Skip to main content
Special Education Law
DECISIONParent PrevailedIHO Case No. 243804

New York City Department of Education, Impartial Hearing Decision

July 8, 2023·Mercedes Cesaratto·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 593454- NYC: 243804

FINDINGS OF FACT AND DECISION

Student’s Name [1]: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: New York City Department of Education Hearing Requested by: [REDACTED] (“Parent(s)”)

Request Date/Date Complaint Filed: December 14, 2022

Date(s) of Hearing: March 24, 2023; April 13, 2023; April 26, 2023; & May 31, 2023

Actual Record Closed Date: August 6, 2023

Date of Decision: August 7, 2023

Hearing Officer: Mercedes Cesaratto

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 24, 2023

For the Student:

[REDACTED], Esq.

[REDACTED] - Director of Provider Services – [REDACTED] ([REDACTED] )

For the Department of Education:

[REDACTED], Esq.

[REDACTED] - DOE School Psychologist

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 13, 2023

For the Student:

[REDACTED], Esq.

[REDACTED] -Parent

For the Department of Education:

[REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

APRIL 26, 2023

For the Student:

[REDACTED], Esq.

[REDACTED] -Principal of Attending School

For the Department of Education:

[REDACTED], Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

MAY 31, 2023

For the Student:

[REDACTED], Esq.

For the Department of Education:

[REDACTED] Esq.

INTRODUCTION

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about December 14, 2022 (Ex. P-A). 2 The Parent alleges that the New York City Department of Education (“DOE/District”) failed to provide the Student with a Free Appropriate Public Education (FAPE) for the 2022-23 school year (“SY at Issue” or “2022-23 School Year”). (Ex. P-A) The Parent alleges the DOE committed multiple procedural and substantive violations of the Individuals with Disabilities Education Act (hereinafter, “IDEA”),including but not limited to the following, the DOE failed to: (i) recommend an appropriate placement and program for the Student; (ii) provide the Parent with a copy of the August 9, 2022 IEP; (iii) provide the Parent with a meaningful opportunity to participate in the development of the Student’s educational program; (iv) provide the Student with appropriate AT training; and (v) consider the evaluative data prior to developing the Student’s educational program. As relief, the Parent is requesting the following: funding for the Student’s tuition at the [REDACTED] (“Attending School”) including transportation, where the Student was unilaterally placed for the 2022-2023 school year; compensatory education and services from July 2022 through October 2022, including transportation costs to and from the services, in the form of metro cards; 40 hours of AAC training for the Student and Parent; and an amendment to the Student’s IEP to include an iPad with 10.[2] inch display with Proloque2Go speech generating application. (Ex. P-A)

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.

PROCEDURAL HISTORY

On December 14, 2022, a DPC was filed against the New York City Department of Education (“DOE/District”) by the REDACTED (“Law Firm”), as attorney for Parent (“Parent”) and on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (“IDEA”, or the “Act”) [20 U.S.C. § 1415(f)] and Section 4404(1) of the New York State Education Law (“Education Law”). (Ex. P-A) The DPC asserts that the DOE failed to provide the Student with a FAPE by engaging in both procedural and substantive violations for the 2021-2022 school year. (Ex. P-A)

On January 23, 2023, I was appointed to hear this matter. On February 22, 2023, a pre-hearing conference was held, Parent was represented by [REDACTED], Esq. (“Parent Attorney”) and the DOE was represented by [REDACTED], Esq. (“DOE Attorney”). A due process hearing was held on the following dates: March 24, 2023; April 13, 2023; April 26, 2023; and May 31, 2023. The DOE offered three documents into evidence over the objection of Parent’s attorney. The DOE subsequently withdrew one of the documents because it was a duplicate of the Parent’s exhibit. (Tr. 37) I entered DOE exhibits 2-3 into evidence over the objection of Parent’s attorney. The Parent offered exhibits P-A through P-II, without objection from the DOE. I entered Parent’s exhibits P-A through P-II into evidence. The DOE presented one witness, DOE School Psychologist, over the objection of the Parent’s attorney. Parent submitted three witness affidavits and presented the witnesses for cross examination: Parent, Principal of Attending School, and Director of Provider Services. Both the DOE and Parent presented opening statements. (Tr. 45-46) The Parent and the DOE submitted closing briefs attached as an IHO exhibits. A list of the documentary evidence in this proceeding is appended to this decision.

ISSUES

The issues to be addressed are whether (i) the District met their burden in providing the Student with a FAPE for the 2022-2023 SY (under Prong I); (ii) the Parent demonstrated that the unilateral placement at the Private School is an appropriate placement for the Student (under Prong II); (iii) the equities favor the Parent and tuition reimbursement/direct funding of the Private School tuition is an appropriate remedy (under Prong III); and (iv) the Parent is entitled to the compensatory relief requested.

FINDINGS OF FACT

The DOE’s Committee on Special Education (“CSE”) classified the Student as having a disability classification of “Autism”, the Student’s classification and entitlement to special education programming is not in dispute. (Ex. P-B-1) The Parent’s DPC has referenced prior IHO’s who have rendered numerous decisions regarding alleged violations of FAPE. (Ex. P-A) The Student has been the subject of prior Findings of Fact and Decisions (FOFD’s), pendency, and interim orders issued by prior IHO’s finding the DOE failed to provide the Student a FAPE during the following school years:

2015-16; 2016-17; 2017-18;[3] and the 2019-20; 2020-21; 2021-2022 [4]. (Ex. P-II) The Parent has submitted IHO REDACTED decision marked as exhibit P-Z along with the prior DPC dated November 5, 2021 corresponding to IHO REDACTED decision as exhibit P-II. 5 On June 14, 2018, the DOE referred the Student to the Central Based Support Team (“CBST”) to secure placement in a Non-Public School (“NPS”). The Student began attending the NPS on September [5], 2018 in a 12-month program, in a classroom with six students, one teacher, and two paraprofessionals, (“6:1+2”) and the Student received an individual para-professional provided by the NPS. (Ex. P-II) Parent filed the prior DPC dated November 5, 2021, alleging various violations which included that the DOE had failed to recommend an appropriate program and placement for the Student. The Parent alleged the NPS was an inappropriate placement for the Student because the NPS did not provide the Student with the individual ABA the Student required as recommended by the prior evaluations; NPS did not provide the Student with a 1:1 paraprofessional as mandated in the Student’s prior IEP; the NPS created an unsafe and dangerous environment resulting in injuries sustained by the Student which required hospitalization when the Student REDACTED, and another incident where the Student REDACTED. (P- II, U, and Tr. 218) In the hearing before IHO REDACTED, Parent submitted an IEP dated October 21, 2021, as part of their evidence because the October 2021 IEP was in place during the 2021-2022 school year. (Tr. 233) The claim of denial of FAPE included the 2021-2022 school year which was one of the three school years litigated before IHO REDACTED. As mentioned, the Student was and is currently in a 12-month program, meaning the start of school year is on July 1st and ends on June 31st .

