Impartial Hearing Decision

FINDINGS OF FACT & DECISION

IHRS Number: 596833

Student Name: [REDACTED]

(hereinafter referred to as “Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

(hereinafter referred to as “District”)

Hearing Requested By: Parent

Dates of Hearings: May 15, 2023

June 9, 2023

Actual Record Close Date: June 28, 2023

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 15, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

NAMES AND TITLES OF PERSONS WHO APPEARED ON JUNE 9, 2023

For the Student:

[REDACTED], ESQ., Parent, pro se

[REDACTED], Parent

For the District:

[REDACTED], ESQ., Attorney

[REDACTED], Ed.D., Director of Pupil Personnel Services

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was initially requested by the parent of the student in a due process complaint received by the District on February 28, 2023. In dispute in this matter is whether the District offered the student a free appropriate public education (“FAPE”) from January 23, 2023, when the student’s recommended out-of-district placement revoked its placement offer, through April 4, 2022, when the District recommended that the student join a special class in the District’s high school (R. 65-67).^[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (“CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R. §§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(1)-(2), 300.507(a)(1).

An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(A), (h)(1)-(3); 34 C.F.R.

§§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii).

The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration of the resolution session period. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with State and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR

§ 200.5(k).

II. PROCEDURAL HISTORY

On February 28, 2023, the District appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). My appointment was done off the rotational list established by the New York State Education Department (“NYSED”) given my appointment to other (then) on-going matters involving the same student with a disability. See 8 NYCRR § 200.5(j)(3)(ii)(a)(1).

In his complaint, the parent alleged that the student was denied a “viable educational program and placement recommendation” after the student’s recommended out-of-district placement revoked its offer of placement to the student on January 23, 2023 (Ex. SD-1 at ¶ 3). As relief, the parent sought “an order compelling the convention of an “Annual Review” “CSE” for purposes of establishing an appropriate educational program and placement recommendation for the 2022-2023 school year” and “back-end compensatory education accruing from 1/23/23” (Ex. SD-1 at ¶ 4). On March 6, 2023, the District served the parent with a combined verified answer and motion to dismiss (Ex. SD-21).

A pre-hearing conference with the parties was held on March 24, 2023 to clarify the hearing issues, to discuss potential consolidation of this case with other then-pending matters involving the same student with a disability, and to discuss the status of related litigation in federal and state courts. See 8 NYCRR § 200.5(j)(3)(xi). At the conference, the parties’ agreed to keep this case separate from other then-pending matters involving the same student with a disability (R. 7-8).^[2] In light of NYSED’s approval of a chronological age-variance application for a 12:1+1 special class at the District’s high school, the parent moved for an interim order directing the District to place the student in that class immediately (R. 18-20; Ex. SD-16).^[3] The District opposed the parent’s motion, noting that an April 4, 2023 CSE meeting had been scheduled to discuss the impact of the chronological age-variance on its educational recommendations for the student (R. 20-23). Decision on the parties’ cross-motions was reserved pending the outcome of the April 4, 2023 CSE meeting (R. 30).

A status conference with the parties was thereafter held on April 13, 2023. At the conference, the parties advised me that the CSE had recommended that the student receive his instruction in the District’s 12:1+1 special class at its high school beginning on April 19, 2023 (R. 46-48, 50). Given that report, I advised that parties that the only remaining issue to be determined at the hearing is whether the student is entitled to compensatory education based on an alleged denial of a FAPE during the time period between January 23, 2023 and April 4, 2023 (R. 65-67).

Hearings on the merits of the matter were thereafter held on May 15, 2023 and June 9, 2023 (R. 77, 240). Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence.^[4] See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

The student is now [REDACTED] years old and has a medical diagnosis of Down Syndrome which has an impact on his motor and sensory development and performance in the education environment. The student's eligibility for special education and related services as a student with an intellectual disability is not in dispute in this hearing (Exs. SD-2, SD-3, SD-4, SD-5, SD-6).^[5] See 8 NYCRR § 200.1(zz)(7).

