New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 597549 - NYC: 246846

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

REDACTED., a Minor, by and through his/her Parent(s),

PETITIONER

against

Case # 246846

THE NEW YORK CITY

DEPARTMENT OF EDUCATION,

RESPONDENT

Dustin Johnson, Esq.

Impartial Hearing Officer

FINDINGS OF FACT AND DECISION

I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482; the federal regulations implementing IDEA, 34 C.F.R. §§ 300.1, et seq.; Article 89 of the New York State Education Law; and the New York State regulations at 8 NYCRR § Part 200, et seq.

II. Overview – Administrative Procedures

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, a school psychologist, and a district representative (Educ. Law § 4402; see 20 U.S.C. § 1414[d][1][A]-[B]; 34 CFR 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 (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 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" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An 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 business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1][3]; 34 CFR 300.512[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 45 days after the expiration period or adjusted period for the resolution process (34 CFR 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 (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of REDACTED. (“Student”). On March 28, 2023, Petitioner filed an amended Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) (See P-A).

On March 22, 2023, the undersigned IHO was appointed to preside over this matter. On April 25, 2023, a prehearing conference was held in the above matter (See Exhibit IHO-1). On May 16, 2023, an impartial hearing on the merits of the DPC was held and continued to May 22, 2023, on which day it was completed.

By DPC dated March 28, 2023, the Parent alleged, generally, that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 2021-2022 and 2022-2023 school years and was seeking compensatory tutoring services, compensatory related services, and prospective relief (see P-A).

IV. Findings of Fact

In 2021, the Student received a Neuropsychological Evaluation (P-B). The Neuropsychological Evaluator found that on the Wechsler Intelligence Scale for Children, Fifth Edition (WISC-V), a multi-faceted test of intellectual ability, the Student attained a Full-Scale IQ score of 44 (<O.1st percentile), which placed him within the extremely low range of overall intellectual functioning (P-B-5). The Student performed within the extremely low range on the Verbal Comprehension Index (VCI = 55, 0.1st percentile), and demonstrated verbal conceptualization skills that were well below age expectation (<1st percentile) (P-B-5). The student’s fund of vocabulary was also in the extremely low range (<1st percentile), he had impairment in his non-verbal reasoning abilities, and his cognitive processing speed was profoundly below age expectation (P-B-6). The Student’s overall cognitive functioning and novel problem-solving abilities were notably delayed for his age (P-B-6). The Student also demonstrated impairment in his receptive and expressive language skills as well as with deficits in his visual-perceptual skills and in his capacity to think through visual problems (P-B-7). The Student’s performances on attention and executive functioning tasks suggested a profoundly reduced attentional capacity (P-B-9). The Student was diagnosed with an Intellectual Disability and with Attention-Deficit/Hyperactivity Disorder (P-B-15-16). The Neuropsychological Evaluator made numerous recommendations to address the student’s deficits, including that the Student be placed within a small, highly supportive, full-time special education setting with a low student-to teacher ratio and frequent, individualized instructional supports with a change in placement to a special education school to address his learning needs (P-B-16-20).

In the Fall of 2021, the Parent and Student visited three schools: REDACTED, REDACTED, and REDACTED (P-M-6). On September 10, 2021, the REDACTED School accepted the student (DOE-1). The Parent did not believe that REDACTED was an appropriate school for the Student (P-M-6).

On November 16, 2021, the District’s CSE generated an IEP for the Student with a Disability Classification of Other Health Impairment (see generally P-E). The November 2021 IEP recommended a placement in a 12-month NYSED-Approved Non-Public Day School, with an 8:1+2 special education program in Math, ELA, Social Studies, and Sciences, as well as related services of Counseling, Occupational Therapy, and Speech-Language Therapy, and a full-time paraprofessional (see generally P-E). Curiously, many of the goals contained within the November 2021 IEP specified that they were to be achieved in a 12:1 setting (see P-E-9-13).

On June 21, 2022, the District’s CSE generated a new IEP for the Student with a Disability Classification of Intellectual Disability (see generally P-H). The June 2022 IEP recommended a placement in a 12-month NYSED-Approved Non-Public Day School, with an 8:1+2 special education program 5 times per week, as well as related services of Counseling, Occupational Therapy, and Speech-Language Therapy, and a full-time paraprofessional (see generally P-H).

On September 28, 2021, the REDACTED School accepted the Student to its school with a change of classification on the Student’s IEP to Other Health Impairment (P-C-1). The Parent accepted the placement at REDACTED with the change in classification (P-M-6-7). In November 2021, the Student began attending the REDACTED School (P-M-7).

