New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/10/2023

(All Parties Appeared Via Teleconference)

For the Student:

NONE

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/27/2023

(All Parties Appeared Via Teleconference)

For the Student:

NONE

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 03/31/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 04/12/2023

(All Parties Appeared Via Teleconference)

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

NONE

DOCUMENTATION ENTERED INTO THE RECORD PARENT

A. Parent Exhibit Description of Document Date Page(s) Entered 03/27/2023 Due Process Complaint (DPC) Entered 04/12/2023 01.31.2023 16 pages

B. Individualized Education Program (IEP) 11.23.2020 18 pages

C. Final Report Card 2020.2021 1 page

D. IEP 10.27.2021 19 pages

E. Psychoeducational Evaluation Report School District 12.13.2021 16 pages

F. Final Report Card 2021.2022 1 page

G. IEP 01.04.2022 21 pages

H. [REDACTED] ([REDACTED]) Testing 06.27.2022 63 pages

I. Student Transcript 07.02.2022 1 page

J. [REDACTED] Neuropsychological and Educational Evaluation 07.05.2022 23 pages

K. Letter from the Department of Education (DOE) 11.2022 2 pages

L. IEP 12.20.2022 27 pages

M. Affidavit of [REDACTED] 4/5/23 11 pages

DEPARTMENT OF EDUCATION (DOE)

None

IMPARTIAL HEARING OFFICER

Entered 03/27/2023

I Notice of Appointment, 02/06/2023, 4 pages

INTRODUCTION

On 02/06/2023, 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) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 03/10/2023, and continued, on 03/27/2023.

On both dates neither Party appeared.

The IHO communicated with the Parties and noted the Hearing Office did not include an email address for the Parent Attorney, which could explain why they did not receive notice of the Hearing dates.

Hearing was then set for 03/31/2023, and concluded, on 04/12/2023.

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

An IEP, entered as Exhibit B, as dated, 11/04/2020, is actually correctly dated as 11/23/2020.

Hearing, of 03/31/2023, was held, to allow the DOE an opportunity to present a defense to the allegations contained in the DPC.

Due Process Complaint (DPC), of 01/31/2023, alleges a failure of the DOE to provide an appropriate IEP and placement for the 20-21, 21-22 and 22-23 school years. (Ex A 2)

Allegations are uncontested, and include:

- Student is a child of [REDACTED] years of age. He lives with his Parent within the area served by the New York City Department of Education (the “District” or “DOE”); - Since at least October 27, 2021, [REDACTED] has been classified as eligible for special education services, under the Disability Classification of Autism Spectrum Disorder (“ASD” or “Autism”); - [REDACTED] has displayed delayed cognitive and speech and language skills since his infancy. He has continually struggled with his education throughout his attendance in public schools; - In 2020, when [REDACTED] attended school remotely due to the COVID pandemic, Mother realized how far behind her son had fallen as compared to his peers, particularly with respect to his speech and language skills; - After an initial evaluation, [REDACTED] was found to be eligible for special education services, under the classification of “Autism”; - As described below, [REDACTED] has made minimal progress in his education since that initial evaluation; - Mother expressed her concerns about [REDACTED]’s delays and the state of his education; - The District, however, continued to offer substantially the same services year after year, even though it was apparent that [REDACTED] continued to struggle despite those services; - [REDACTED] is thus entitled to compensatory services to remedy his educational deficit; - Student was evaluated, by the DOE, at [REDACTED] years of age (Ex A 2); - Student attended Public Schools and received IEP services, through [REDACTED] grade (Ex A 2-3) - For the past several years the Parent alleges the DOE failed: to properly evaluate the Student; offer methodologies and/or strategies based on peer reviewed research; to provide annual goals targeted to the Student’s needs; to provide appropriate related services; and denied a FAPE to the Student for the 20-21, 21-22 and 22-23 school years (Ex A 14).

Parent seeks a variety of forms of relief to remedy the alleged failure. Parties resolved some issues, outside of the Hearing, which provided some of the sought after relief. The relief presently sought includes:

- A minimum of 902 hours of 1:1 academic tutoring at [REDACTED] ([REDACTED]) at $[REDACTED]/hour, funding of transportation to and from [REDACTED] in the form of Metrocards, and any other compensatory services in an amount and frequency to be determined at hearing. (T 11-12, 33-34, Ex A 15)

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 did not defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 20-21, 21-22, or 22-23 school years. (T 22)

At Hearing, the Parent supported its position via Documentary Evidence and Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below: [REDACTED], Parent Student’s Parent provide Testimony that included:

- For the 22-23 school year, the Student is attending his [REDACTED] of [REDACTED] (T 24); and - Student is receiving group compensatory services, since January 2023. (T 28)

Parent refers to Compensatory services, which are further details in IEP, of 12/20/2022. (Ex L 18)

A Due Process Complaint (DPC) 01.31.2023

Details Parent allegations and sought after relief.

