New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 594617 – NYC: 244658

FINDINGS OF FACT AND DECISION

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 02/07/2023

02/08/2023

04/17/2023 Status Conference

05/23/2023

Actual Record Close Date: 05/25/2023

Decision Date: 05/25/2023

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/07/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 02/08/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/17/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], Attorney

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/23/2023

Parties appeared via phone and/or teleconference

For the Student:

[REDACTED], Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 02/07/2023 Ex Document Date Page(s) A Parent’s Impartial Hearing Request /

Due Process Complaint (DPC) 01/06/23 6 B Individualized Education Program / IEP 10/19/20 17 C Psychological Update 11/10/21 3 D Individualized Education Program / IEP 02/16/22 23 E Prior Written Notice 04/05/22 3 F Rate Sheets Undated 3 Entered 05/23/2023 G Independent Neuropsychological Evaluation 03/18/23 26 H Independent Occupational Therapy Evaluation 04/17/23 22 I Independent Vocational Assessment 04/17/23 27 J Independent Functional Behavior Assessment (FBA) 04/19/23 11 K Independent Speech Language Therapy (SLT)Evaluation 05/01/23 16 L Affidavit of [REDACTED] (Parent) 05/23/23 2

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

Entered 02/07/2023 I Notice of IHO Appointment, 01/09/2023, 4 page Entered 04/17/2023 II Interim Order Evaluations, 02/08/2023, 11 pages

INTRODUCTION

On 01/09/2023 I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) (1). Hearing commenced on 02/07/2023, to allow the DOE to defend against the allegations contained in the DPC. (Ex A) The DOE did not appear. Hearing was set to address Parent request for Independent Educational Evaluations (IEEs), as requested via DPC. (Ex A 4-5)

Hearing commenced, on 02/08/2023, and the DOE did not appear.

On 02/08/2023, Parent request for IEEs was considered, and Order issued. (IHO Ex II)

Order included:

The DOE shall immediately authorize and fund Independent Educational Evaluations as detailed below, via currently located provider(s) or similarly qualified provider chosen by the Parent:

- A neuropsychological evaluation, to be conducted by a New York State licensed psychologist, at a rate of $[REDACTED]; - A speech-language evaluation, to be conducted by a New York State licensed speech-language therapist, at a rate of $[REDACTED]; - An occupational therapy evaluation, to be conducted by a New York State licensed occupational therapist, at a rate of $[REDACTED]; - A vocational assessment, to be conducted by a New York State licensed evaluator, at a rate of $[REDACTED]; and - A Functional Behavior Assessment, to be conducted by a New York State Licensed Behavior Analyst or Board Certified Behavior Analyst, at a rate of $[REDACTED].

(IHO Ex II 11)

Status Conference was held, on 04/17/2023, to review the status of the Ordered Evaluations.

(IHO Ex II)

Evaluations were underway, and Hearing set, for 05/15/2023.

On 05/15/2023, the IHO noticed the Hearing was not set on the day’s schedule, so the matter was rescheduled for 05/23/2023.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) alleges a failure of the DOE to provide an appropriate Individualized education Program (IEP) and placement for the Student for the 2020-2021, 2021-2022 and 2022-2023 school years. (Ex A 1)

Parent seeks a variety of forms of relief to remedy the alleged failure, including:

- Independent Educational Evaluations (IEEs) (Ex A 4-5) Addressed via Interim Order (IHO Ex II) - An Order directing the DOE hold an IEP meeting within fourteen days of the date of decision and recommend the Student for placement in a New York State-approved nonpublic school, with an appropriate educational program and related services in accordance with the Student’s needs. Alternatively, if an appropriate private school is located by the Parent prior to the substantive hearing, the IHO shall order the District to fund the cost of the Student’s attendance in such program upon a showing of appropriateness to remedy the denial of FAPE (Ex A 5); - An Order directing the DOE to fund compensatory education and services in areas that include, but are not limited to, academic tutoring, occupational therapy, speech-language therapy, counseling, vocational training, parent counseling and training, and any additional services to remedy the District’s failure to provide an appropriate educational program and methodologies that could allow for meaningful educational progress. These compensatory services are to be provided outside of school hours so as to not interfere with the delivery of the Student’s regular school day and shall be provided by independent providers of the Parents’ choosing at their normal and customary rates (Ex A 5); and - An Order directing the DOE to fund transportation costs to and from all compensatory service sessions. (Ex A 5)

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.