The Parent did not believe REDACTED was an appropriate placement for the Student academically (P-M-7-8). The Parent had concerns for the Student’s safety after an incident and decided to switch the Student to remote learning in March 2022 and requested a new placement (P-M-8). Due to the Parent’s concerns about the Student’s safety, the Parent unilaterally decided not to send the Student back to REDACTED for the 2022-2023 school year (P-M-9).

In the Fall of 2022, the Parent was notified that REDACTED School was interested in the Student, but the Parent did not pursue that placement (P-M-10).

In November 2022, the Student was accepted at the REDACTED School and the Parent enrolled the Student there (P-M-10-11). The Parent did not feel that IDEAL was appropriate for the Student and so removed the Student from REDACTED in January 2023 (P-M-11).

It March 2023, the Parent was contacted by REDACTED, but the Parent had concerns about that school as well (P-M-11-12). In May 2023, the Parent was again contacted by REDACTED School, and the Parent is currently in the process of evaluating that school (P-M12).

A DOE Central Based Support Team (“CBST”) Administrator testified at the hearing on the merits. The CBST Administrator was assigned to assist this family at the end of the 2021-2022 school year (5.26.23 Tr. at pg. 29). Around July 2022, the CBST Administrator was asked by the Parent to “hold off on sending his packet out to the schools” so the Parent could pursue changes to the IEP (5.26.23 Tr. at pg. 30). As a result of the Parent’s request to delay the packet’s submission, it was not until approximately October 2022 that the packet was sent to around 10-12 different schools (5.26.23 Tr. at pg. 32, 34).

Despite testifying to the efforts the DOE has made to find the Student a placement, despite the Student being accepted at the REDACTED School, and despite the Parent failing to follow up with REDACTED School since the Fall of 2022 or pursue a placement at REDACTED School, the Parent summarily concludes that the Student has not been able to attend school for the 2022-2023 school year “because the DOE has not provided him with any school placement” (P-M-12).

V. Applicable Standards

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 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 least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

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]). 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 cREDACTEDging objectives" (Endrew F., 137 S. Ct. at 1000).

A board of education may be required to reimburse parents for their expenditures for private educational services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents' claim (Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 [1993]; Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 36970 [1985]; R.E., 694 F.3d at 184-85; T.P., 554 F.3d at 252). In Burlington, the Court found that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA (471 U.S. at 370-71; see Gagliardo, 489 F.3d at 111; Cerra, 427 F.3d at 192). "Reimbursement merely requires [a district] to belatedly pay expenses that it should have paid all along and would have borne in the first instance" had it offered the student a FAPE (Burlington, 471 U.S. at 370-71; see 20 U.S.C. § 1412[a][10][C][ii]; 34 CFR 300.148).

A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that their unilateral placement provides every service necessary to maximize the student's potential, but rather, must demonstrate that the placement provides education instruction specially designed to meet the unique needs of a student (M.H., 685 F.3d at 252; Gagliardo, 489 F.3d at 112; Frank G., 459 F.3d at 365). When determining whether a unilateral placement is appropriate, "[u]ltimately, the issue turns on" whether the placement is "reasonably calculated to enable the child to receive educational benefits" (Frank G., 459 F.3d at 364; see Gagliardo, 489 F.3d at 115; Berger v. Medina City Sch. Dist., 348 F.3d 513, 522 [6th Cir. 2003] ["evidence of academic progress at a private school does not itself establish that the private placement offers adequate and appropriate education under the IDEA"]). A private placement is appropriate if it provides instruction specially designed to meet the unique needs of a student (20 U.S.C. § 1401[29]; Educ. Law § 4401[1]; 34 CFR 300.39[a][1]; 8 NYCRR 200.1[ww]; Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 [2d Cir. 2014]; C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 836 [2d Cir. 2014]; Gagliardo, 489 F.3d at 114-15; Frank G., 459 F.3d at 365).

The Second Circuit has set forth the standard for determining whether parents have carried their burden of demonstrating the appropriateness of their unilateral placement.

No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits.

Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. (Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d at 364-65).

The 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).

VI. Additional Findings of Fact and Discussion

A. FAPE

Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District failed to offer the student a FAPE as required by Federal and State law for both the 2021-2022 and 2022-2023 school year.

At the May 16, 2023, hearing on the merits, the District indicated that “a FAPE may not have been provided during the entirety of these two school years…” (5.16.23 Tr. at pg. 20). Additionally, “…the District concedes that placement had -- was not found for the student with regards to the '22/'23 year in a timely manner.” (5.16.23 Tr. at pg. 21). And that “The District's position is that we will not be presenting a Prong 1 case.” (5.16.23 Tr. at p 21).

