to participate in 30 minutes physical activities with maximum 2 rest breaks.

[33] Rowley, 458 U.S. at 189, 199; Grim v. Rhinebeck Central School Dist., 346 F.3d 377, 379 [2d Cir. 1998]; Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 [2d Cir. 1998].

[34] Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130.

[35] Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192.

[36] R.E., 694 F.3d at 186; C.L.K. v. Arlington Sch. Dist., 2013 WL 6818376, at *13 [S.D.N.Y. Dec. 23, 2013].

[37] 34 CFR 300.303[a][2]; 8 NYCRR 200.4[b][4].

[38] 34 CFR 300.303[b][1]-[2]; 8 NYCRR 200.4[b][4].

[39] 8 NYCRR 200.4[b][3].

[40] 20 U.S.C. § 1414[b][2][A]; 34 CFR 300.304[b][1][ii]; see Letter to Clarke, 48 IDELR 77 [OSEP 2007].

[41] 20 U.S.C. § 1414[b][2][C]; 34 CFR 300.304[b][3]; 8 NYCRR 200.4[b][6][x].

[42] 20 U.S.C. § 1414[b][3][B]; 34 CFR 300.304[c][4]; 8 NYCRR 200.4[b][6][vii].

[43] 34 CFR 300.304[c][6]; 8 NYCRR 200.4[b][6][ix]; see Application of the Dep't of Educ., Appeal No. 07-018.

[44] See Application of a Student with a Disability, Appeal No. 22-031.

[45] P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].

[46] See for example E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.

[47] P. v. Newington, 546 F.3d 111, 123 [2d Cir. 2008].