On May 24, 2022, IHO REDACTED issued an interim order for bilingual neuropsychological evaluation, a speech and language evaluation, an AT evaluation, an OT evaluation, a PT evaluation, a bilingual ABA Assessment, a bilingual FBA and BIP. (Ex. P-A) Parent’s attorney stated, “These evaluations were part of a prior impartial hearing. The District had access then from that. But I know they were separately sent by the Parent…” (Tr. 95) Therefore, all these evaluations were submitted to the DOE in the hearing conducted before IHO REDACTED. (Tr. 95) Parent’s attorney testified that the Parent sent the evaluations to the DOE in July, “So, the Parent’s position is that she sent the independent evaluations over to the District in July.” (Tr. 231-232). October 4, 2021 IEP and August 9, 2022 IEP were in place during 2022-2023 School Year During the 2022- 2023 school year, the Student was a 12-month Student. The start of the school year commenced on July 1, 2022 and ended on June 31, 2023. The DOE stated the IEP dated October 4, 2021 was in effect at the start of the 2022-2023 school year, meaning July 1, 2022. (Tr. 232) (Ex. P- B1) However, the position of the DOE is that the IEP dated August 9, 2022 “was in effect at the time the Student was unilaterally placed at the [Attending School], it is the operative IEP at issue in this hearing.” (Ex. D-2; Tr. 170,233; See DOE Brief, IHO Ex. II). The August 9, 2022 IEP recommended a 12-month program in a 6:1+2 class in a NYS Approved Non-Public School (NPS), occupational therapy-individual 3 times a week for 30 minute sessions, physical therapyindividual for 2 times a week for 30 minutes, speech and language – individual 3 times a week for 30 minute sessions, parent counseling and training in a small group 1 time a month for 1 hour sessions, a paraprofessional behavior support full time on an individual basis, a Nova Chat 8 Dedicated Plus as the AT devise to be used on a daily basis throughout the day, for the 2022-2023 school year. (Ex. D-2 at 32). The DOE also contends that Parent’s claim of res judicata does not apply to the October 4, 2021 IEP because this DPH involves a different school year then the school year before IHO REDACTED and the October 4, 2022 IEP overlapped both school years. (See DOE Brief IHO-II)The August 9, 2022 IEP recommended the same placement, the NPS, which IHO REDACTED had found to be inappropriate for the 2021-2022 school year. The August 9, 2022 IEP also reported under the “Present Levels of Performance And Individual Needs” (PLOP) the following: “At the IEP meeting, the Parent reported that she is not satisfied with the progress that [Student] is making. She feels that [NPS] is not meeting [Student’s] needs and will be requesting a reevaluation as soon as possible. Additionally, she feels that the high teacher turnover rate at the school has furthered [Student’s] inability to make academic gains.” (Ex. D-2 at 3) In support of the recommendations made in the August 9, 2022 IEP, the DOE submitted the Prior Written Notice dated August 12, 2022 which states as follows: “At the IEP meeting held on August 9, 2022, to which you were invited, the assessments and material identified below were reviewed and discussed and it was determined that your child meets the eligibility criteria for an educational disability as defined in Part 200 of the regulations of the Commissioner of Education. In addition, an Individual Educational Program was developed recommending the special education services that will meet his/her needs educational needs.” (Ex. DOE 3 at 2) The only 2 assessments and materials identified by the CSE/ IEP team used to develop the Student’s IEP were the IEP dated October 4, 2021, and a Teacher Report dated April 11, 2022. (Ex. D- 3 at 2)

Parent’s position is that the IEP dated October 4, 2021, was reviewed in a prior proceeding that encompassed the 2021-2022 school year under case # REDACTED and the October 4, 2021 IEP was found to be inappropriate by IHO REDACTED. Parent argues that since the prior IHO found the DOE to have denied a FAPE to the Student for the 2021-2022 school year, the DOE cannot defend the October 4, 2021, IEP under the doctrine of res judicata. Parent further argues the DOE failed to defend the October 4, 2021, IEP in the hearing. (See Parent’s Brief- IHO-I) Parent further argues that the October 4, 2021, IEP was the operative IEP because it was the only one in place on July 1, 2022, the start of the school year for the Student. The Parent argues the August 9, 2022 should not be considered because it was developed a month after the start of the school year, the Parent did not receive a copy of the IEP and it recommended an inappropriate program and placement for the Student. The Parent argues the IEP developed on August 9, 2022, recommended the same NPS placement and virtually identical program, the prior IHO had previously found to be inappropriate and found the Student had been denied a FAPE in 2021-2022 school year. DOE Psychologist The DOE presented the testimony of the DOE Psychologist who did not take part in developing the August 9, 2022 IEP, and did not attend either the IEP meeting on October 4, 2021 or August 9, 2022. The DOE Psychologist testified that she never evaluated the Student or had any communications with the Parent. (Tr. 75, 109) The DOE Psychologist testified that she believed the August 9, 2022, IEP was appropriate based on the PLOP section of the IEP. (Tr. 63, 65-67, 80, 111) The PLOP section of the IEP only referenced a Teacher’s Report dated April 11, 2022 and did not include any the most recent evaluations the Parent provided the DOE. (Ex. D-2 at 1; Ex. P- C, D, E, F, G, H, I, J; Tr. 73) The DOE Psychologist also testified that the NPS provided an “ABA like” program or an “ABA type” program to address the Student’s behavior. (Tr. 61, 69) The DOE Psychologist testified that ABA is “like a brand”. (Id.) Parent The Parent testified in the merits hearing through a Spanish interpreter. Parent states she was informed on August 4, 2022 via email that the DOE intended to hold an IEP meeting on August 9, 2022. (Ex. P-AA) On August 5, 2023, Parent quickly responded and emailed all the independent evaluations to the DOE and explained that she wanted all the attached evaluations to be considered during the August 9, 2022 IEP meeting. (Ex. P-BB - C, D, E, F, G, H, I, J). Parent explained this was not the first time she had sent the most recent independent evaluations that were conducted on the Student to the DOE. (Ex. P-D, E, F, G, H, I, J) The Parent testified she does not recall the exact date she sent the evaluations to the DOE but she did send them in July 2022. (Tr. 183, 194) Parent further testified that she sent the independent evaluations to the DOE again on August 9, 2022, and on August 15, 2022, because, “We had an IEP meeting regarding [Student]. And I wanted these documents to be included in the meeting. But they told me it was not possible. So, I had to resend them for a new meeting.” (Ex. PC, Tr. 183-184) Parent also testified that she never received notification from the DOE regarding an IEP meeting to discuss the independent evaluations after she had repeatedly sent the DOE the evaluations. (Tr. 184) Parent further testified that she attended the IEP meeting on August 9, 2022, but never received a copy of the IEP. (Ex. P-C, Tr. 184, 191) Parent also testified that the first time she saw DOE Ex. 2, the IEP dated August 9, 2022 was during the merits hearing on April 13, 2023. (Tr. 186) The Parent also testified she had never received DOE Ex. 3, the Prior Written Notice dated August 12, 2022. (Tr. 187. 199-200)