B Individualized Education Program (IEP) 11.23.2020

Completed during Student’s [REDACTED] grade school year included:

- Classification of Autism - Student noted to be functioning on a 1st grade level in English Language Arts

(ELA) (Ex A 1)

- Recommended services of:

o Special Class, ELA, 8:1+1, 8x/week, Period, Special Education Classroom o Special Class, Math, 8:1+1, 8x/week, Period, Special Education Classroom o Special Class, Social Studies, 8:1+1, 4x/week, Period Special Education Classroom o Special Class, Sciences, 8:1+1, 4x/week, Period, Special Education Classroom o Counseling, Group service, 1x/week, 40 minutes, Counselor’s office o Occupational Therapy, Group of 3, 2x/week, 30 minutes, Therapy Room o Parent Counseling and Training, Individual/Group, 3x/year, 1 period, School/District o Speech-Language Therapy, Group service, 1x/week, 40 minutes, Therapy Room o Speech-Language Therapy, Individual Service, 1x/week, 40 minutes, Therapy Room (Ex B 12) - Student Instructional and Functional Level is set forth as 1st grade in Reading and 5th grade in Math. (Ex B 16)

C Final Report Card 2020.2021

Student is noted to have passed academic classes.

D IEP 10.27.2021

Completed during Student’s [REDACTED] grade school year included:

- Classification of Autism - Student assessments include: ELA grade 1 and 2, and Math grade 4 (Ex D 1) - Recommended services of: o Special Class, ELA, 8:1+1, 8x/week, Period, Special Education Classroom o Special Class, Math, 8:1+1, 8x/week, Period, Special Education Classroom o Special Class, Social Studies, 8:1+1, 4x/week, Period, Special Education Classroom o Special Class, Sciences, 8:1+1, 4x/week, Period, Special Education Classroom o Counseling, Group service, 1x/week, 40 minutes, Counselor’s office o Occupational Therapy, Group of 3, 1x/week, 30 minutes, Therapy Room o Parent Counseling and Training, Individual/Group, 3x/year, 1 period, School/District o Speech-Language Therapy, Individual Service, 1x/week, 40 minutes, Therapy Room o Speech-Language Therapy, Group of 4, 1x/week, 40 minutes, Therapy Room (Ex D 13) - Student Instructional and Functional Level is set forth as 2nd grade in Reading and 4th grade in Math. (Ex D 16)

Student regressed one grade in the area of Math, since the last IEP, completed a year prior. (Ex B 16)

E Psychoeducational Evaluation Report School District 12.13.2021

Report scores confirms Student’s academic delay. (Ex E 11-14)

Student performed in the very low range for reading and math. (Ex E 15-16)

No recommendations are made.

F Final Report Card 2021.2022

Student is noted to have passed all his academic classes. G IEP 01.04.2022

Completed during Student’s [REDACTED] grade school year included:

- Classification of Autism (G 1) - Recommended services of: o Special Class, ELA, 8:1+1, 8x/week, Period, Special Education Classroom o Special Class, Math, 8:1+1, 8x/week, Period, Special Education Classroom o Special Class, Social Studies, 8:1+1, 3x/week, Period, Special Education Classroom o Special Class, Sciences, 8:1+1, 2x/week, Period, Special Education Classroom o Special Education Teacher Support Services (SETSS), Direct Service, 3x/week, Period, Separate Location ELA, Group Service, In/Pull Out o Counseling, Group service, 1x/week, 40 minutes, Counselor’s office o Occupational Therapy, Group of 3, 1x/week, 30 minutes, Therapy Room o Parent Counseling and Training, Individual/Group, 3x/year, 1 period, School/District o Speech-Language Therapy, Individual Service, 1x/week, 40 minutes, Provider’s office o Speech-Language Therapy, Group of 4, 1x/week, 40 minutes, Provider’s office (Ex G 14-15) - Student Instructional and Functional Level is set forth as 3rd grade in Reading and 4th grade in Math. (Ex G 19)

H [REDACTED] ([REDACTED]) Testing 06.27.2022 [REDACTED] testing consisted of various tests, included the following findings:

a. For each skill within the CHALL Phonetic Analysis (regarding the use of consonants and vowels) [REDACTED] tested at between Pre-K and 2.9 grade levels; b. Each skill within the Informal Reading Inventory, was measured as “Poor”; c. [REDACTED]’s Reading Comprehension, within the “Achievement Test” was in the 3rd percentile, or “Very Poor.” Such skills were the equivalent of a second grade student; d. [REDACTED] placed below grade level on every one of the components of the Huntington Math Placement Exam.