The student resides within the [REDACTED] (hereinafter referred to as the “Home District”). The Home District is an elementary school district which ends as grade six. When children finish sixth grade at the Home District, they have a choice between attending middle school and high school in the [REDACTED] (hereinafter referred to as the “Neighboring District”) or the District. For all times relevant to this hearing, the parents have elected for the student to receive instruction from the District. See Appeal No. 22-010 at 10 n. 13.

The student in this case has been the subject of nineteen (19) prior State-level administrative appeals.^[6] Accordingly, the parties’ familiarity with the student’s educational history is presumed and will not be restated here.

Due to the nearly continuous nature of the administrative due process proceedings and State-level appeals – and related federal district court proceedings – involving this student, he has been receiving his special education program under various pendency placements since approximately the 2015/16 school year. See generally Application of a Student was a Disability, Appeal No. 22-102. On September 20, 2019, the parties entered into a pendency agreement which, in sum and substance, provided that the student would receive related services in the District’s high school in the morning, including speech/language therapy, physical therapy, occupational therapy, and adaptive physical education. Thereafter, the student was to receive special education instruction in the local library, accompanied by an aide (Ex. SD-7). See Application of a Student with a Disability, Appeal No. 23-022 at 3.

The CSE developed an IEP for the student for the 2022/23 school year over two separate meetings held on August 1, 2022 and October 13, 2022 (Exs. SD-5, SD-6, SD-20 at ¶ 10). For the 2022/23 school year, the CSE recommended that the student receive the majority of his instruction in a 12:1+1 special class at the [REDACTED] (hereinafter referred to as the “Recommended District”), along with a 1:1 aide to navigate the building safely. The CSE also recommended that the student receive related services of: individual occupational therapy, two (2) times per week for thirty (30) minutes per session; individual physical therapy, two (2) times per week for thirty (30) minutes per session; individual speech/language therapy, three (3) times per week for thirty (30) minutes per session; small group (5:1) speech/language therapy, once weekly for thirty (30) minutes per session; individual special instruction, four (4) times per week for ninety (90) minutes per session at home and in the community; and individual parent counseling and training, two (2) times per month for sixty (60) minutes per session (Exs. SD-2 at 18-20, SD-3, SD-6, SD-20 at ¶ 18).

On October 14, 2022, the parent served the District with a due process complaint (IHRS No. 585749) which alleged, inter alia, that the CSE’s recommended placement of the student in the Recommended District did not offer him a FAPE in the least restrictive environment (“LRE”) (Ex. SD-21 at ¶ 26). That complaint was thereafter consolidated with another pending matter involving the same student with a disability, i.e., IHRS 580008 (Exs. SD-20 at ¶ 20, SD-21 at ¶ 26). In a Findings of Fact & Decision (“FOFD”) in IHRS No. 580008, dated April 28, 2023, I determined that the Recommended District program offered the student a FAPE in the LRE (Exs. SD-14 at 27, SD-20 at ¶ 21).

The parent appealed the April 28, 2023 FOFD to the SRO. In Appeal No. 23-093, the SRO concluded that “the October 2022 IEP offered the student an appropriate placement in the LRE for the 2022/23 school year” but found that the District denied the student a FAPE by failing to have an IEP in place before the start of the 2022/23 school year. See Application of a Student with a Disability, Appeal No. 23-093 at 18, 23 (SRO June 23, 2023). The SRO declined the parent’s request for compensatory educational services, however, given that “the student continued to receive related services and instruction under the 2019 pendency agreement.” See id. at 22. The SRO also concluded that “equitable grounds” warranted “a complete denial of relief” given that the parent’s lack of cooperation in scheduling an annual review CSE meeting hindered the District’s ability to offer the student a FAPE prior to the start of the 2022/23 school year See id. at 23.

