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Special Education Law
DECISIONDistrict PrevailedIHO Case No. 596329

Impartial Hearing Decision

September 21, 2023·Randy Glasser·REDACTED (the “District” or “DOE”)

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

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

District: REDACTED (the “District” or “DOE”)

Hearing Requested by: REDACTED, Esq., on behalf of REDACTED (the “Parent”) and the Student

Record Close Date: September 21, 2023

Hearing Officer: Randy Glasser, Esq.

On February 10, 2023, REDACTED, III, Esq., filed a due process complaint dated February 7, 2023 (“DPC”) on behalf of the Parent and her child, the Student, regarding her special education program and services for the 2022/2023 school year, pursuant to the Individuals with Disabilities Education Act (the “IDEA”) (Parent Ex. “A”). The District filed an Answer dated February 17, 2023 (DOE Ex. “2”). This Hearing Officer was appointed as the Impartial Hearing Officer (“IHO”) on March 13, 2023. A hearing was held on May 3, 2023, May 19, 2023, May 26, 2023, and June 27, 2023.

The District submitted Exhibits “1” through “24” into evidence, while the Parents submitted Exhibits “A” through “C” into evidence, with “D” and “E” only marked for identification. Pursuant to this IHO’s direction, the parties submitted written closing statements (see: IHO Ex. “II” and “III”). The compliance date for this matter has been extended to September 23, 2023.

BACKGROUND AND POSITIONS OF THE PARTIES

The Student is REDACTED (REDACTED) years old and classified as a student with an Other Health Impairment (DOE Ex. “5”). A neuropsychological evaluation dated March 3, 2022, describes the Student’s intellectual abilities, receptive language, expressive language, memory, self-regulation, fine motor coordination and behaviorally (District Ex. “14” at pp. 1-2).

The Student’s Individualized Education Program (“IEP”) dated August 11, 2022, recommends the following special education program and services, both for the ten (10) month school year and extended school year: Special 8:1+3 class, five (5) hours and thirty (30) minutes per session, one (1) time per day, five (5) days per week, adaptive physical education three (3) times per week, thirty (30) minutes per session, individual occupational therapy, three (3) times per week, thirty (30) minutes per session, individual speech language therapy, four (4) times per week, thirty (30) minutes per session, and individual physical therapy, one (1) time per week, thirty minutes per session (District Ex. “5”).

The Parent asserts that the Student’s program for the 2022/2023 school year failed to provide her with a free appropriate public education (“FAPE”), in that based upon the Student’s needs she requires a residential placement at the REDACTED or a similar program[1] (DOE Ex. “1”; IHO Ex. “III” at pp. 5-13, 15-23, 25-28; see also: District’s opening statement at T. 107-118). The District maintains they have and continue to offer the Student a FAPE in her placement in the REDACTED (the “School”), which is the least restrictive environment, and where she also receives her related services, and the nursing staff appropriately address her medical needs (IHO Ex. “II” at pp. 12-26, 29; see also: District’s opening statement at T. 96-107).

The Student’s eligibility and classification are not at issue in this case.

FINDINGS OF FACT AND DECISION

A. Introduction: The IDEA provides that children with disabilities are entitled to a free appropriate public education (“FAPE”) (20 U.S.C. § 1400 (d)(1)(A)). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensively written IEP (Id., 20 U.S.C. §1414(d); 34 C.F.R. § 300.17). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; (b) the IEP is developed through, the IDEA's procedures, and (c) the IEP is reasonably calculated to enable the student to receive educational benefits. Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist., RE-1, 137 S. Ct. 988 (2017).

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in the parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). Since the Parents are not seeking tuition reimbursement, they do not have the latter burden.

The District presented six (6) witnesses on its direct case, REDACTED, Principal at the School, REDACTED, Student’s special education teacher at the School, REDACTED, the Student’s speech therapist at the School, REDACTED, REDACTED, REDACTED, Director of Special Education for the District, and REDACTED, classroom nurse for Student at the School (via Affidavit, entered into evidence as IHO Ex. “I”).

The Parent presented two (2) witnesses on her direct case, the Parent and REDACTED, pediatric neuropsychologist, and licensed psychologist in the State of New York (Tr. 795).

The District presented one rebuttal witness, [REDACTED].

The District argues that because the Student’s placement/program at the School for the 2022/2023 school year provided meaningful educational benefit in light of her circumstances, the District did in fact provide a FAPE to the Student in the least restrictive environment (“LRE”), and a residential placement is not warranted (see: IHO Ex. “II” at pp. 1, 12-16 19-29).