THE POSITION OF EACH PARTY

The DOE neither appeared at any Hearing, nor presented a defense to the allegations contained in the DPC. (Ex A)

At Hearing, the Parent supported its position via uncontested Documentary Evidence and Oral Testimony.

Parent Attorney outlined the Parent position at Hearing, of 05/23/2023:

- “…the Parent had filed this due process complaint because she saw that [Student] was struggling significantly to make progress in a program that was clearly inappropriate to meet his needs and did not implement all of the services on the IEP. The academic demands that were placed on [Student] by the DOE were so far beyond his functioning level, that early on in this current school year, [Student] could no longer take the pressure, and he has been refusing to attend school altogether since December 2022.” - “After obtaining the completed reports of 16 the IEE through the interim order issued in this matter, we can now see just how incredibly inappropriate the DOE's IEPs were for [Student] in the school years at issue. [Student] is diagnosed with autism, with accompanying intellectual impairment, and he struggles to express himself. He's also diagnosed with attention deficit hyperactivity disorder and presents with impairments in his executive functioning. (T 32) - “The independent neuropsychological evaluation in Exhibit G found that [Student] functioned in the third to fifth-grade level, generally, in most of his academic skills. Yet the DOE had inexplicably placed him in a GED-bound program, where he was expected to do high school- 6 level work that was nowhere near his skill level.” (T 32-33) - “This not only prevented [Student] from making any academic gains, but it also caused him to be emotionally distressed and demoralized. The DOE's program also did not take his autism or ADHD diagnoses into account. When the neuropsychologist found that given [Student’s] cognitive, adaptive, and educational skills falling in the deficient range, he could not have been reasonably expected to earn a GED or even pass Regents exams. And instead of being in a class of over students, [Student] needed to be in a program where he could receive one-to-one instruction to remain focused and appropriately target his skills.” (T 33)

Parent Attorney argues that the newly obtained IEEs, and Evidence provided, detail the DOE failure to offer the Student a FAPE over the last several years, and call for a remedy of Compensatory Services that include:

- 1,380 hours of compensatory academic instruction/tutoring (Ex G); - 276 hours of compensatory individual cognitive behavioral therapy (Ex

G); - 690 hours of compensatory Parent counseling and training (PCAT) (Ex

G); - 138 hours of compensatory occupational therapy (Ex H) (T 34); and - 276 hours of compensatory speech-language therapy (Ex K) (T 34-35).

The Parent requests that the compensatory services be provided by private providers of the Parent's choosing at their standard market rates; and that the services have an expiration date of no sooner than three years given the extensive denial of FAPE in this matter and the large bank of hours that we're requesting to ensure that Student can “finally receive the help that he needs.” (T 35)

Parent Attorney noted that the last IEP developed, for the Student, was completed on 02/16/2022; and the Parent has communicated with the DOE, since the Student’s school refusal this past December, without resolution. (T 36-37)

The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

A Parent’s Impartial Hearing Request / Due Process Complaint (DPC) 01/06/23

Details Parent’s allegations and sought after relief.

B Individualized Education Program / IEP 10/19/20

Confirms Student entitlement to special education services:

IEP includes Student specific information: - Classification of Autism

- [REDACTED]

- 3rd and 4th grade Level (Ex B 1)

- Recommends Special Class 12:1+1 (Ex B 8-9)

- Recommends Counseling, Occupational Therapy, PCAT and Speech-Language Therapy (Ex B 9)

- Instructional/Functional Levels of 4th Grade for Reading and 3rd Grade for Math (Ex B 14)

- Specialized Transportation is recommended (Ex B 16)

C Psychological Update 11/10/21

Confirms Student is diagnosed with Autism (Ex C 1); and in need of special education services and supports (Ex C 3).

D Individualized Education Program / IEP 02/16/22

Confirms Student entitlement to special education services:

IEP includes Student specific information: - Classification of Autism - Still identifies Student as [REDACTED] - Participating in a GED program (Ex D 1) - Student requires significant support to complete tasks related to his current academic level (Ex D 1) - Student disability includes areas of reading, writing and math (Ex D 6) - Student supports are identified as including Special Education Teacher Support Services (SETSS) and a paraprofessional (Ex D 7)

It is noted that while the Student is in need of significant support related to his academic level, his level, as indicated below, remains the same as it was two years prior. (Ex B14)

Despite being many years delayed, the IEP goals include reading a [REDACTED] grade text independently. (Ex D 10)

No actual reading goals are included to move the Student through his severe delay to a position where he could independently reads a [REDACTED] grade passage.