On January 23, 2023, while proceedings in IHRS No. 580008 were ongoing, the Recommended District’s Assistant Superintendent for Student Services sent the District’s Director of Pupil Personnel Services (“PPS Director) an email revoking the Recommended District’s offer to accept the student in its 12:1+1 special class (life skills) program (Exs. SD-4, SD-20 at ¶ 26, SD-21 at ¶ 28). Although the Recommended District’s Assistant Superintendent “believed [that the student] would love the program, flourish in school-to-work opportunities, and expand on life-long friendships,” the offer of placement was revoked due to “verbal aggression from the parent demonstrated at the CSE” which made the Recommended District’s teachers who participated in the October 13, 2022 meeting feel “very upset” (Ex. SD-4).^[7]

On January 25, 2023, the District’s PPS Director sent screening packets to twelve (12) programs in order to locate a suitable placement for the student (Exs. SD-9, SD-20 at ¶ 27, SD-21 at ¶ 32). Every program, other than BOCES, responded that it did not possess an available placement for the student (Exs. SD-10, SD-20 at ¶ 27, SD-21 at ¶ 33). After receiving those responses, the District’s PPS Director sent the parents a letter (dated February 14, 2023) seeking their availability to participate in a CSE meeting on either March 17, 2023 or March 24, 2023 (Exs. SD-11, SD-20 at ¶ 28, SD-21 at ¶ 34). The parent responded by demanding that the meeting be held in February, rather than March (Exs. SD-12, SD-20 at ¶ 29, SD-21 at ¶ 35). On March 3, 2023, the District’s PPS Director sent the parents a letter (via email and regular mail) which enclosed the screening responses and informed the parents that BOCES had been unsuccessful in contacting them to participate in its intake process (Exs. SD-10, SD-13, SD-20 at ¶ 32, SD-21 at ¶ 38).

On March 6, 2023, NYSED granted a variance from the chronological age requirement for the student’s participation in the District High School’s 12:1+1 special class (Exs. SD-16, SD-20 at ¶ 33). Thereafter, on April 4, 2023, the CSE convened and recommended the student’s placement in the District High School’s 12:1+1 special class, starting on April 19, 2023.^[8]

IV. POSITIONS OF THE PARTIES

A. The District The parent’s complaint in this matter should be dismissed. The District provided the student with a FAPE between January 23, 2023 and April 4, 2023. The District did not violate the student’s right to a FAPE since it did not cause, and could not have prevented, the Recommended District’s revocation of its placement offer. The District did not have the power to force the Recommended District to maintain a placement for the student. Compensatory education is unwarranted as the student did not suffer an educational deprivation (Exs. SD-21, SD-22).

B. The Parent The District was responsible for the fact that the chronological age-variance was not approved as of January 23, 2023, when the Recommended District withdrew its placement offer. As soon as the Recommended District withdrew its placement offer, it should have educated the student in its high school as a single student, with access to lunch, electives, extracurricular activities and other educational benefits afforded to enrolled students. The District failed to take reasonable measures to implement NYSED’s March 6, 2023 age-variance approval in a timely manner. The student suffered an educational deprivation as a result of the District’s conduct (Ex. P-A).

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 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, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).^[9]

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. See Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 (2d Cir. 2014); 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). 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 has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see 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); 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. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R. § 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. See 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." See Rowley, 458 U.S. at 203. The "IDEA, [however,] 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." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379.

Additionally, school districts are not required to "maximize" the potential of students with disabilities. See 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.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also 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" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also 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. See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also 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. Board 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 C.F.R. § 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), 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 C.F.R. §§ 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 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).^[10]

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. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

A. Alleged FAPE Denial In his complaint, the parent asserts that the student had no viable educational program and placement following the Recommended District’s revocation of its placement offer to the student (Ex. SD-1 at ¶¶ 4-5).

As a threshold matter, I find that the parties give more weight to Recommended District’s January 23, 2023 email than it deserves. It is undisputed that on October 13, 2023, the District’s CSE recommended that the student receive instruction for the balance of the 2022/23 school year in the Recommended District’s 12:1+1 special class (life skills) program and that on October 14, 2023 the parent rejected that program via a due process complaint (Exs SD-2, SD-3, SD-14 at 6). Following that rejection, the Recommended District had no legal obligation to hold a seat open for the student in its 12:1+1 special class (life skills) program, see Appeal of Del Sonno, 45 Ed. Dept. Rep., Decision No. 15,256 (2005) (“districts have the discretion to accept or refuse to admit individual nonresident students”); Appeal of Holzer, 37 Ed. Dept. Rep. 549, Decision No. 13,924 (1998) (same); Matter of Hetko, 16 Ed. Dept. Rep. 52, Decision No. 9297 (same); see also N.Y. Educ. Law §§ 3202(1)-(2) (limiting the obligation of school district to provide tuition-free education to students whose parents or legal guardians reside within the district), and the District had no corresponding obligation to fund a seat for the student in the Recommended District’s 12:1+1 special class (life skills) program for the duration of litigation over that recommendation; and indeed, it may have been prohibited from doing so under State law, see N.Y. Educ. Law § 2045(1); 8 NYCRR § 174.2. The Recommended District’s revocation, therefore, did not deny the student a “viable educational program and placement,” as the parent has alleged, but only served to sever the Recommended District from NYSED’s chronological age-variance review (Exs. SD-8 at 3, SD-16 at 2 n.4).