While the Parent argues since the District cannot appropriately educate the Student in her home school, neighboring district, or in any of the programs offered by the Board of Cooperative Educational Services, a residential placement is warranted (IHO Ex. “III” at pp. 3, 5-7). Specifically, the Parent argues that due to the Student’s deficits in functioning, continuing bouts of regression, safety concerns at school and at home, medical history, and District’s lack of systematic tracing of the Student’s core programmatic elements and experiences, a residential placement is warranted (especially in light of the fact that the CSE embraced the results of REDACTED’s testing, but rejected her finding that the Student’s needs a residential placement) (Id. at pp. 8-14, 15-18).

As more fully explained below, the evidence in the instant case has shown that the Student did in fact obtain an education benefit in her placement and program for the 2022/2023 school year at the School, and thus, does not require a residential setting.

B. The District Provided a FAPE:

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. 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; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012); 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. Fla. 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)).

The DPC contains the following alleged procedural violations allegedly contributing to the District’s denial of a FAPE, which are addressed by this IHO:

1. The IEP did not adequately or appropriately address all of the Student’s needs.

Since Parent’s attorney failed to develop this argument during the hearing or address same in the Closing Statement, this IHO finds that, based upon the record such argument is unsubstantiated. Nonetheless, there was extensive testimony proffered by District witness(es) as to e.g., how the program at the School addresses the Student’s developmental delays and total communication needs (T. 507), the strategies and supports used at the School to address the Student’s speech needs (T. 519-520), how the School is addressing her occupational therapy needs (T. 521-522), behavioral needs (T. 266-271), health and medical needs (T. 260-262, 522-523), assistive daily living skills needs (T. 523-524), and her needs when interacting with peers (T. 525), how her speech language needs are being met at the School (T. 391-392, 393-394), and how her instruction is individualized to address her needs (T. 526-527).

2. The IEP goals were not appropriate or sufficient to address all the Student’s needs and the ways in which her disability impacts her ability to learn and make progress. Further, the goal(s) were vaguely written and did not include clear measurable targets and appropriate evaluation measures.

Similarly, the Parent has failed to substantiate this argument either on the record or in her Closing Statement regarding the goals on the IEP dated August 11, 2022 (DOE Ex. “5”, IHO Ex. “III”). The Closing Statement merely contains further argument(s) on this point with no citations to the record. While the District elicited extensive testimony regarding the development of the goals, why they are appropriate, and the fact that the Parent did not object to the goals at the CSE meeting (T. 527-528, 531-534, 826, 827).

3. “The goals and services failed to sufficiently address the myriad of ways that the Student’s disability impacts her performance at school. Further, they failed to adequately address her needs in other areas, including but not limited to ADL skills, behavior, focusing/attention, social interaction, generalization, self-care skills, community integration, her ability to ascertain danger and sensory integration.” In addition to the discussion above under point “2”, the District elicited testimony regarding the Student’s eating skills, and how they are being addressed (T. 375-376, 521, 522, 160-161), her behavior at school and at home and how it is being addressed (T. 148, 149-150, 249, 267-272, 332, 472-473, 585, 608, 616), her focusing and attention and goals regarding same, and her ability to ascertain danger or safety concerns (T. 148, 582-582,628-629), and social interaction, which includes but is not limited to her language needs (T. 391, 393, 632-633). The Parent failed to substantiate her claim that the District failed to address the Student’s generalization and sensory integration needs, especially since these were not identified as needs on the IEP (DOE Ex. “5”).

4. “The IEP recommendations were not based on legally sufficient evaluative data”:

To the contrary the District explained how data was taken and used to develop the Student’s program at the CSE meeting (145, 149-150, 251-252, 254, 292, 406, 592, 593, 595, 598, 599, 603, 674).

5. “The District predetermined the Student’s program recommendations”.

The Parent failed to elicit any testimony or evidence substantiating this claim.

6. “The District failed to recommend sufficient amounts of after-school related services”.

It appears the Parent is arguing that the Student needs after-school services in order to receive a FAPE, so that she can generalize concepts across school, home, and the community (IHO Ex. “III” at pp. 18-20). In partial support of this allegation the Parent alleges that REDACTED recommended the Parent obtain Office for People with Developmental Disabilities (“OPWDD”) services (which the District did not put on the Student’s IEP or make available to the Parent) and acknowledged that the District’s program did not account for the benefits of generalizing concepts (Id. at p. 19). However, a review of this cited discussion reveals that REDACTED was not necessarily recommending OPWDD and the services it provides in order for the Student to receive a FAPE, but rather in response to the Parent’s inability to otherwise obtain home services. Moreover, REDACTED talks about the benefit of the school team, outside providers and the Parent to meet and share ideas, but once again does not state this is necessary in order for the Student to receive a FAPE. Finally, as noted above, “generalization” is not listed as a “need” on the Student’s IEP (DOE Ex. “5”).