Parent testified she attended the August 9, 2022, IEP meeting and she said that the during the IEP meeting the IEP team only discussed the Student’s goals and did not discuss the independent evaluations she had sent the DOE/CSE. (Ex P-C, Ex. P- C, D, E, F, G, H, I, J; Tr. 188) Parent states she told the CSE/IEP team that she wanted the evaluations to be considered in developing the Student’s IEP. (Tr. 188, 190) Parent testified that the IEP team denied her requests and told the Parent to request another IEP meeting to discuss the evaluations and that this IEP meeting was only to review the Student’s goals. (Tr. 188, 209) Parent also raised her deep concerns about the NPS with the IEP team. Specifically, the Parent testified she informed the IEP team that she was concerned about the Student’s delays and the constant turnover rate of the teachers at the NPS. (Tr. 189, 209) Parent testified that the frequent changes of staff at the NPS caused the Student distress, frustration, and disconnection because the Student was unable to adapt to the constant changes at the NPS. (Tr. 189) The Parent testified the shortage of staff at the NPS caused the Student to have delays in speech, OT, and physically and the Student started to display a lot of maladaptive behaviors. (Tr. 189) The Parent further testified the NPS informed her they were looking for a paraprofessional for the Student because they did not have one for the Student. (Tr. 190, 211) The Parent informed the IEP Team that she wanted the Student to be placed in a different school, other than the NPS the Student was attending. (Tr. 209) Parent testified, “In the meeting that I had in August of 2022, the last meeting in August of 2022, I told them specifically that I wanted to change [Student’s] to a different school.” (Tr. 215) Parent then described a terrifying incident that occurred in August while the Student was at the NPS as another reason why she believed the NPS created a dangerous environment for the Student. Parent testified, “[Student] REDACTED and then ran to the school’s REDACTED. It was a very difficult situation because REDACTED. We had to be many hours in REDACTED.” (Ex. P-U, Tr. 218) The Parent testified that when this incident occurred the Student did not have a paraprofessional and he had not had one for a very long time , well over three months. (Tr. 218) Parent also testified that she was unsure whether the Student had been receiving any mandated services from July 2022 until October 2022 because the NPS had a constant change in staff and the NPS never let her know if the Student was receiving any services. (Tr. 219)

Parent testified the Student is non-verbal and cannot communicate verbally and the Student has not received the assistive technology device (AT) recommended by the independent assistive technology evaluation. (P-U) The Parent further testified the Student lacks safety awareness, for example, if a door is left open the Student will walk out, walk right into a traffic street without looking, put hands on a burning stove, climb and jump off things. (Ex. P-U) The Student cannot dress himself, or get ready for school on his own, the Student requires constant supervision. When the Student experiences frustration, he bites his fingers, cries, throws a tantrum, tries to escape and jumps off chairs. (Ex. P-U) The Parent testified the Student is not toilet trained and cannot go to the bathroom by himself. (Ex. P-U, Tr. 220) The Parent further testified that the Attending School is working with the Student to make progress in helping the Student get toilet trained. (Ex. T, Tr.221) The Parent reported that in March of 2023, when the Student was in the Attending School, the Student had actually managed on three occasions to sit on the toilet and once he actually urinated in the toilet. (Tr. 221-222) The Parent found this promising progress because the Student had a real aversion to the bathroom.