Alternatively, should it be determined on appeal that the District’s CSE was obligated to reconvene and develop a new IEP for the student following the Recommended District’s revocation, I find that the District’s PPS Director took reasonable and timely actions to ensure that the student received a FAPE following the Recommended District’s revocation.

On January 25, 2023 (two days after Southampton’s January 23, 2023 revocation), the District’s PPS Director sent screening packets to twelve (12) programs in order to locate a suitable placement for the student (Tr. 232; Exs. SD-9, SD-20 at ¶ 27, SD-21 at ¶ 32). Every program, other than BOCES, responded that it did not possess an available placement for the student (Exs. SD-10, SD-20 at ¶ 27, SD-21 at ¶ 33). After receiving those responses, the District’s PPS Director sent the parent a letter (dated February 14, 2023) seeking their availability to participate in a CSE meeting on either March 17, 2023 or March 24, 2023 (Exs. SD-11, SD-20 at ¶ 28, SD-21 at ¶ 34). On March 3, 2023, the District’s PPS Director sent the parent a letter (via email and regular mail) which enclosed the screening responses and informed the parent that BOCES had been unsuccessful in contacting him to participate in its intake process (Exs. SD-10, SD-13, SD-20 at ¶ 32, SD-21 at ¶ 38). On March 6, 2023, NYSED granted a chronological age variance which would allow the student to participate in the District High School’s 12:1+1 special class (R. 18-20; Ex. SD-16). A CSE meeting was scheduled to take place on March 24, 2023, but the parents later informed the District that they were no longer available on that day for a CSE meeting. The CSE meeting was then rescheduled for April 4, 2023 (R. 284). On April 4, 2023, the CSE convened and recommended the student’s placement in the District High School’s 12:1+1 special class. The student remained in his pendency placement until April 19, 2022, when he joined the special class in the District’s High School (Ex. SD-20 at ¶ 33).

B. Relief - Compensatory Education Services

Turning to the relief requested by the parent, should it be determined on appeal that the District denied the student a FAPE between January 23, 2023 and April 4, 2023, the parent seeks “a judgement for back-end compensatory education accruing from 1/23/23” (Ex. SD-1 at ¶ 4).^[11]

The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014) (holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE); Newington, 546 F.3d at 123 (stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a [FAPE]"). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been had the district complied with its obligations under the IDEA. See Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address... the problems with the IEP").

In a recent matter, the parent clarified that a “back-end compensatory education award must be prospective in nature, and therefore must be issued in the form of a monetary judgment capable of facilitating a year’s worth of tuition at a post-secondary learning institution.” See Application of a Student with a Disability, Appeal No. 23-093 at 21. The sort of compensatory fund sought by the parent, representing monetization of requested compensatory education services, may be appropriate in certain instances, see, e.g., Streck v. Bd. of Educ. of E. Greenbush Cent. Sch. Dist., 408 Fed. App'x 411 (2d Cir. Nov. 30, 2010) (awarding a student an escrow account with funds for additional reading instruction); but see Millay v. Surry Sch. Dep't, 2011 WL 1122132, at *10-*12 (D. Maine Mar. 24, 2011) (declining to award a trust fund in light of its order of extended eligibility and setting forth other concerns with the trust fund remedy); however, to the extent that it resembles monetary damages, particularly to the extent that the parent requests money to be used for an unspecified post-secondary educational program to be delivered past the student's age of eligibility, the IDEA does not provide for, nor have the courts allowed, monetary damages, see Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 Fed. App'x 131, 133 (2d Cir. Sept. 14, 2012); Cave v. East Meadow Union Free Sch. Dist., 514 F.3d 240, 247 (2d Cir. 2008); Taylor v. Vermont Bd. of Educ., 313 F.3d 768, 786 n.14 (2d Cir. 2002); Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 483-86 (2d Cir. 2002); R.B. v. Bd. of Educ. of City of New York, 99 F. Supp. 2d 411, 418 (S.D.N.Y. 2000).