The District attempted to clarify that there were “portions” of the years in which a FAPE was provided, but that the District’s argument on that point was more in relation to the equities of the matter (5.16.23 Tr. at p 21, 22). Ultimately, the District indicated that it was the District’s position that it did provide this student with a FAPE for a “portion of the ‘21/’22 school year” and conceded that it did not provide the student a FAPE for the entire 2022-2023 school year (see 5.16.23 Tr. at pg. 22).

By arguing that the District provided the student a FAPE for a “portion” of the 2021-2022 school year, logic would dictate that the District did not provide the student with a FAPE for the remaining portion of that school year. Furthermore, the District here failed to offer any statutory authority, case law, or cogent argument for its position that the District could offer a FAPE for a portion of a school year and remain in compliance with Federal and State law. The District’s argument here has no merit.

In the March 28, 2023, DPC, the Parent outlines a litany of reasons why the November 2021 IEP was deficient and not reasonably calculate to enable the Student to make educational progress (P-A).

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (See Educ. Law § 4404[1][c]).

Here, the DOE failed to offer any testimony or evidence to explain any of the reasoning behind the recommendations contained within the November 2021 IEP. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1002 (2017).

It would be fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under the law, where those documents are rife with double, triple and even unidentified hearsay sources, that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of a fair hearing (see Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing; see Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses; see Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), where in an unemployment compensation proceedings, an administrative law judge properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement; see Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).”

While the District’s efforts and the Parent’s conduct may weigh on the equities of the requested relief, which will be further discussed below, for the purposes of determining whether or not the District provided the Student with a FAPE for the 2021-2022 and 2022-2023 school years, I find that it did not. I find that based on the record before me, the District failed to sustain its burden and therefore denied this Student a FAPE for the 2021-2022 school year. Additionally, based on the District’s concessions, and as supported by the record, I find the District failed to provide this Student a FAPE for the 2022-2023 school year.

B. Compensatory Education

The crux of the dispute here, as evidenced by the DPC filed by the Petitioner and the District’s arguments at hearing, is over the appropriateness of the compensatory services being requested by the Petitioner. Petitioner is seeking, among other things, an award of 1,200 hours of compensatory tutoring services to be provided by a provider of the Parent’s choosing at an enhanced rate, as well as related services and prospective relief in the form of a home-based program (see P-A). The District is arguing for a denial or reduction in such an award on equitable grounds based on the actions of the Parent.

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). 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]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in 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"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

Here, as discussed above, the District conceded, or at least failed to meet its burden to prove, that it offered the student a FAPE for the 2021-2022 and 2022-2023 school years. To be sure, the District was required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE (Educ. Law § 4404[1][c]; see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4 [S.D.N.Y. Mar. 30, 2017] [noting the SRO's finding that the district had the burden of proof on the issue of compensatory education]; see also E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524). Where, as here, New York State law has placed the burden of production and persuasion at an impartial hearing on the District, it is not an IHO's responsibility to craft the District's position regarding the appropriate compensatory education remedy.

However, an outright default judgment awarding compensatory education—or as in this case, any and all of the relief requested without question—is a disfavored outcome even where the District's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] [rejecting "lump sum" grant of tutoring as a compensatory remedy for a multi-year denial of FAPE]). Indeed, an award ordered so blindly could ultimately do more harm than good for a student (see M.M., 2017 WL 1194685, at *8 ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]). Moreover, if the sum and total of the compensatory education relief requested by the parent was ordered, including the monetization thereof, it would amount to a punitive award (see C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010] [noting that "[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education."]).

Throughout the DPC and hearing on the merits, the Parent disingenuously alleges that the DOE bears all the responsibility for the Student not being placed in an appropriate non-public school. The record does not support the Parent’s contention.

As discussed above and supported by the District’s testimony, the DOE has worked with this Parent and exerted considerable effort in attempting to obtain a placement for this Student. The record reflects that the Parent has repeatedly declined potential offers of admission, or outright declined prospective schools based on the Parent’s arbitrary determination of such school’s appropriateness, distance, a perceived threat to her Student’s safety, or has simply neglected to pursue placement options to the detriment of her own Student’s education. While the sins of the mother should not necessarily be visited on her son, equitable considerations in this regard weigh against a full award to the Petitioner.

The source of the Parent's request for 1,200 hours of compensatory education tutoring services is a February 3, 2023, letter and direct testimony by affidavit, which summarized a February 2, 2023, assessment, that had been conducted by the Director of REDACTED (P-K; PL).