Several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined (as it has been in the instant case), that the student is otherwise likely to make progress in the classroom (see Thompson R2-J Sch. Dist. v. Luke, 540 F.3d 1143, 1151-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573-74 (11th Cir 1991)). Therefore, even though the after-school services may have provided value so that the Student can generalize skills, they are not necessary in order for her to receive an educational benefit and therefore a FAPE from her program at the School.

7. “The IEP team applied blanket policies and considered administrative factors and the availability of the resources over the Student’s needs in formulating her IEP”.

To the extent that such allegation is related to the District’s provision of a FAPE to the Student, it is addressed herein. In addition, "systemic violations [are] to be addressed by the federal courts," and not Impartial Hearing Officers, as opposed to "technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators" (Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 (W.D.N.Y. 2009), aff'd, 353 Fed. App'x 461 (2d Cir. 2009)).

8. “The IEP team’s decisions regarding classroom ratio, related services, classification, and other aspects of the Student’s IEP were arbitrary and not tied to the Student’s individual needs”.

First, classification was not an issue in these proceedings. Moreover, and to the contrary, see discussion above for Point “2”, “3” and “4”, discussion below regarding appropriateness of program and the transcript at pages 167, 259, and 469.

9. “The IEP team did not recommend appropriate services, supports and goals to address the Student’s delays and issues with ADL skills, leisure skills, generalization or community integration”.

See discussion below.

10. The recommended placement lacked sufficient staffing to ensure the proper implementation of the Student’s program”.

In addition to the discussion under Point “8” above, the School has appropriate nursing staff to meet the Student’s needs (T. 824), the School’s program meets the Student’s needs (Tr. 627), and the Student has a 1:1 provider and is therefore never left alone when transitioning from location to location (T. 632)

11. “The recommended program was not reasonably calculated to confer meaningful educational benefit to the student”.

The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 (2017)). 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. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). 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).

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 adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). 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)). 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 Endrew F., 137 S. Ct. at 1001 (holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"); Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the 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). 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)), 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)). 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, 369-370.

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). 10 70 (1985); R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). 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).

The evidence in this case supports the appropriateness of the Student’s placement at the School for the 2022/2023 school year. In this regard, the District elicited extensive testimony demonstrating how the School is addressing and meeting the Student’s needs e.g., how the School ensures consistency in terms of the delivery of supports and services to the Student (T. 144-148), special training provided for the Student’s team related to her academic, health, communication and medical needs (T. 148-149), the Student’s profile as a learner and how the School’s program is addressing/supporting her (T. 150-155), the alarm system implemented for the Student (T. 155-157), specific adaptive furniture used for the Student (T. 158-159), communication and collaboration between the School and Student’s home (T. 161-163, 273-275, 296-299, 299-301), how the nursing staff is working with Student to address her health needs (T. 166-168), how closely staff is working with and monitoring her throughout the day (T. 164-166), the hand-over-hand support the Student requires and is provided (T. 168-170), there are no concerns about program’s ability to meet Student’s needs (T. 181), how concerns about Student’s behavior are addressed (Tr. 185-187), the Student’s communication style and how the Augmentative Communication Device is integrated into her instruction, (T. 240-244), integration of recommendations by REDACTED contained in DOE Ex. 15 (T. 275-285), consultation between the Student’s related service providers and staff (T. 290), behavioral strategies monitored through data collection; there are currently no concerns about her safety (T, 292, 292-293), the growth in her communication skills at the time of the hearing versus one-and-a-half years beforehand (T. 267-239), her development since the Speech Therapy Services Reevaluation Report dated March 25, 2021 (T. 383-385), overall progress the Student has made during the 2022/2023 school year in speech (T. 392, 413), specific speech goals Student is working on in the School (T. 393-394), how the School is meeting the Student’s needs, including but not limited to individualizing instruction (T. 523-525, 527), REDACTED felt the Student’s academic and behavioral needs were being met at the School (T. 620-621), REDACTED reported that she saw marked improvement in the program at the School and the Student’s behaviors when she observed her a second time in December 2022 (T. 622-623), the School is an appropriate placement because it meets her needs in the least restrictive environment, including her medical, academic, behavioral, safety (T. 627-628), and related services’ needs (T. 628-629), it provides appropriate instruction control and attention regulation for the Student (T. 630), and addresses and supports her personal needs (T. 630-631), the physical design of the building is appropriate to support her (T. 631-632), and the School addresses her social and communication needs (T. 632-633) (see also: IEP Progress Report for 2022-2023 at DOE Ex. “8”).