Further, the parent has failed to allege in his complaint or in his brief what services or instruction the student did not receive during the period between January 23, 2023 and April 4, 2023 (Exs. SD-1, P-A). In fact, the student continued to receive related services and instruction under the 2019 pendency agreement (Ex. SD-7). Taking the pendency program into account, I conclude that an award of compensatory education is not warranted. See North Kingston Sch. Comm. v. Justine R., 2014 WL 8108411, at *9 (D.R.I. Jun. 27, 2014) (finding that a request for compensatory education "should be denied when the deficiencies suffered have already been mitigated"), adopted, 2015 WL 1137588 (D.R.I. Mar. 12, 2015); Phillips v. Dist. of Columbia, 932 F. Supp. 2d 42, 50 (D.D.C. 2013) (finding even if there is a denial of a FAPE, it may be that no compensatory education is required for the denial either because it would not help or because the student has flourished in the student's current placement).

I have considered the parent’s remaining claims and find that they are without merit.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

The parent’s claim that the District denied the student’ a FAPE between January 23, 2023 and April 4, 2023 is DENIED, the District’s motion to dismiss is GRANTED, and the parent’s due process complaint is DISMISSED.

Dated: July 13, 2023

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 plan 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.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENT

A. Parent’s Post-Hearing Brief, undated, 12 pgs.

SCHOOL DISTRICT

1. Due Process Complaint w/ inferred paragraphs, rec’d 2/28/23, 2 pgs.

2. Individualized Education Program (IEP), 10/13/22, 24 pgs.

3. Prior Written Notice (PWN), 10/13/23, 4 pgs.

4. Email to [REDACTED] from [REDACTED], 1/23/23, 1 pg.

5. Transcript of Annual Review CSE Meeting, 8/1/22, 60 pgs.

6. Transcript of Annual Review CSE Meeting, 10/13/23, 78 pgs.

7. 2019 Pendency Agreement, 9/20/19, 3 pgs.

8. Letter to parties from SEQA (age variance), 1/3/23, 3 pgs.

9. Chart – Programs Canvassed, 1/2023, 1 pg.

10. Responses to Screening Packets, various dates, 12 pgs.

11. Letter to parents from [REDACTED], 2/14/23, 1 pg.

12. E-mail chain re: annual review, 2/14/23, 2 pg.

13. Letter to parents from [REDACTED], 3/3/23, 1 pg.

14. Findings of Fact & Decision, IHRS No. 580008, 4/28/23, 42 pgs.

15. Letter to parents from [REDACTED], 12/15/22, 2 pgs.

16. Letter to [REDACTED] from SEQA (age variance approval), 3/6/23, 3 pgs.

17. Letter to parents from [REDACTED], 2/10/23, 1 pg.

18. Student Schedule, 2/27/23, 1 pg.

19. Transcript of Annual Review, 4/4/23, 221 pgs.

20. Affidavit of [REDACTED], 5/8/23, 15 pgs.

21. Verified Answer & Motion to Dismiss, 3/6/23, 21 pgs.

22. District’s Post-Hearing Brief, 7/7/23, 15 pgs.

IMPARTIAL HEARING OFFICER

I. Order on Consolidation (IHRS Nos. 596833 & 580008), 4/28/23, 5 pgs.

II. Extension Order, 5/14/23, 1 pg.

III. Extension Order, 6/13/23, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.”

[2] Thereafter, in an April 28, 2023 Order on Consolidation, I determined that the parent’s due process complaint in IHRS No. 596833 would not be consolidated with IHRS No. 580008 after considering the parties’ input, the interests of judicial economy and the interests of the student (Ex. IHO-I at 5). See 8 NYCRR §§ 200.5(j)(3)(ii)(a)(2)-(4).