- Recommends SETSS (Ex D 12-13)

- Recommends Counseling, Occupational Therapy, PCAT and Speech-Language Therapy (Ex D 13-14)

- Instructional/Functional Levels of 4th Grade for Reading and 3rd Grade for Math (Ex D 21)

- Specialized Transportation is recommended (Ex D 20)

E Prior Written Notice 04/05/22

Confirms Student IEP services are to commence on 04/05/2022.

G Independent Neuropsychological Evaluation 03/18/23

Details Student educational history, testing conducted, and results. (Ex G 1-18)

Evaluation concludes that the Student’s progress “has been curtailed by inappropriate educational placements” (Ex G 17); and placement did not meet the Student’s educational needs or take his classification of Autism into account. (Ex G 17)

The evaluation opines that the Student could not possibly be expected to pass Regents exams or earn a GED diploma. (Ex G 18)

The DOE failure is also a result of a DOE failure to perform evaluations on a regular basis. For example, there is no Speech -Language Evaluation presented. (Ex G 18)

The conclusions of the evaluator are borne out by other data reviewed below, and by reviewing the IEPs in evidence, which are insufficient and not defended.

Evaluations includes Diagnoses of: Autism Spectrum Disorder with accompanying intellectual and language impairment; Intellectual Disability – Mild; Attention-Deficit/Hyperactivity Disorder, Predominately Inattentive Type; and Persistent Depressive Disorder (Dysthymia) with anxious distress/Early onset-Moderate. (Ex G 18)

Evaluation recommends an array of supports and interventions moving forward. (Ex G 18-21) This includes:

- Needing several years past age 21 of appropriate and educational services to compensate for not being placed in an appropriate program (Ex G 18-19) - 1:1 instruction to remain focused and address anxiety and depression - a 12 month program - reading writing and math interventions (Ex G 19) - transportation accommodations (Ex G 19) Relating to Compensatory services, the Evaluator recommends: - 1,380 hours of compensatory 1:1 academic instruction/tutoring from a learning disabilities specialist in an evidence based method such as Orton-Gillingham (Ex G 20); - 276 hours of compensatory individual cognitive behavioral therapy, outside of school, from a licensed psychologist or social worker (Ex G 20); and - 690 hours of compensatory Parent counseling and training (PCAT), including consultation with a Board Certified Behavior Analyst (BCBA), at home (Ex G 20).

H Independent Occupational Therapy Evaluation 04/17/23

Details Student educational history, testing conducted, and results. (Ex H 1-20)

Summary concludes with recommendations:

- Student should receive 2 OT sessions per week at 45 minutes per session in a group of no more than 2, to address sensory processing, adaptive behavior, and executive functioning skills - Student requires occupational therapy services on a 12-month basis to maintain progress and prevent regression. (Ex H 21)

Recommendation is also made for: “compensatory occupational therapy services in the form of a bank of 138 occupational therapy hours (approximately 1.5 hours per week for 46 weeks, for 2 years), which [Student] required. These hours will allow [Student] to consistently make improvements in his many areas of need. His clinical program did not adequately address his needs and he has not been consistently receiving occupational therapy services to address these skills.” (Ex H 21)

Evaluations also provides goals. (Ex H 21-22)

I Independent Vocational Assessment 04/17/23

Detailed Assessment includes recommendations which should be considered at an upcoming Student IEP meeting, including:

- Student should participate in occupational therapy services to improve executive functioning, sensory processing, adaptive behaviors, and prevocational skills. - [Student] should start learning about various careers and roles in the community, and continue to work on gaining more insight into his specific strengths and challenges as well as possible areas of interest. (Ex I 27)

J Independent Functional Behavior Assessment 04/19/23

Detailed Assessment includes recommendations which should be considered at an upcoming Student IEP meeting, including:

1. Given the significant and severe problem behaviors emitted, [Student] requires 10 hours per week of 1:1 ABA home-based, empirically based behavior intervention with a provider who is trained and has experience in behavioral change procedures. Behavior intervention should address noncompliance and offtask behaviors for reduction and extinction, as well as incorporate increasing replacement appropriate behaviors in order to effectuate appropriate behavior change not only at school, but also in the home and community settings.