Parent further testified that no one from the DOE communicated with her after the August 9, 2022 IEP meeting. (Tr. 191) Parent referenced the letter dated September 27, 2022, that Parent sent to the DOE advising the DOE that Parent was not agreeing to the inappropriate placement/program at the NPS and that absent an appropriate placement and program for the Student, the Parent was going to enroll the Student at the Attending School and seek funding for the tuition for the 2022-2023 school year. (Ex. P-C) Principal Attending School The Principal of the Attending School submitted her CV and testified via affidavit and direct testimony concerning the Attending School program. (Ex. P-T, V). The Principal described the Attending School as a 12-month special education school primarily geared towards children on the Autism Spectrum who are aged 5 through 21 years old. All the teachers at the Attending School, including support staff, are trained in the following: ABA methodology by the school board-certified behavior analyst (“BCBA”), the implementation of behavior intervention programs (BIP), sensory diets, specific curriculums, developing IEP goals; Assessment of Basic Language and Learning Skills (ABLLS), non-violent crisis intervention, and collaborative problem solving. (Ex. P-T) The Principal is familiar with the Student because the Student is attending the Behavioral, Academic, & Social Enrichment (BASE) program at the Attending School and she oversees and supervises the Student’s teacher and service providers and is up to date on the Student’s progress academically, socially, and behaviorally. The Student is in a 6:1:1 class, uses an augmentative alternative communication device to communicate. The Student has an individual para-professional to keep the Student safe from elopement, climbing on furniture, ingesting inedible objects and general safety. (Ex. P-T) The Principal testified that the Student is currently in a small class with five adults and four students. (Tr. 240) The Student is also receiving speech language therapy individually 4 times a week for 30-minute sessions, occupational therapy individually 3 times a week for 30-minute sessions, physical therapy 2 times a week individually for 30-minute sessions and the Parent receives parent training 1 time per month for 60 minutes. (Ex. PT) The Principal testified that every student has their own individualized ABA program, and that ABA is used throughout the day in all the classrooms. (Tr. 240) The Attending School has an IEP that was developed for the Student and the Attending School also uses 45 Day reports and an initial assessment that is developed with everyone on the Student’s therapeutic team including related service members. (Tr. 242) The Principal testified the Student is non-verbal and uses his AAC device to communicate, the Student is receiving ABA in order to get the Student potty trained. (Tr. 245, 255) The Student can become over stimulated, frustrated and engage in self-injurious behavior but the Attending School is using collaborative problem-solving ABA to address the Student’s maladaptive behaviors. (Tr. 246) The Attending Principal testified she has observed the Student improve in how the Student greets his peers, especially in the morning. The Student loves coming to school, the Student is smiling, and wants to do the morning meeting. The para-professional does prompt the Student but the Principal has noted an increase in the Student’s attention. (Tr. 246, 254) The Principal testified the Student’s teacher has a New York State certification to teach students with disabilities and a Master’s degree. (Tr. 248)

CONCLUSIONS OF LAW

A. Burden of Proof

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c) [6]; see also R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).

B. Free Appropriate Public Education The IDEA and the New York State Education Law provide that children with disabilities are entitled to a Free Appropriate Public Education (FAPE). 20 U.S.C. § 1400 (d)(1)(A); Educ. Law §§ 4402(2)(a), (b)(2). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are:

(1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and

(2) to ensure that the rights of students with disabilities and parents of such students are protected. 20 U.S.C. § 1400(d)(1)(A)-(B). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Plan (IEP). 20 U.S.C. §§ 1401(9), (29); see also Bd. Of Educ. Of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-207 (1982).

A school district has offered a student a FAPE when: (i) the board of education complies with the procedural requirements set forth in the IDEA; and (ii) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Rowley, 458 U.S. at 206-07. "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206; see also T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009).

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. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017). As the Supreme Court has stated, “After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement” (citing §§ 1414(d)(1)(A)(i)(I)–(IV)). Id.

“Multiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not." R.E., 694 F.3d at 190-191. Not all procedural errors, however, render an IEP defective and warrant relief. See Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003). If procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits. 20 U.S.C. § 1415(f)(3)(E)(ii); 34 CFR 300.513(a)(2); 8 NYCRR 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012).

School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d) (“FAPE means special education and related services that . . . [a]re provided in conformity with an individualized education program (IEP) that meets the requirements of §§ 300.320 through 300.324”). School district actions that constitute a “material failure of implementing the IEP” deny a FAPE. See A.P. v. Woodstock Bd. Of Educ., 370 Fed. Appx. 202, 205 (2d Cir. 2010) (citing Van Duyn ex. Rel. v. Van Duyn v. Baker Sch. Dist. 5J, 502 F.3d 811, 821 (9th Cir. 2007) (“A material failure occurs when the services provided to a disabled child fall significantly short of those required by the IEP”).

C. Parent’s Private Placement Parents who think that their child is not receiving a FAPE may pay for private services and seek reimbursement from the school district for “’expenses that it should have paid all along and would have borne in the first instance had it developed a proper IEP.'" M.H. v. New York City Dep't of Educ., 685 F.3d 217, 246 (2d Cir. 2012) (quoting, T.P. ex rel. S.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 252 (2d Cir.2009) (quoting Sch. Comm. of Burlington v. Dep't of Educ. of Mass., 471 U.S. 359, 370-71, (1985)). In making a claim for reimbursement, "the burden shifts to the parents to demonstrate that the school in which they have chosen to enroll their child is appropriate." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d. Cir. 2007); M.H., 685 F.3d at 245. The parent has the burden of proving that the unilateral placement provided “educational instruction specifically designed to meet the unique needs” of the student. Gagliardo, 489 F.3d at 112. 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; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000).

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. [T]he issue turns on whether a placement – public or private – is ‘reasonably calculated to enable the child to receive educational benefits.’” Gagliardo, 489 F.3d at 112 (quoting Frank G. v. Bd of Educ., 459 F.3d 356, 364 (2d Cir. 2006)). A private placement meeting this standard is one that is “likely to produce progress, not regression.” Gagliardo, 489 F.3d at 112 (quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 [2d Cir. 1998]).

Parents are, therefore, not barred from reimbursement even where a private school they choose does not meet the IDEA definition of a FAPE. Frank G., 459 F.3d at 364. In satisfying their burden, Parents need not show that the private placement: (i) meets state education standards or requirements; (ii) provides certified special education teachers; or (iii) provides for an IEP. Id. (citing Florence County Sch. Dist. Four v. Carter, 520 U.S. 7, 14 [1993]). “IDEA's requirement that an appropriate education be in the mainstream to the extent possible ... remains a consideration that bears upon a parent's choice of an alternative placement and may be considered by the hearing officer in determining whether the placement was appropriate.” M.S. ex rel. S.S. v. Bd. of Educ., 231 F.3d 96, 105 (2d Cir.2000) (citing 20 U.S.C. § 1412(5)(B)) (emphasis added). However, parents “’may not be subject to the same mainstreaming requirements as a school board.’” Frank G. v. Bd. of Educ., 459 F.3d at 364 (quoting M.S., 231 F.3d at

102. see also C.L. v. Scarsdale Union Free Sch. Dist., 744 F. 3d 826, 837 (2d Cir. 2014) (“[P]arents whose children are denied a FAPE may be and often are forced to turn to specialized private schools that educate only disabled children.”).

The Second Circuit has explained that whether the placement is “reasonably calculated to enable the child to receive educational benefits” is determined by a consideration of the “totality of circumstances”:

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. v. Bd of Educ., 459 F.3d at 364-65).