The appropriateness of the School was further supported by the expert opinion expressed by REDACTED at the hearing that the Student’s needs are being met in the program, which includes but is not limited to instruction in life skills, task initiation communication, behavior support, elopement system, a small ratio of students to staff and an alternative curriculum and related services (T. 468-469, 472-473). Accordingly, the Student is making meaningful progress in light of her circumstances and her program at the School is appropriate.

Notably, REDACTED’s opinion that the Student’s day program at the School is not appropriate was unsubstantiated because for example, she has never visited the School (T. 824-825), has no familiarity with the School’s design, environment, adaptive programming and/or curriculum, e.g., as it relates to reading, and math, (T. 825), has had neither written nor oral communication with the staff at the School regarding their reports and/or impressions of the Student’s needs and challenges in that setting (T. 818-820, 852), was unaware that a behavioral specialist was working with the Student at the School (T. 852), wrote in her report that the Student was increasingly aggressive and unsafe at home, but had never observed her at home (T. 826), was aware of the fact that the Student used an Assistive Augmentative Communication (“AAC”) Device, but did not utilize the AAC when testing her (T. 818-819, 851-852), and is not aware of/understand the token system used at the School and referenced in REDACTED’s report (T. 842-843).

12. “The District failed to faithfully implement the Student’s recommended program”:

See discussion below in Point “1” under C. Residential Placement.

C. Residential Placement:

The Parent argues that a residential program is appropriate for the Student for the reasons set forth below, which are addressed by this IHO:

1. The Parent appears to allege that the District erroneously relied upon its functional behavioral assessment (“FBA”) and School data as the basis for denying a residential placement for the Student (see pp. 6 – 7 of IHO Ex. “III”). The Parent appears to continue to allege that since an FBA is not a behavior intervention plan (“BIP”), which the District failed to prepare until December 2022 (even though the August 11, 2022 IEP at DOE Ex. “5” stated that one had been prepared), and the District mishandled the Student’s social/emotional/behavioral challenges, this constitutes a “material failure of [the District] implementing the IEP.” To the contrary, as more fully explained above, the District showed how the Student made meaningful progress in light of her circumstances, including but not limited to her behaviors, and thus her day placement was appropriate. Moreover, this IHO notes that the FBA dated August 11, 2022 [the same date as the IEP that states that there is a BIP] concludes:

The writer of this document is advocating for a BIP to be implemented for the following behaviors: Elopement/Attempted Elopement. A BIP will be implemented within 60 school days of the FBA meeting.

At this time the writer feels that the classroom management plan can effectively support [the Student’s] SIB [self-injurious behaviors] and her aggressive behaviors within the learning environment at the [School]. During this assessment period, there was a low frequency of occurrences of Aggression and SIB as noted within the baseline data section of this document. The writer also reviewed the behavioral supports needed for [the Student] and she required no additional supports by the behavioral support team at the [School]. It should also be noted that [the Student] did not require any medical support for her self-injurious behaviors during the assessment period.

Thus, there appears to be some confusion as to whether or not a BIP actually existed when the August 11, 2022 IEP was prepared. Regardless, according to the IEP the School was appropriately addressing the Student’s behaviors at that time and no further behavioral supports were necessary. Moreover, even though it was approximately seventy-one (71) and not sixty (60) school days after the FBA meeting [which appears to be the CSE meeting held on August 11, 2022], a BIP dated December 23, 2022[2], was prepared, and implemented for the Student, the evidence has shown that the School has and continues to appropriately address the Student’s behaviors[3].

2. The Parent appears to argue that due to the Student’s deficits in functioning, continuing bouts of regression, safety concerns at School and home and longitudinal medical history, a residential placement is supported for the Student (IHO Ex. “III” at pp. 8-12). However, as aforementioned, the District submitted extensive testimony and evidence proving how it is addressing the Student’s functioning deficits, safety concerns and medical history and resulting in her making meaningful progress. Thus, this allegation is unsubstantiated.

In terms of the Parent’s argument regarding the statement on her IEP dated August 11, 2022, that she “required constant supervision and assistance as needed for all areas”, it does not in and of itself substantiate a need for a residential placement; especially since the School is appropriately addressing the Student’s needs (Id. at p. 10).

3. The Parent argues that due to the Student’s alleged regression in her day program at the School, a residential program is appropriate (Id. at 10). In this regard, in C.T. v. Croton -Harmon Union Free Sch. Dist., 812 F. Supp 2d 420, (S.D.N.Y. 2011), the Court held in relevant part:

A state must fund a residential program for a disabled child when it is necessary for the child to make meaningful educational progress. Courts focus on "whether the student's conduct outside of the school building and outside the normal hours of the school day is such that it impedes [the student's] ability to derive an academic benefit from a day program." M.H. v. Monroe-Woodbury Cent. School Dist., 296 Fed. Appx. 126, 128 (2d Cir. 2008). As the Second Circuit has observed, "While some children's disabilities may indeed be so acute as to require that they be educated in residential facilities, it is appropriate to proceed cautiously whenever considering such highly restrictive placements. IDEA's preference is for disabled children to be educated in the least restrictive environment capable of meeting their needs." Walczak, 142 F.3d at 132 (2d Cir. 1998).