2. Additionally, [Parent] must also be trained and taught how to implement the strategies and the behavior change principles in order to decrease reinforcement of problem behaviors that will carry over into the school and other settings. [Parent] should receive Parent Counseling and Training (PCAT) four (4) hours per month to train her in the interventions. This is necessary in order to increase generalization of appropriate behaviors at 10 J-10 school, home and in the community as well as to avoid intermittent reinforcement of maladaptive behaviors that maintain the problem behaviors. (Ex J 10-11)

K Independent Speech Language Therapy Evaluation 05/01/23

Details Student educational history, testing conducted, and results. (Ex K 1-13)

Evaluation concludes with recommendations, that include:

- Individual speech-language therapy – provided 5x a week for 30 minutes per session, to target oral and written comprehension, expressive language, reading comprehension. a. Shorter, more frequent sessions (i.e. 30 minute sessions) are recommended due [Student’s] resistance to participate in educational based activities. (Ex K 13)

Recommendation is made for Compensatory Educational services:

- “I recommend compensatory services in the bank of 276 speech and language hours (providing him with approximately 2 hours a week for 46 weeks, for approximately 3 years). The hours would give [Student] consistent access to therapeutic intervention that will address his significant deficits. Providing these services will allow [Student] to have the opportunity to address his specific needs in a consistent manner. [Student] needs intensive therapy to establish the foundational language skills he is lacking. This recommended amount was derived from a qualitative clinical approach, considering [Student’s] current needs and the time he will need to “catch up” to make him whole. [Student’s] clinical program did not provide him with the speech therapy services he needed. These hours are recommended in addition to his provision of service to help expedite minimizing the gaps that are present. Unfortunately, without a robust clinical program, the gaps will continue to widen. It is recommended that these should not have an expiration date, to allow access to them over time.” (Ex K 13)

Goals are also presented. (Ex K 14-16)

L Affidavit of [REDACTED] 05/23/23

Student’s mother provided uncontroverted Testimony that included:

- Student began attending [REDACTED] @ [REDACTED] in the 2018-2019 school year; - Even though Student’s IEP recommends occupational therapy for Student, he has not received any occupational therapy since 2020 because his school could not find a provider to assign to him; - Student still cannot tie his shoelaces even though he is nineteen years old; - The New York City DOE has never provided me with any parent counseling and training; - In the 2020-2021 school year, the DOE changed Student’s placement from [REDACTED] to a program called [REDACTED] ([REDACTED]) where he was in a large class of more than 20 students who were being prepared for the GED exam (Ex L 1); - The staff at Student’s school told me that they wanted [Student] to try to take the GED exam because he would have more employment options if he had a GED (Ex L 1-2); - Ever since Student started attending [REDACTED], he had a hard time keeping up with the work, and his anxiety became worse and worse; - I attended Student’s most recent IEP meeting in February 2022 (Ex D); - At the February 2022 IEP meeting, I told the IEP team that I was concerned about Student’s progress and that he needed a smaller class size so that he could focus and get more support in class, but I was told that that was not something they could offer; - At the February 2022 IEP meeting, I asked if Student could receive more counseling, especially individually, to help deal with his anxiety, but they rejected this request also; - In the 2022-2023 school year, Student became more and more frustrated with the [REDACTED] program and started to refuse to go to school; - By December 2022, Student stopped going to school completely; - I tried to convince Student to continue to go to school, but he told me he did not want to go back to [REDACTED]; - When Student began refusing to attend school, I immediately informed the staff at his school and asked them for support; - To date, Student is still out of school and the DOE has not held any IEP meeting with me to reconsider his program. (Ex L 2)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 (Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[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. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998] [quoting Rowley, 458 U.S. at 206]; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple 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 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

Under the IDEA, 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., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). 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'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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 (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9).

The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

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 (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 369-70 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "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; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

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]; see R.E., 694 F.3d at 184-85). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). 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]). "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]; see Rowley, 458 U.S. at 207). 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; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). 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]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

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).

The final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 2020-2021, 2021-2022 and 2022-2023 School Years The DOE opted not to present a defense to the Parent’s allegations.