A school district may be required to pay for educational services obtained for a child by the child's parent, if (1) the services offered by the District were inadequate or inappropriate, (2) the services selected by the parent were appropriate, and (3) equitable considerations support the parent's claim. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985); see also Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993). Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. Burlington, 471 U.S. at 370-71; Gagliardo, 489 F.3d at 111. "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE. Burlington, 471 U.S. at 370-71; 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148). Compensatory education is an available equitable remedy to make up for denial of a free and appropriate public education. P. v. Newington Bd., 546 F.3d at 111, 123 (2d Cir. 2008). A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim. Carter, 510 U.S. at 7 Burlington, 471 U.S. at 369-70. D. Equitable Considerations To receive an award of tuition reimbursement associated with a private school program, a weighing of the equities must support that award, as “equitable considerations [relating to the reasonableness of the action taken by the parents] are relevant in fashioning relief” (Frank G., 459 F.3d at 363-64; 20 U.S.C. § 1412[a][10][C][iii]). When a school district fails to provide a student with a FAPE and the private placement is found to be appropriate, “the district court enjoys broad discretion in considering equitable factors relevant to fashioning relief” (Gagliardo, 489 F. 3d at 112, citing Carter, 510 U.S. at 16). “A major consideration . . . is whether the parents have cooperated [with the school district] throughout the process to ensure that their child receives a FAPE” (N.R. ex rel. T.R. v. Dept. of Educ., 2009 WL 874061, at *6 (S.D.N.Y. 2009) (citation omitted). Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting before their removal of a student from public school, or by written notice ten business days before that removal. See 20 U.S.C. §1412(a)(10)(C)(iii)(I) and 34 CFR 300.148(d)(1).

ANALYSIS

I find the Parent is entitled to a presumption as to the truth of the asserted facts underlying her claims that are contained in the documentary evidence and testimony to the extent they are credible and are not contradicted by the hearing record. See Comdyne I, Inc. v. Corbin, 908 F. 2d 1142, 1149 (3d Cir.

1990) [noting that the consequence of a defendant’s failure to contest the claims alleged in a complaint is that “the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true”]. I found the testimony of all the witnesses to be credible and found no reason to doubt their veracity. However, I did attribute more weight to some testimony due to relevance.

District’s Failure to Provide A FAPE for the 2022-2023 school year Burlington-Carter Test Prong One As to Prong I of the Burlington-Carter test, the DOE failed to meet its burden at hearing. October 4, 2021 IEP and August 9, 2022 IEP

As stated above, the Student is in a 12-month program and the school year for the Student commenced on July 1, 2022. The October 4, 2021 IEP was in effect from July 1, 2022 until August 9, 2022, when the DOE developed the August 9, 2022 IEP. The DOE did not defend, present a case or submit any witness or documentary testimony at the hearing defending the October 4, 2021 IEP. The DOE stated that they believed the operative IEP for the 2022-2023 school year was the August 9, 2022 IEP, as that was the IEP in effect at the time of the Student’s unilateral placement. Therefore, I find the DOE failed to sustain their burden in demonstrating that the October 4, 2021 IEP provided a FAPE to the Student during the period of the school year it covered. The DOE did not develop or have an IEP in place at the start of the School year, as of July 1, 2022 for the 2022-2023 school year. Additionally, when the DOE developed a subsequent IEP on August 9, 2022 for the 2022-2023 school year, they recommended the exact NPS which had been found an inappropriate placement for the 2021-2022 school year in an earlier proceeding.

The DOE made multiple procedural errors in the August 2022 IEP process. First, the DOE committed a procedural violation of the IDEA by failing to explicitly incorporate the independent educational evaluations to wit: bilingual neuropsychological evaluation, a speech language evaluation, an AT evaluation, an OT evaluation, a PT evaluation, a bilingual ABA Assessment, a bilingual FBA and BIP, that had been sent to the DOE on several occasions prior to the August 9, 2022 IEP meeting. (Ex. PA - C, D, E, F, G, H, I, J) The Parent credibly testified all of these evaluations were provided to the DOE on several occasions well before the August 9, 2022 IEP. The Parent testified the evaluations were sent to the DOE in July 2022, on or about August 5, August 9, and finally, August 15, 2022. (Ex. P-BB,DD, CC; Tr. 183-184) The Parent’s Attorney also testified all these evaluations were provided to the DOE as part of a prior impartial hearing before IHO REDACTED. The Parent repeatedly informed the IEP team, she wanted the evaluations to be reviewed and the recommendations contained therein to be included in the development of the August 9, 2022, IEP meeting.

A CSE developing a Student’s IEP must review “existing evaluation data on the child, including (i) evaluations and information provided by the parents of the child; (ii) current classroom-based, local, or State assessments, and classroom-based observations; and (iii) observations by teachers and related service providers.” 20 U.S.C. §1414(c)(1)(A). This includes any independent educational evaluation obtained at the parents’ expense. See 34 C.F.R. § 300.502(c); 8 N.Y.C.R.R. § 200.5(g)(1)(iv) (“If the parent . . . shares with the school district an evaluation obtained at private expense, the results of the evaluation: must be considered by the school district, if it meets the school district’s criteria, in any decisions made with respect to the provision of a free appropriate public education for the student.”); see also Y.N. v. Bd. of Educ., 2018 U.S. Dist. LEXIS 164453, *55, *71 (S.D.N.Y. 2018).

The DOE Psychologist testified that these current evaluations were not considered during the development of the August 9, 2022 IEP despite acknowledging the evaluations were uploaded in SESIS on August 9, 2022. Moreover, the DOE Psychologist conceded the evaluations could have been received earlier by the DOE but not uploaded until August 9, 2022. I find the DOE had all the mentioned evaluations well before the August 9, 2022 IEP meeting and completely disregarded them. It is quite troubling to see that this Parent, who is not a native English speaker, and who has already gone through the frustrating ordeal of a due process hearing to obtain educational evaluations for the Student, only to have to undergo the process once again because the DOE failed to do what they were required to do by law- to consider and not disregard the current evaluations related to the Student.