Courts in this district and the Second Circuit are reluctant to find that a residential placement is required in the absence of clear evidence indicating that such a placement is the child's only means of achieving academic progress.

As the Second Circuit recently noted, "in general, the Second Circuit requires that a court point to objective evidence of a child's regression in a day-program before finding that a residential placement is required by the IDEA." M.H. ex rel. A.H., 296 Fed. Appx. at 128 (denying reimbursement for a residential program where there was no evidence of regression in the child's day program placement and no testimony by certified experts supported the parents' fears of relapse).

Id. at 432-433 (emphasis added).

In this regard, the Parent cites several instances of such alleged regression. For example, the Parent cites the following quote from the Student’s IEP dated August 11, 2022, “There may have been some regression of these skills due to her time out of the classroom over the summer and other factors”. Notably, all students regress over the summer when they are out of the classroom[4]. Moreover, Parent’s counsel appears to equate unreached goals (“... again we see regression and unreached goals”, (Id. at p. 11)) and fluctuation in the Student’s performance in the classroom to regression; however, they are not the same. Finally, Parent’s counsel cites the following quote from REDACTED’s evaluation, “[The Student] appears to regress behaviorally at times of illness and during increased seizure activity, which has had an impact on her overall development... “(DOE Ex. 14 at p. 6). Notably, this quote ends with, “... development, as per parent report” (Id.) (emphasis added). Thus, it is the Parent, that is reporting this behavioral regression and not the District. Nonetheless, even though the Student has evidenced some regression in the classroom e.g., when there is a medication change, break in her program over the summer, overall, the District has demonstrated that the Student has exhibited meaningful progress in light of her circumstances and thus, a residential placement is not warranted.

4. The Parent appears to argue that REDACTED’s opinion regarding maintaining the status quo for the Student in her current placement at the School might change in light of her admission that before rendering an opinion regarding the Student’s placement she would benefit from having more information about the Student (IHO Ex. “III” at pp. 14-15, T. 491, 493). However, after being presented with the additional information cited on p. 15 of Parent’s Closing Statement, REDACTED did not state that she was changing her opinion regarding the appropriateness of the Student’s current placement. Rather, after being asked this question, she stated, “the more information you get the better the recommendation can be. I rendered an opinion, which I noted was directly based off my observations and my conversations”, but regardless, still maintained her opinion regarding the appropriateness of the Student’s current placement (T. 492).

5. Next the Parent argues that there is a medical basis to recommend a residential placement for the Student (Id. at pp. 15-18). As stated above, the School maintains that it can and in fact does appropriately address the Student’s medical needs (see: Infra).

6. The Parent appears to argue that based upon REDACTED’s opinion expressed in her report regarding the appropriateness of a residential placement for the Student and at the hearing, which is based in part on the opinions expressed by REDACTED and REDACTED in their letters dated April 15, 2023, and November 17, 2023, respectively at Parent Ex. “A” and “B”, a residential placement is appropriate for the Student. In this regard REDACTED’s letter states in relevant part, “[the Student’s] mother has requested a residential placement. I agree that this is medically appropriate and would be the best plan to ensure her health and safety” (Parent Ex. “A”), and REDACTED’s letter states in relevant part, “[the Student’s] mother is requesting residential placement. I agree that this would be the best plan to ensure the health, safety, and well-being of [the Student]” (Parent Ex. “C”). However, on cross examination, REDACTED admitted that she has not spoken with either REDACTED or REDACTED regarding these statements contained in each of their letters, and therefore is unaware of the basis of this statement e.g., whether or not they believe a residential placement is educationally appropriate for the Student and why. Notably, REDACTED’s letter is dated approximately two years ago, November 17, 2021, which brings into question the relevance of such opinion expressed therein, at this time. In addition, and as more fully explained above, the District is legally obligated to provide an “appropriate” and not the “best” program for the Student. Finally, the reasons set forth above, as to why REDACTED’s opinion regarding the Student’s the appropriateness of the Student’s placement at the School is without merit, also undermine her opinion regarding the appropriateness of a residential placement for the Student. Thus, this IHO has given little weight to REDACTED’s opinion expressed regarding a residential placement for this Student.