The district has presented no witnesses in this matter. Evidence does include two IEPs. It is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016)

The IEPs are reviewed above and found to be deficient in identifying the Student’s areas of special education need and providing services to address those needs. The IEPs indicate no improvement in Student’s instructional and functional levels for reading and math, despite calling for the Student to perform on a level far beyond his abilities. (Ex B & D)

The DOE offered no response to the uncontroverted Testimony that the Student has failed to receive recommended services; the DOE failed to respond to Parent concerns; and the Student has been unable to attend school since December of 2022. (Ex L 1-2)

I conclude that the district has not met its burden to establish that it provided a FAPE.

The DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the 20-21, 21-22 and 22-23 school years.

I find the DOE failed to offer the Student a FAPE for the 20-21, 21-22 and 22-23 school years.

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

A FAPE has already been found to have been denied the Student, for the 20-21, 21-22 and 22-23 school years.

Evidence uniformly describes the DOE IEPs, and related Student services, as insufficient for the past several school years. Evidence calls for a variety of compensatory services to address the DOE failure and support the Student in making up for the DOE’s past failures. (Ex G, H & K)

Compensatory services recommended include:

- 1,380 hours of compensatory 1:1 academic instruction/tutoring from a learning disabilities specialist in an evidence based method such as Orton-Gillingham (Ex G

20); - 276 hours of compensatory individual Cognitive Behavioral Therapy, outside of school, from a licensed psychologist or social worker (Ex G 20); - 690 hours of compensatory Parent counseling and training (PCAT), including consultation with a Board Certified Behavior Analyst (BCBA), at home (Ex G 20).

- Occupational Therapy services in the form of a bank of 138 occupational therapy hours (Ex H 21); and - 276 Speech and Language Therapy hours. (Ex K 13)

Parent evidences a reasonable basis for award of compensatory services, in light of the DOE failure.

PROGRAM AND PLACEMENT

When determining an appropriate placement on the educational continuum, a CSE should first determine the extent to which the student can be educated with nondisabled peers in a public school setting before considering a more restrictive nonpublic school option (see E.F. v New York City Dept. of Educ., 2013 WL 4495676, at *15 [E.D.N.Y. Aug. 19, 2013] [explaining that "under the law, once [the district] determined that [the public school setting] was the least restrictive environment in which [the student] could be educated, it was not obligated to consider a more restrictive environment, such as [the nonpublic school]; A.D. v. New York City Dep't of Educ., 2013 WL 1155570, at *8 [finding that "[o]nce the CSE determined that [public school setting] would be appropriate for the [s]tudent, it had identified the least restrictive environment that could meet the [s]tudent's needs and did not need to inquire into more restrictive options such as nonpublic programs"]). An IHO Order that the CSE refer the student to the CBST for placement in a nonpublic school, particularly when read in conjunction with his order that the CSE reconvene to consider the results of the various ordered evaluations of the student, would violate the CSE's duty to first determine if the student can be educated in a public school setting, and, as such, is premature (see Cooke Center for Learning and Dev. v. Mills, 19 A.D.3d 834, 836 [3rd Dep't 2005] ["The federal law prefers a 'public' education, where a 'child is educated in the school that he or she would attend if nondisabled,' if possible"]; Matter of Pelose, 66 A.D.3d 1342, 1344 [4th Dep't 2009] ["Indeed, the central purpose of the IDEA …and article 89 of the Education Law is to afford a 'public' education for children with disabilities"]).

Attorney contends, due to the denial of FAPE for the past several years, the evaluations and documentary evidence support specific relief, both as part of an appropriate program moving forward, in the form of the UP, and as included in an Order for specific IEP inclusion of an NPS recommendation. (Ex A 12-13)

In this case, the Student is presently at home and not receiving education services.

The DOE is already past due to conduct an IEP meeting, for the Student. (Ex D)

A considerable amount of newly acquired evaluative material has accumulated. (Ex G, H, I, J & K)

Parent seeks an Order directing the DOE hold an IEP meeting within fourteen days of the date of decision and recommend the Student for placement in a New York State-approved nonpublic school, with an appropriate educational program and related services in accordance with the Student’s needs. Alternatively, if an appropriate private school is located by the Parent prior to the substantive hearing, the IHO shall order the District to fund the cost of the Student’s attendance in such program upon a showing of appropriateness to remedy the denial of FAPE. (Ex A 5)

Relief in the form of IEP amendments and prospective placement of the student in a nonpublic school is not appropriate in this instance as it would tend to circumvent the statutory process, under which the CSE is the entity tasked with reviewing information about the student's progress under current educational programming and periodically assessing a student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).