The Parent alerted the DOE in the DPC, in the September 27, 2022 letter and also credibly testified that she had never received a copy of the August 9, 2022 IEP or the Prior Written Notice. The Parent testified the first time the Parent had an opportunity to review these documents was during the instant due process hearing. While the DOE submitted the August 9, 2022 IEP and the Prior Written Notice as exhibits, there was no proof in terms of testimony or documentary evidence showing that the Parent received these documents. It therefore “follows that a school district commits a procedural violation when it fails to send a school location letter at all” and “the key question . . . is whether the City properly mailed the letter.” V.A. v. N.Y.C. Dep’t of Educ., 2022 U.S. Dist. LEXIS 84556, 20-CV-0989 (May 10, 2022). Where there is no proof that the letter was received, the offering party may still prove notice through a “presumption of mailing,” either “through evidence of actual mailing (e.g., an affidavit of mailing or of service); or . . . by proof of a sender’s routine business practice with respect to the creation, addressing, and mailing of documents of that nature.” Id. (citing CIT Bank N.A. v. Schiffman, 168 N.E.3d 1138, 1142 (N.Y. 2021). Under this authority, the DOE is obligated to show proof of actual mailing or evidence establishing the presumption of mailing. The DOE did not show this. Without this evidence, the DOE could not demonstrate that a copy of the IEP or the Prior Written Notice was mailed, which is a procedural violation. I also credit the Parent’s testimony that she never received the IEP or the Prior Written Notice, which would have been necessary for the Parent to make meaningful decisions about the Student’s education prior to the start of the 2022-2023 school year.

Although procedural violations of the IDEA may not constitute a failure to provide FAPE when considered individually, “even minor violations may cumulatively result in a denial of a FAPE.” R.E., 694 F.3d 167, 191. In this case, the procedural errors discussed cumulatively resulted in the denial of a FAPE. See A.M., 845 F.3d 523 at 541. Substantive Denial of FAPE

Even if the above procedural violations did not in their totality deny the Student a FAPE, I still find that FAPE was substantively denied.

The Department contends that the IEP met the standards of a FAPE. Upon my review of the document, I do not agree. School districts are required to provide students with disabilities with “an IEP that is ‘likely to produce progress, not regression,’ and…affords the student with an opportunity greater than mere ‘trivial advancement’” Cerra, at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998); see also Rowley, at 199. In this case, the August 2022 IEP was developed only using a Teacher’s Report from April 11, 2022 and the October 4, 2021 IEP, which was previously found to have been inappropriate. The IEP failed to consider the current evaluations, as required by law, which were submitted to the CSE/IEP team and instead developed an IEP based on stale information that did not reflect the Student’s current needs or development. Moreover, it is fundamental that the CSE’s placement recommendation be based upon the IEP (34 CFR §300.116[b][2]) and that the IEP be based upon current evaluations (34 CFR §300.303[b][2]); see also Application of Student with a Disability, Appeal No. 11-

126 at 20. Additionally, the goals developed for the Student in August 9, 2023 IEP are virtual identical, word for word, to the October 4, 2021 IEP. The August 9, 2022 IEP references the October 4, 2021 IEP and consistently references the same out dated OT report dated May 2021 that was used in the October 2021 IEP. (Ex. D-2 at 4; P-B) Additionally, the August 9, 2022 IEP stated as follows: “ [Student] is a non-verbal student with autism with the need for significant curriculum modification, high intensity of interventions and a 1:1 crisis paraprofessional to address his needs. [Student] requires small, highly structured classroom environment that can provide 1:1 ABA Instruction. [Student] also requires an array of related services to address [Student] deficits and needs in receptive and expressive language, fine motor issues, and global learning delay.” (Ex. D-2 at 6). Clearly, the Student was not provided with a 1:1 paraprofessional as the Parent has credibly testified the Student did not have a paraprofessional for a long time and certainly well over three months. The DOE’s own psychologist testified that the NPS provided an “ABA-like” methodology. The DOE Psychologist did not testify the Student was receiving actual ABA. The DOE Psychologist did not address the fact that the goals were nearly identical in the October 2021 IEP and the August 2022 IEP. The Principal of the Attending School testified there is no such thing as “like-ABA”, it is either ABA or it is not. Additionally, Parent’s exhibit F documents that a Board Certified Behavior Analyst (BCBA) did not observe any ABA-strategies being utilized at the NPS. (Ex. P-F) It therefore does not appear that the Student was being provided with the 1:1 ABA instruction that was mandated in the IEP. Taken as a whole, the IEP developed on August 9, 2022 IEP failed to consider the highly significant and current evaluations provided by the Parent, failed to provide a para-professional despite the mandate to do so, failed to develop appropriate goals, failed to provide any curriculum modification since the goals of the two IEP’s are identical, and failed to provide actual ABA instruction. These violations all tantamount to a substantive violation of the IDEA. Accordingly, the IEP generated on August 9, 2022, in this case was not likely to produce progress appropriate in light of the Student’s circumstances, and violated the Student’s right to a FAPE under the IDEA for the 2022-2023 school year. The Parent has met the first prong of the Burlington/Carter Test for tuition funding . Parent’s Unilateral Placement at the Private School was Appropriate Burlington-Carter Test Prong Two: The Appropriateness of the Parent’s Unilateral Placement

Given the District’s failure to meet its burden of proof to demonstrate a FAPE, the next issue to determine is whether the Parent’s unilateral placement of the Student at the Attending School was appropriate. I find the testimony provided by the Parent, and the Principal of the Attending School to be credible. While the DOE Psychologist tried to describe the methodologies used in the NPS as similar to the actual ABA used in the Attending School, the evidence demonstrates significant differences between the two schools. The Attending School’s use of ABA has resulted in the Student finally making some identifiable progress. Of course, progress is just one factor and not dispositive in finding that a uniliteral placement is appropriate, it can be considered as a factor in finding the unilateral placement is appropriate. For the following reasons, I find that the Parent met their burden of proof in demonstrating the unilateral placement at the Attending School was appropriate.

The question of whether the Private School was an appropriate unilateral placement is principally determined by analyzing whether the program provided "educational instruction specially designed to meet the unique needs of [the student]" (Rowley, 458 U.S. at 188-89; see Gagliardo, 489 F.3d at 115; Frank G., 459 F.3d at 365). A review of the hearing record establishes that the testimonial and documentary evidence submitted by the Parent in this case was sufficient to identify the Student's unique individual needs and to satisfy the Parent's burden to establish the appropriateness of the Student's unilateral placement at the Attending School for the 2022-2023 school year.