In many subtests, [REDACTED]’s skills were at the expected grade level of an elementary school student. (Ex H 1-3) [REDACTED] Learning Center recommended a prescribed curriculum consisting of the following hours of instruction in the following subjects:

Subject Hours of Instruction Verbal 312 hours Vocabulary/Word Attack/Spelling 160 hours Writing/Language Arts 60 hours Study skills 15 hours Math 355 hours TOTAL PRESCRIBED HOURS 902 total hours. (Ex H 4)

I Student Transcript 07.02.2022

Student is noted to have passed all his academic classes.

J [REDACTED] Neuropsychological and Educational Evaluation 07.05.2022

Evaluation confirms Student need for special education services, noting: several areas of weakness and vulnerability, which help explain the Student academic struggles “for many years” (Ex J 10); sever language based weakness, which interferes with numerous aspects of cognitive and academic functioning across domains; and speech difficulties (Ex J 10); and difficulties with executive functioning (Ex J 12).

Evaluator concludes that the Student will require “significant language-based intervention moving forward, to obviate further regression and ongoing support within these areas of his functioning.” (Ex J 12)

Recommendations include:

- Student’s disability classification should be changed from “Autism” to “Speech and Language Impairment.” Dr. [REDACTED] noted that “it is clear that his speech and language needs are currently resulting in the most significant impediment to his educational functioning.” - [REDACTED] is exhibiting gross motor weaknesses, for which he has not received the appropriate support. The Neuropsych noted, that “from an academic standpoint, it is evident that there are significant reading comprehension gaps between [REDACTED] and his peers and his writing and language-based math problem solving skills are also far below age-expectation. (Ex J 12) - [REDACTED] be placed in a small, supportive, full-time special education classroom with a language-based special education school that serves students with significant language-based learning disabilities. This setting should provide multisensory structured language support throughout the entirety of the school day, with consistent classroom push-in speech-language intervention provided by a speech-language pathologist who is in the classroom with [REDACTED] and his peers for the entirety of the school day. (Ex J 12) - [REDACTED] requires the support of a learning specialist to remediate gaps in his skills and to continue to provide adequate support as needed. In terms of his reading and writing skills, [REDACTED] will require 1:1 learning support from an academic specialist trained in multisensory interventions and in working with older students with a history of language-based learning challenges.” (Ex J 13) - [REDACTED] requires a “large bank of compensatory hours.” Dr. [REDACTED] estimated that he required 625 hours of speech-language therapy and 2080 hours of 1:1 multisensory-based structured language academic intervention for reading, writing, and math. Dr. [REDACTED] recommended that these additional hours be available without an expiration date, so that [REDACTED] and his family can access them over time. (Ex J 13) - [REDACTED] should be granted a host of classroom accommodations including preferential seating, verbal instruction, instruction via multiple modalities, check-ins, additional processing time, preview of notes or directions; afforded testing accommodations, including: double time, quiet location, breaks as needed, small group setting, access to calculator for math, access to highlighter and graph paper, spelling requirements waived, test passages, questions and directions read and reread aloud. (Ex J 14-15)

K Letter from the Department of Education (DOE) 11.2022

Directions for Student to engage Related Services.

L IEP 12.20.2022

Completed during Student’s first year of [REDACTED] included:

- Classification of Autism (Ex L 1) - Recommended services of: o Special Class, Math, 8:1+1, 5x/week, Period, Special Education Classroom o Special Class, ELA, 8:1+1, 5x/week, Period, Special Education Classroom o Special Class, Social Studies, 8:1+1, 5x/week, Period, Special Education Classroom o Special Class, Sciences, 8:1+1, 5x/week, Period, Special Education Classroom o Counseling, Group service, 1x/week, 40 minutes, Counselor’s office o Occupational Therapy, Group of 3, 1x/week, 40 minutes, Therapy Room (Ex L 16) o Parent Counseling and Training, Individual/Group, 3x/year, 1 period, School/District o Speech-Language Therapy, Individual Service, 1x/week, 40 minutes, Special Education Classroom o Speech-Language Therapy, Individual Service, 1x/week, 40 minutes, Therapy Room o Speech-Language Therapy, Group of 3, 1x/week, 40 minutes, Therapy Room o Speech-Language Therapy, Group Service, 1x/week, 40 minutes, Special Education Classroom (Ex L 17) - Compensatory Services: Student requires additional services to address lost skills and/or lack of expected progress due to periods of remote and blended learning beginning in March of 2020. SETSS, Direct, Group, 200, 40 minute sessions from 01/03/2023 through 01/03/2024. (Ex L 18) - Student Instructional and Functional Level is set forth as 1st grade in Reading and 5th grade in Math. (Ex B 16)

The IEP noted that [REDACTED] required additional/compensatory services to address lost skills or the lack of progress, due to period of remote or blended learning. Specifically, the IEP recommended additional Special Education Teacher Support Services (SETSS) in all subjects for a total of 200 minutes. The compensatory services were projected to begin on January 3, 2023 and January 3, 2024. The IEP does not offer where the recommendation came for group SETSS service, nor how it would specifically address any specific Student deficit.