7. Parent also appears to allege that since there is a lack of generalization of the Student’s skills across home, school, and community, this supports their belief that a residential placement is appropriate (IHO Ex. “III” at. pp. 18-20). To the contrary, several courts have held that the IDEA does not require school districts, as a matter of course, to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom (see, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. 2016); L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 (S.D.N.Y. 2016), aff'd in part, 674 Fed. App'x 100 (2d Cir. 2017); P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 (S.D.N.Y. 2014); M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 (S.D.N.Y. 2014); see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991)). Thus, a residential placement is not warranted for the Student in the instant case.

Finally, a residential placement is not appropriate unless it is required for a student to benefit from his or her educational program (M.H., 296 Fed. App'x at 128; Mrs. B., 103 F.3d at 1121-22 (2d. Cir. 1997); see Educ. Law § 4402(2)(b)(2); 34 CFR 300.104; 8 NYCRR 200.6(j)(1)(iii)(d)). In general, the Second Circuit has required objective evidence that a student cannot obtain an educational benefit in a less restrictive setting before finding that a residential placement is required by the IDEA (see M.H., 296 Fed. App'x at 128; Walczak, 142 F.3d at pp. 131-32). In the instant case, as aforementioned, the District has provided ample evidence demonstrating that the Student is making meaningful progress and therefore benefiting from her program in the least restrictive environment at the School. Thus, a residential placement is neither required nor appropriate for the Student.

The Parent requests in part an order remanding this matter to the CSE, directing them to secure a residential placement for the Student at REDACTED or a similar program ((DOE Ex. “1” at p. 9). As aforementioned, this IHO has found that the Student’s functioning levels do not warrant a residential placement. Nonetheless, even if they did, there has been insufficient evidence/testimony proffered demonstrating the appropriateness of REDACTED program. The Parent testified that she thought REDACTED would be a good fit for the Student, and why, even though she has never seen the placement in person due to COVID, only online and through videos (703-704, 727-728); and she spoke with a woman from admissions in 2019/2020, but cannot remember the name, who informed her that after “they met” from REDACTED, they concluded Student would be a good fit for this program (705, 760). Since this discussion with the woman from REDACTED, was approximately three to four years ago, we do not know who made or the basis for the determination that this program was a good fit for the Student, this IHO is unable to find that this program at REDACTED is appropriate for the Student, even if this IHO found that a residential program was warranted.

D. Compensatory Education:

1. Introduction: In the Second Circuit, it is established that the IDEA allows a Hearing Officer to fashion an appropriate remedy, and therefore courts have held compensatory education is an available option under the IDEA to make up for denial of a FAPE. P. v. Newington, 546 F.3d 111 (2d Cir. 2008).

Ordering compensatory education is not automatic or a matter of quid pro quo, where a student gets one hour for every hour missed of compensatory time. Accordingly, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than being awarded pursuant to a formula, the ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from the special education services the school district should have supplied in the first place. Reid v. Dist. of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005) (Reid was cited by the second circuit in Newington, in reaching its conclusion that compensatory education is an option. Newington at 123). Notably, Reid, supra, emphasizes that compensatory services are equitable relief; they are not a contractual remedy. Reid at 123.

There are primarily two competing approaches utilized in fashioning a compensatory education award, namely the “quantitative” approach authored by the Third Circuit[5], and the “qualitative approach relied upon by the Sixth and D.C. Circuits[6]. Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount, of services missed so that the services can be made up through compensatory education. M.C. on behalf of J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807 F. Supp. 860 (D.N.H. 1992). However, neither the Second Circuit[7] nor the New York courts[8] have taken a position on a preferred approach. Accordingly, Hearing Officers have discretion as to which approach to apply.

No matter which approach, when determining the appropriate equitable remedy for compensatory services, the IHO may go back in time for many years (see: G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601 (3rd Cir. 2015)). Moreover, the IDEA’s two year “statute of limitations does not apply to limit the permissible periods of compensatory educational awards.” Id at 610. Among the lower court cases cited by G.L. to support this proposition was the New York case of K.H. v. New York City Dep’t. of Educ., No. 12-CV-1680, 63 IDELR 295 (E.D.N.Y. 2014).

Moreover, when a school district deprives a child with a disability of a FAPE in violation of the IDEA a court or hearing officer fashioning appropriate relief may order compensatory education (20 U.S.C. 1415(i)(2)(C)(iii); 34 C.F.R. 300.516(c)(3); Sch. Com. of Burlington v. Dep’t. of Educ., 41 U.S. 359, (1985). Generally, said denial must be more than de minimis Catalan v. Dist. of Columbia, 478 F.Supp.2d 73, 75 (D.D.C. 2007) (court found no evidence that the handful of missed speech therapy sessions added up to a denial of FAPE) quoting Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 348-349 (5th Cir. 2000), cert. denied, 531 U.S. 815 (2000). As explained by the Court in M.C.:

a school district that knows or should know that a child has an inappropriate IEP or is not receiving more than a de minimis educational benefit must correct the situation. If it fails to do so, a disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem. We believe that this formula harmonizes the interests of the child, who is entitled to a free appropriate education under IDEA, with those of the school district, to whom special education and compensatory education is quite costly.