The placement of the Student at the Attending School was reasonably calculated to enable the Student to receive the educational benefits and supports the Student required to progress allowing the Student to succeed academically and emotionally. The Student progressed while in the Attending School during the 2022-2023 school year. As summarized above, the Parent and the Principal of the Attending School credibly testified that Student’s program at Attending School was individualized and specifically targeted to address the Student’s unique needs. The Principal’s testimony reflected her very detailed knowledge and familiarity with the needs and behavior of the Student. The environment and program created by the Attending School specifically addressed the Student’s challenging behavior in a variety of modalities. The Attending School uses different teaching modalities which demonstrate a comprehensive understanding and ability to cope with the Student’s atypical learning styles and behaviors. The Student is making progress in learning how to regulate his emotions. The Parent detailed the Student’s progress in improving the toileting issues. The Principal documented the Student’s progress from a social-emotional standpoint and in academic areas, including reading, identifying sight words, in writing, and daily living skills, improving in handwriting, and behavior. (Ex. P- EE, FF, GG, HH) The Student looks forward to attending morning meetings and has become better in greeting his peers. Parent stressed the Student has benefitted greatly from the small class sizes and multi-sensory instruction that he receives at the Attending School and has improved his math and is capable of completing a puzzle. (Ex. P- U).

Thus, the Parent’s selection of the Attending School was appropriate and reasonably calculated to allow the Student to make meaningful educational benefits and progress. The Parent has met the second prong of the Burlington/Carter analysis in sustaining their burden in demonstrating the unilateral placement at the Attending School for the 2022-2023 school year was appropriate. Consideration of the Equities and Tuition Amount Burlington-Carter Test Prong Three: Equitable Factors

The Parent acted reasonably, equitably, and cooperated with the District in the IEP process. The equitable considerations support the Parent’s request for tuition funding.

The Parent cooperated fully with the CSE team and took part in the August 9, 2022, IEP meeting. The Parent testified that in preparation for the CSE meeting she sent the most current evaluations conducted in June and July of 2022 to the CSE/IEP Team so that they could develop an appropriate program and placement for the Student. The CSE completely disregarded the current evaluations the Parent timely submitted. The Parent credibly testified she was not provided with a copy of IEP developed for the Student nor did the Parent receive an appropriate placement for the Student. On September 27, 2022, the Parent timely provided the DOE with notice of their intention to enroll the Student at the Attending School. The Parent testified the District did not respond to the September 27, 2022 letter. Parent enrolled the Student at the Attending School for the 2022-2023 school year. There is nothing in the record indicating the Parent failed to cooperate, delayed, interfered with, or hindered the CSE’s evaluation, program development, or placement process in any way. On the contrary, it appears the Parent went through great lengths to ensure the IEP Team/CSE had the most current evaluations in their possession so that the CSE could develop an appropriate IEP for the Student. Unfortunately, the Parent’s efforts were inexplicably disregarded. Furthermore, the District does not contest that the Parent cooperated fully with the CSE. The Parent informed the CSE in August 2022 that she was very concerned about the NPS and did not want her child to continue in that environment due to the high staff turnover rate, the Student’s lack of progress, and increase in maladaptive behaviors. The Parent detailed in compelling testimony how the Student REDACTED and ran towards the REDACTED requiring the Student’s REDACTED and hours of distress for the family and Student. The Parent also described another incident when the Student REDACTED, all of these incidents occurred when the Student did not have a para-professional which was mandated on the Student’s IEP.

The Supreme Court has indicated that “[c]ourts fashioning equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required”, and that “[t]otal reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable” (Carter, 510 U.S. at 16). Here, the Attending School’s tuition is not unreasonable. See Mr. and Mrs. A. ex rel. D.A. v. New York City Dept. of Educ., 769 F. Supp. 2d 403, 429 (S.D.N.Y. 2011) (determining that the private school tuition was not unreasonable in light of the education and related services the school provided).

There is nothing in the record to indicate that the amount of tuition sought for the Attending School was unreasonable. The Attending School tuition for the 2022-2023 school year is $105, 592.50 (Ex. PY1; N-1) The Parent has testified that they do not have the financial means to pay for the tuition at the Attending School. (Ex. P-U) The Parent’s request for the tuition at the Attending School is granted. Based on the foregoing, the Parent has met the third prong of the Burlington/Carter Test, as a weighing of the equities supports an award of tuition funding for the Parent. Accordingly, the Parent is entitled to an order directing the DOE to fund the tuition for the Attending School, including the cost of transportation, as discussed above for the 2022-2023 school year. I find the equitable factors support the Parent’s claim for tuition reimbursement for the 2022-2023 school year.

Compensatory Education

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).

Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008) (citations omitted). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “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.” Reid, 401 F.3d at 518, 524. Compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. Of Educ., 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014). Requested Relief- Compensatory Educational Services from July 1, 2022 until October 19, 2022 The relief request by the Parent is equitable in nature, as the Parent is asking the IHO to devise an appropriate remedy to address the District’s failure to provide the Student with a FAPE from July 1, 2022 until October 19, 2022, during the time the Student was attending the NPS.

As to the relief requested, the Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy” (Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015], citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act” (Doe v. East Lyme, 790 F.3d at 454).

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” (P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education” (Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]). Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” (Doe v. East Lyme, 790 F.3d at 454). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program’” (Reid ex rel. Reid v. Dist. of Columbia, 401 F.3d 516, 522, 525 (D.C. Cir. 2005) (emphasis in original). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves” (Reid, 401 F.3d at 522) (citations omitted). Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place” (Reid, 401 F.3d at 518).

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

The Parent has a responsibility to identify the specific remedy she is seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 (D.D.C. 2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted].

Here, the Parent has identified the specific remedy she is seeking and has provided documentary evidence and testimony in support of the request for compensatory relief. (Ex. P- C, D, E, F, G, H, I, J) The Parent has requested compensatory education for the Student. The Parent has demonstrated the Student is entitled to 11 weeks of compensatory services during the period from July 2022 through October 2022 prior to when the Student entered the Attending School. Therefore, the Parent is requesting the Student be provided with 22 occupational therapy sessions; 16.5 hours of physical therapy sessions; 27.5 hours of speech and language sessions; 495 hours of applied behavior analysis; and 22 hours of parent counseling and training (PCAT). Under the facts and circumstances here, the Parent has demonstrated that the Student is entitled to the equitable relief requested.