In contracts to the vague services recommended in the IEP, the Evaluation calls for 1:1 Student services. (Ex J 13)

Parent Attorney notes that the “number of recommended service hours were substantially lower than that recommended in Dr. [REDACTED]’s Neuropsychological Evaluation, which recommended a total of 2080 hours, including 625 of speech-language therapy.” (Ex A 13, T 26-28)

M Affidavit of [REDACTED] 4/5/23 [REDACTED] Center Director provides Testimony that includes:

- Her qualifications and experience (Ex M 1); - General characteristics of [REDACTED]: full services learning center; offering individualized tutoring in reading, writing, math, and subject tutoring; and work with regular and special education children (Ex M 1); - Familiarity with the Student, and the diagnostic testing performed (Ex M 2-3); - Review of Student testing and results (Ex M 2-7); - Results indicate Student independent levels to be 2nd grade for Reading and Math (Ex M 7); - In order to remediate the Student to his current [REDACTED] grade level, tutoring services are recommended, totaling 902 hours (Ex M 7); - Details of the [REDACTED] prepared remediation program to address Student deficits (Ex M 7-10); - [REDACTED] is appropriately staffed to deliver the Student recommended remediation plan (Ex M 10-11); and - [REDACTED] fees include: o Diagnostic Evaluation fee: $295.00 o Registration fee: $100.00 o One-to-one hourly instruction fee: $110.00 (Ex M 11)

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 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).

DOE offer of FAPE for the 20-21, 21-22 and 22-23 School Years The DOE opted not to present a defense to the Parent’s allegations.

The DOE has not evidenced development of an appropriate IEP for any of the school years at issue.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for the contested school years.

As reviewed above the IEPs entered into evidence do not reflect Student progress, and indeed call for compensatory services, though not in the form as recommended via the recent evaluation. (Ex J 18 & L 18)

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.

Student IEPs fail to reflect accurate Student levels and indicate a lack of progress over the past several years, with the most recent IEP acknowledging the need for Compensatory Services. (Ex B, D, G & L 18)

Parent obtained Student testing evidences severe delays. Student is currently in 9th grade and Results indicate Student independent levels to be 2nd grade for Reading and Math. (Ex M 7) [REDACTED] sets forth areas of Student delay and plan to remediate Student skills to bring him to grade level. (Ex H 4)

Uncontested Testimony confirms the Student’s severe delay, and need for Compensatory services. (Ex M 7)

Testimony includes cost of evaluating the Student, and coat of remedial, individual tutoring sessions:

o Diagnostic Evaluation fee: $[REDACTED].00 o Registration fee: $[REDACTED].00 o One-to-one hourly instruction fee: $[REDACTED].00 (Ex M 11) Cost of services sought by the Parent are not contested as unreasonable.

I find the Student is entitled to the Compensatory Services sought, as outlined above, and Ordered below.

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 Metrocards to facilitate travel to and from the tutoring sessions, anticipated to be obtained via [REDACTED]. (Ex A 15)

I find evidence supports the provision of a special education transportation for the Student, to obtain Compensatory Services, necessary due to the DOE failure to offer the Student a FAPE, for the past several years.

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 compensatory services for the Student, in the form of individual educational services, to be utilized by 12/31/2025. Rate of service to be paid at reasonable market rate, such as [REDACTED] Rate, set forth below.

3. Student Compensatory Services shall include a prescribed curriculum consisting of the 902 hours of instruction in the following subjects:

Subject Hours of Instruction Verbal 312 hours Vocabulary/Word Attack/Spelling 160 hours Writing/Language Arts 60 hours Study skills 15 hours Math 355 hours

4. The DOE shall directly fund Student Compensatory Services, including Diagnostic Testing Fee and Registration Fee, as indicated below:

[REDACTED] Diagnostic Evaluation fee: $[REDACTED].00 [REDACTED] Registration fee: $[REDACTED].00 [REDACTED] One-to-one hourly instruction fee: $[REDACTED].00

5. The DOE shall provide each the Student, and Parent, with a Metrocard, to facilitate transportation to and from the Compensatory Services, presently anticipated to be delivered via [REDACTED].

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

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

DATED: April 15, 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.

Footnotes

[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.