Id. at 397.

In the instant matter, as stated above the evidence and testimony proved the appropriateness of the IEP and the special education program contained therein, provided to the Student for the 2022/2023 school year. Accordingly, the Student received a special education program and services that was “appropriate” and therefore equates to more than a de minimis educational benefit. Thus, the Student is not entitled to compensatory services.

D. 504 Claims:

The Parent failed to address in the hearing or her Closing Statement, her allegations in the DPC that for the 2022/2023 school year the District committed numerous systematic, illegal actions and inactions in relation to the Student (see: IHO Ex. “III” at pp. 7-8). Accordingly, this IHO finds that such claims were unsubstantiated and, without merit.

E. Attorneys’ Fees:

The DPC requests in part that this IHO award attorneys’ fees (DOE Ex. “1” at p. 9). It is well settled that the IDEA does not authorize an administrative officer to award attorneys' fees or other costs to the prevailing party, and entitlement, if any, to costs must be determined by a court of competent jurisdiction (see 20 U.S.C. § 1415(i)(3)(B); Murphy v. Arlington Cent. Sch. Dist. Bd. of Educ., 402 F.3d 332 (2d Cir. 2005); see also B.C. v. Colton-Pierrepont Cent. Sch. Dist., 2009 WL 4893639, at *2 (2d Cir. 2009). Accordingly, such requested award is denied.

ORDER

IT IS HEREBY ORDERED that the District provided a FAPE to the Student for the 2022/2023 school year; and

IT IS FURTHER ORDERED that the Parent’s request to remand this matter with a direction for the CSE to investigate and secure a residential placement for the Student either at REDACTED or a similar placement is denied; and

IT IS FURTHER ORDERED that the Parent’s request for an award of compensatory services is denied; and

IT IS FURTHER ORDERED that the District has not violated the Student’s and Parent’s rights under the IDEA, Section 504, or New York State Law; and

IT IS FURTHE ORDERED that the Parent’s request for the funding of attorneys’ fees is denied.

September 21, 2023

Randy Glasser

Randy Glasser, Esq.

Impartial Hearing Officer

NAMES AND TITLES OF APPEARANCES

FOR HEARING HELD ON MAY 3, 2023

DISTRICT:

REDACTED, Esq., REDACTED

REDACTED, Director, the District

REDACTED, Principal, the School

REDACTED, Special Education Teacher, the School

PARENT:

REDACTED, Esq., REDACTED

REDACTED, Parent

FOR HEARING HELD ON MAY 19, 2023

DISTRICT:

REDACTED, Esq., REDACTED

REDACTED, Director Special Education, the District

REDACTED, Speech Therapist

REDACTED

PARENT:

REDACTED, Esq., REDACTED

REDACTED, Parent

FOR HEARING HELD ON MAY 26, 2023

DISTRICT:

REDACTED, Esq., REDACTED

REDACTED, Director Special Education, the District

REDACTED, Nurse, the School

PARENT:

REDACTED, Esq., REDACTED

REDACTED, Law School Student

REDACTED, Parent

FOR HEARING HELD ON JUNE 27, 2023

DISTRICT:

REDACTED, Esq., REDACTED

REDACTED, Director Special Education, the District

PARENT:

REDACTED, Esq., REDACTED

REDACTED, Parent

REDACTED, Law School Student

REDACTED

DOCUMENTS ENTERED INTO THE RECORD

IHO Exhibits

I. Affidavit, 5/24/2023, 3 pages

II. DOE’s Closing Statement. 5/31/2023, 11 pages

III. Parents’ Closing Statement, 6/3/2023, 6 pages

  • • DOE Exhibits 1. Due Process Complaint, 2/7/2023, 9 pages 2. Due Process Complaint Response, 2/17/2023, 6 pages 3. 2022-2023 Annual Review IEP, 3/9/2022, 25 pages 4. 2022-2023 Annual Review Prior Written Notice, 3/9/2022, 2 pages 5. 2022-2023 Program Review IEP, 8/11/2022, 25 pages 6. 2022-2023 Program Review Prior Written Notice, 8/11/2022, 2 pages 7. IEP Progress Report 2021-2022, 7/12/2021-6/22/2023, 17 pages 8. IEP Progress Report 2022-2023, 8/11/2022-9/21/2023, 17 pages 9. Occupational Evaluation Report, 4/2/2021, 10 pages 10. Psychoeducational Evaluation, 2/24/2021, 6 pages 11. Speech Therapy Services Reevaluation Report, 3/25/2021, 4 pages 12. Physical Therapy Annual Progress Report, 4/14/2023, 5 pages 13. Functional Behavior Assessment, 8/11/2022, 8 pages 13(A). Behavior Intervention Plan, 12/23/2022, 14 pages 14. Neuropsychological Evaluation, 3/3/2022, 16 pages 15. Behavioral Observation Summery Report And Recommendations, 10/6/2022, 4 pages 16. Behavioral Observation Summary Report And Behavioral Recommendations, 12/3/2022, 3 pages 17. The School’s Nurse's File/Log With Cover Letter, School Year 2022-2023, 2/7/22-2/13/22, 16 pages 18. REDACTED Services Agency Events Report, 8/5/22-2/8/23, 40 pages 19. Seizure Action Plan And Medication Administration Form With Cover Letter 2022-2023 School Year, 5/19/2022, 5 pages 20. Email, 2/15/2023, 4 pages 21. Interagency Resolution Unit Helps Children, Youth And Young Adults With Complex Conditions Access Needed Services, undated, 1 page 22. Email Chain, 2/27/2023-3/2/2023, 10 pages 23. Email, 4/4/2023, 2 pages 24. Email, 4/4/2023-2/5/2023, 2 pages
  • • Parent Exhibits A. Letter, 4/5/2023, 1 page B. Curriculum Vitae, undated, 5 pages C. Letter, 11/17/2021, 1 page D. Neurodevelopmental Health Services 2020-2021, 1/14/2022, 2 pages (marked for identification only)

E. Additional documents, 3/3/2022, 1 page (marked for identification only)

NOTICE OF RIGHT TO APPEAL

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

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

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

Footnotes

[1] In addition to a residential placement, the DPC requests that “if the District is unable to implement an appropriate IEP and establish an appropriate number of compensatory education “make-up” services, the Parent requests that” this IHO, find and order the following: (a) the Student was denied a FAPE for the 2022/2023 school year; (b) “a remand of this matter with a direction to the CSE to investigate and secure a residential placement for the Student; Specifically, REDACTED [footnote omitted], or a similar program”; (c) “findings of fact in favor of the Parent and Student with respect to the facts alleged herein”; (d) compensatory services, (e) the District has violated the Student’s and Parent’s rights under the IDEA, Section 504, and New York State law; (f) District funding for attorneys’ fees; and (f) “Any other relief that the Impartial Hearing Officer considers proper” (DOE Ex. “1” at pp. 8-9).

[2] DOE Ex. “13A”.

[3] This computation is based upon the District’s school calendar for the 2022/2023 school year at https://drive.google.com/file/d/1A4SNdCk3bSnaTJKigZ2uW6zkaZDKCuqN/view last accessed 9/18/23).

[4] Pursuant to guidance issued by the New York State Education Department all student’s regress over the summer thus necessitating a “typical period of review” or “reteaching” ranging between 20 and 40 school days [when a typical student returns to school in the fall]. As a guideline for determining eligibility for an extended school year program, a review period of eight weeks or more would indicate that substantial regression has occurred https://www.p12.nysed.gov/specialed/publications/policy/esy/qa06.pdf (last accessed 9/18/23).

[5] See, e.g., M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) holding that when a school district knows or should know that a disabled child’s program is deficient yet fails to correct it, the child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the program. See also: Manchester Sch. Dist. v. Christopher B., 807 F. Supp. 860 (D.N.H. 1992).

[6] See, e.g., Reid v. Dist. of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (adopting a flexible, fact-specific approach in which the ultimate award is reasonably calculated to provide the educational benefits that likely would have occurred from special education services that the school district should have supplied in the first place).

[7] See, L.O. v. New York City Dep’t. of Educ., 822 F.3d 95 (2d Cir. 2016) (remanding to the district court to determine whether the student is entitled to relief by “’leav[ing) the mechanics of structuring the compensatory education award to the [D)istrict [C)ourt’s sound discretion’”); Doe v. East Lyme Board of Educ., 700 F.3d 440 (2d Cir. 2015 (remaining to the District court to decide whether compensatory education should be limited to the kinds of services specified in the student’ contested IEP or encompass analogous educational services appropriate to the student’s current needs).

[8] See, e.g., Student X. v. New York City Dep’t. of Educ., 51 IDELR 122 (E.D.N.Y. 2008) (noting that the Second Circuit has not adopted a test for determining how to calculate an award of compensatory education but awarding hour-for-hour).