I have reviewed the parties’ remaining contentions and find them to be either unnecessary to this decision, without merit, beyond my jurisdiction, or without sufficient basis in the record for a finding. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

1. ORDERED, that the District failed to provide a FAPE to the Student for the 2022-2023 School Year;

2. ORDERED that the Parent is entitled to direct funding for the Student’s tuition at the Attending School for the 2022-2023 school year and the Department of Education shall fund the tuition in the amount of $105, 592.50.00 within 30 days of the submission of the invoice from the Attending School, and the DOE shall fund the cost of transportation to and from the Attending School, it is further;

3. ORDERED, that the District shall fund the following compensatory services: a) 16. 5 hours of physical therapy by a provider of the Parent’s choosing at their normal customary rate; b) 27.5 hours of speech and language services therapy by a provider of the Parent’s choosing at their normal customary rate; c) 22 hours of occupational therapy by a provider of the Parent’s choosing at their normal customary rate;

d) 495 hours of applied behavior therapy analysis (ABA) services by a provider of the Parent’s choosing at their normal customary rate; e) 22 hours of parent counseling and training (PCAT) therapy by a provider of the Parent’s choosing at their normal customary rate; and it is further

4. ORDERED, that the District shall make a direct payment to the provider within 30 days of receipt of the invoices for the services described above, it is further

5. ORDERED, that the District shall fund transportation costs to and from the compensatory services for the Parent and Student in the form of metro cards;

6. ORDERED, that the CSE shall reconvene within 20 days to consider the recommendations made in the most current evaluations and to amend the IEP to reflect the recommended assistive technology, specifically, an iPad with 10.2 in display with Proloquo2Go speech generating application.

SO ORDERED.

DATED: August 7, 2023 Mercedes Cesaratto (signed electronically)

Mercedes Cesaratto

Impartial Hearing Officer

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

DOE’S EXHIBITS

1. Exhibit DATE NAME PAGES withdrawn 12/14/2022 Due Process Complaint by DOE 7 pages DOE

2. Individualized Education Program 8/9/2022 40 pages DOE

3. Prior Written Notice 8/12/2022 16 pages DOE

PARENT’S EXHIBITS

P-A. Exhibit Number of Number Exhibit Date Pages____ Parent’s Impartial Hearing Request INDIVIDUALIZED EDUCATION PROGRAM (IEPS) 12/14/22 7 pages

P-B. Individualized Education Program (IEP) CORRESPONDENCE 10/04/21 41 pages

P-C. Parent Notice Letter with confirmations EVALUATIONS 09/27/22 11 pages

P-D. Neuropsychological Evaluation 07/07/22 17 pages

P-E. Functional Behavior Assessment/ Behavior Intervention Plan 07/07/22 34 pages

P-F. Applied Behavior Analysis (ABA) Skills Assessment 07/07/22 29 pages

P-G. Assistive Technology Evaluation 06/29/22 13 pages

P-H. Occupational Therapy Evaluation 06/24/22 13 pages

P-I. Speech and Language Evaluation 06/12/22 24 pages

P-J. Physical Therapy Evaluation [REDACTED] DOCUMENTATION 06/02/22 14 pages

P-K. Student Acceptance Letter 09/26/22 1 page

P-L. Student Schedule 2022-2023 1 page

P-M. Program Description UNDATED 8 pages

P-N. Tuition Agreement 10/12/22 2 pages

P-O. Occupational Therapy 45 Day Progress Report 12/13/22 2 pages

P-P. Speech and Language 45 Day Progress Report 12/16/22 2 pages

P-Q. Academic 45 Day Review 12/19/22 5 pages

P-R. Functional Behavioral Assessment 12/05/22 5 pages

P-S. Behavior Intervention Plan AFFIDAVITS/RESUMES 12/05/22 5 pages

P-T. Affidavit of [REDACTED] 02/27/23 7 pages

P-U. Affidavit of [REDACTED] 01/09/23 3 pages

P-V. Resume of [REDACTED] UNDATED 1 page

P-W. Affidavit and Resume of [REDACTED] MISCELLANEOUS 01/24/23 4 pages

P-X. [REDACTED]. Rate Sheet 2022-2023 1 page

P-Y. [REDACTED] Tuition Affidavit 12/01/22 1 page

P-Z. Findings of Fact and Decision #221001 SUPPLEMENTAL DISCLOSURE 10/24/22 9 pages

P-AA. Email from Department to Parent re: August 9, 2022 IEP meeting 08/04/22 1 page

P-BB. Email from Parent to Department re: Independent Educational Evaluations (Spanish) 08/05/22 1 page

P-CC. Meeting Notice Committee on Special Education (CSE) (Spanish and English Versions from Department) 08/04/22 5 pages

P-DD. Meeting Notice Committee on Special Education (CSE) (pg. 4), Email from Parent to Department re: Independent Educational Evaluations, & Certification Of Translator 05/03/23 3 pages

P-EE. [REDACTED] Progress Report 01/25/22 22 pages

P-FF. [REDACTED] Progress Report 04/04/22 22 pages

P-GG. Functional Behavioral Assessment 05/11/23 5 pages

P-HH. Behavior Intervention Plan 05/11/23 5 pages

P-II. Parent’s Impartial Hearing Request 11/5/21 7 pages

IHO’S EXHIBITS

IHO-I Parent’s Closing Brief June 23, 23

2023

IHO-2 DOE’s Closing Brief June 27, 17

2023

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit followed by a letter; “D” followed by a number for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits; Transcript is referenced by “Tr.” followed by a page number. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate.

[3] IHO REDACTED issued FOFD 166250 on April 20, 2018.

[4] IHO REDACTED issued FOFD 221001 on October 24, 2022.

[5] I have included limited information regarding prior IHO decisions to inform the record and complete the procedural record and background. However, my decision in this instant hearing is based solely on the evidence submitted in connection with this case, including relevant statutory and case law, and not based on any of the prior decisions related to the Student.

[6] “The board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing, except that a parent or person in parental relation seeking tuition reimbursement for a unilateral parental placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” Educ. Law § 4404(1)(c).