I find an Order directing an IEP meeting to take as quickly as possible to be appropriate.

I do not find it appropriate to direct the DOE to make specific recommendations. These materials must first be reviewed by the DOE, at an IEP meeting.

TRANSPORTATION

The IDEA specifically includes transportation, as well as any modifications or accommodations necessary in order to assist a student to benefit from his or her special education, in its definition of related services (20 U.S.C. § 1401[26]; see 34 CFR 300.34[a], [c][16]). In addition, State law defines special education as "specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability," and requires school districts to provide disabled students with "suitable transportation to and from special classes or programs" (Educ. Law §§ 4401[1]; 4402[4][a]; see Educ. Law § 4401[2]; 8 NYCRR 200.1[ww]).

Specialized transportation must be included on a student's IEP if required to assist the student to benefit from special education (Application of a Child with a Disability, Appeal No. 16035). If a CSE determines that a student with a disability requires transportation as a related service in order to receive a FAPE, the district must ensure that the student receives the necessary transportation at public expense (Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; see 8 NYCRR 200.1[ww]).

Transportation must be provided to a student with a disability if necessary for the student to benefit from special education, a determination which must be made on a case-by-case basis by the CSE (Tatro, 468 U.S. at 891, 894; District of Columbia v. Ramirez, 377 F. Supp. 2d 63 [D.D.C. 2005]; see Transportation, 71 Fed. Reg. 46576 [Aug. 14, 2006]; "Questions and Answers on Serving Children with Disabilities Eligible for Transportation," 53 IDELR 268 [OSERS 2009]; Letter to Hamilton, 25 IDELR 520 [OSEP 1996]; Letter to Anonymous, 23 IDELR 832 [OSEP 1995]; Letter to Smith, 23 IDELR 344 [OSEP 1995]). If the student cannot access his or her special education without provision of a related service such as transportation, the district is obligated to provide the service, "even if that child has no ambulatory impairment that directly causes a 'unique need' for some form of specialized transport" (Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1374-75 [11th Cir. 1997] [emphasis in original]). The requested transportation must also be "reasonable when all of the facts are considered" (Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 [5th Cir. 1986]).

Parent seeks an Order directing the DOE to fund transportation costs to and from all compensatory service sessions. (Ex A 5)

The Student is presently without access to any special education services, resulting from the DOE’s failure to offer the Student a FAPE, for the past several years.

Student IEPs do call for special education transportation. (Ex B 16 & D 20)

The DOE raises no objection to the requested relief.

I find evidence supports the provision of DOE funded transportation, for the Student, to allow access to compensatory services awarded herein.

The DOE shall provide the Parent and Student with Metro Cards to allow access to the compensatory services Ordered below.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 20-21, 21-22 and 22-23 school years.

2. The DOE shall fund the compensatory services detailed below, for the Student, to be utilized by 12/31/2025, via Parent chosen provider(s), at reasonable market rate(s).

Services to be delivered at home or at school, at the discretion of the Parent and Provider(s), including:

- 1,380 hours of compensatory 1:1 academic instruction/tutoring from a learning disabilities specialist in an evidence based method such as Orton-Gillingham; - 276 hours of compensatory individual Cognitive Behavioral Therapy, from a licensed psychologist or social worker; - 690 hours of compensatory Parent counseling and training (PCAT), including consultation with a Board Certified Behavior Analyst (BCBA); - Occupational Therapy services in the form of a bank of 138 occupational therapy hours; and - 276 Speech and Language Therapy hours.

3. The DOE shall conduct an IEP meeting, which includes consideration of newly performed evaluations, for the Student, and deliver an IEP to the Parent, by June 16th, 2023.

4. The DOE shall provide the Student, and Parent, with Metro Cards to facilitate access to the Compensatory Services Ordered above.

5. The DOE shall provide Parent with any documents or forms necessary to facilitate delivery of services, and payment, under this Order, within ten days of the date of this

Order.

6. This decision is subject to appeal and review by the State Review Officer.

DATED: May 25, 2023

DANIEL AJELLO

DANIEL AJELLO

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.