[3] By petition dated October 10, 2021, the parent filed an Article 78 proceeding in State Supreme Court (Albany County) to annul NYSED’s earlier denial of a chronological age variance application. In an August 17, 2022 Decision and Order, the Court annulled NYSED’s denial of a chronological age variance application, which, if granted, would have permitted the CSE to recommend that the student be placed in its 12:1+1 special class where the chronological age range of students with disabilities would exceed 36 months. In a December 13, 2022 Decision and Order, the Court denied NYSED’s motion to reargue the Court’s August 17, 2022 Decision and Order. The Court’s December 2022 Decision and Order also noted that “[a]through the Court acknowledges that IEPs and age-variance applications are submitted annually, it considers that [the student’s] application was effectively renewed as of the August 2022 [decision and order].” In a letter dated January 3, 2023, NYSED requested submissions from the parties on the renewed chronological age variance application for the 2022/23 school year (Exs. SD-8, SD-21 at ¶¶ 30-31). In a letter dated March 6, 2023, NYSED advised the parties that it was granting the chronological age variance application for the student for the 2022/23 school year (Ex. SD-16).

[4] Following my appointment to this case, the parties moved to extend the case compliance date in this matter twice in order to accommodate the availability of the parties’ respective witnesses and to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (R. 233-235, 340-342; Exs. IHO-II, IHO-III).

[5] Intellectual disability means significantly subaverage general intellectual functioning, existing concurrently with deficits in adaptive behavior and manifested during the developmental period, that adversely affects a student’s educational performance. 8 NYCRR § 200.1(zz)(7).

[6] See Application of a Student with a Disability, Appeal No. 23-093; Application of a Student with a Disability, Appeal No. 23-022; Application of a Student with a Disability, Appeal No. 22-168; Application of a Student with a Disability, Appeal No. 22-163; Application of a Student with a Disability, Appeal No. 22-147; Application of a Student with a Disability, Appeal No. 22-102; Application of a Student with a Disability, Appeal No. 22-010; Application of a Student with a Disability, Appeal No. 21-249; Application of a Student with a Disability, Appeal No. 21-181; Application of a Student with a Disability, Appeal No. 21-019; Application of a Student with a Disability, Appeal No. 20-135; Application of a Student with a Disability, Appeal No. 19-121; Application of a Student with a Disability, Appeal No. 19-021; Application of a Student with a Disability, Appeal No. 18-110; Application of a Student with a Disability, Appeal No. 18-075; Application of a Student with a Disability, Appeal No. 18-064; Application of a Student with a Disability, Appeal No. 17-079; Application of a Student with a Disability, Appeal No. 17-015; Application of a Student with a Disability, Appeal No. 16-040.

[7] In NYSED’s January 3, 2023 letter to the parties, it advised them that as a result of state court order issued in August 2022, its Long Island Regional Office would be visiting the special class (12:1+1) programs in the District and in the Recommended District. As the District pointed out in its Verified Answer and Motion to Dismiss, “[a]lthough [the Recommended District] was not a party to In Matter of Killoran [Index No. 900723-22 (Supreme Court, Albany County)], it had become, by virtue of SED’s directive, embroiled in matters related to that Article 78 proceeding” (Ex. SD-21 at ¶ 31).

[8] Prior to April 19, 2023, the student had received instruction and related services in accordance with the parties’ 2019 Pendency Agreement during the 2022/23 school year (Exs. SD-7, SD-20 at ¶¶ 31, 33).

[9] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[10] 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." See Endrew F., 137 S. Ct. at 1000.

[11] In his complaint, the parent’s states that he seeks compensatory education “in the event the [Recommended] School District placement is ultimately deemed to have been violative of the Individuals with Disabilities Education Act (IDEA)” (Ex. SD-1 at ¶ 4). However, as the SRO has already determined in a separate matter that the Recommended School District’s 12:1+1 special class (life skills) program offered the student a FAPE in the LRE, see Application of a Student with a Disability, Appeal No. 23-093 at 23, the parent’s request for relief could be denied on that basis alone.