The Director stated that she personally met with the Student and conducted an assessment of his educational functioning (P-L-3). The Director testified that she assesses each student, examines IEPs, and reviews evaluations that had been conducted in order to gauge the student’s overall profile (P-L-2). The Director administered the Wide Range Achievement Test (WRAT) to the student to assess his spelling, decoding, and math skills, asked the Student to complete a writing sample, and administered the Qualitative Reading Inventory to assess his reading comprehension skills (P-L-3). Based on this assessment of the Student, the Director determined that the student "tested at a low third grade level for decoding, a low second grade level for spelling, and an upper second grade level for mathematics. He also tested at a low second grade level for writing and a third grade level for reading comprehension, all well below the expected levels for his grade.” (P-L-3).

Based on the Director’s “evaluation of [the Student], my review of his documents, and my extensive experience working with students with similar profiles to him,” the Director recommended the Student receive 1,200 hours of one-on-one multi-sensory tutoring using the Orton-Gillingham methodology to develop his decoding and spelling skills, as well as similar research-based, multi-sensory tools to build his reading comprehension, writing, and mathematics skills (P-L-4). The Director had initially recommended the Student receive a total of 900 hours of tutoring based on the understanding that he would be in an appropriate school setting (P-L-4). The Director also recommended that the 1,200 hours should not have an expiration date for the purpose of providing flexibility to the student's family and that services could be provided at the REDACTED learning center, the student's home, virtually, or at another mutually agreed upon location (P-L-5). 1 The Director of REDACTED testified on cross-examination that she took approximately two-three hours reviewing the Student’s documents, and that the Student’s virtual evaluation took approximately one hour in total (5.22.23 Tr. at pg. 13). The Director testified that her conclusions were based on, inter alia, other students with similar profiles as this Student (5.22.23 Tr. at pg. 16) but that she also came up with a “specific and unique recommendation” for this Student (5.22.23 Tr. at pg. 20). The Director testified that her recommendation was for the services to be “provided an average of approximately 10 hours per week over roughly a three-year school time period,” in addition to the student attending a traditional full school day (5.22.23 Tr. at pg. 33-34). The Director further testified that the family was not obligated in any way to use REDACTED for the recommended tutoring (5.22.23 Tr. at pg. 33).

Regarding the student’s potential with the recommended hours, the Director testified that in her professional opinion the Student has the potential to reach at least a six to seventh grade level academically and that such a conclusion is the minimum the Director would expect the Student to achieve with the 1,200 hours she is recommending (5.22.23 Tr. at pg. 22-23). Finally, the Director testified that her modified increased recommendation from 900 to 1,200 hours was based on her learning the student had not been in a school setting (P-L-4) and that the additional recommendations are based on the Student having missed instruction (5.22.23 Tr. at pg. 37).

1 It bears noting that the Director’s testimony in this matter bears a striking resemblance to the testimony provided in another matter for another student, weighing against the credibility of the Director’s testimony and the individualized nature of the Director’s recommendations for this Student (see Application of a Student with a Disability, 21-218).

Generally, compensatory services are not designed for the purpose of maximizing a student's potential or to guarantee that the student achieves a particular grade-level in the student's areas of need (see Application of a Student with a Disability, Appeal No. 16-033; cf. Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Rather, an award of compensatory education should place the student in the position that he would have been in had the district acted properly (see Parents of Student W., 31 F.3d at 1497 [holding that "[a]ppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA" and finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]).

Based on the above, I find that the totality of the evidence in the hearing record, including the District's concessions and failure to sustain their burden of proof, supports a finding that the Student here is entitled to compensatory education to remedy the District's denial of a FAPE during the school years at issue.

However, I do not accept the REDACTED Director's opinion on the number of hours the Student should receive for compensatory education, nor her opinion that there should be no timeframe within which the compensatory education relief should be used by the Student, nor her or Petitioner’s counsel’s reasoning on the number of school weeks a year. 2 Additionally, I find that equitable factors weigh heavily against a full award of relief for the Petitioner based on the Parent’s unilateral decisions to remove the Student from multiple schools, and her failure to pursue placement at other appropriate school options, as discussed above.

I find that since the District failed to provide the Student with a FAPE for two school years, any award of compensatory education shall be limited to two school years’ worth of compensatory education. I further find that it would be appropriate for the awarded compensatory education to be used within a two-year period from the date of this decision, which will give the Student sufficient flexibility.

Finally, while the REDACTED Director testified that her organization could provide the student with the recommended hours of instruction, there is nothing in the Director's testimony or the hearing record indicating that the District itself cannot provide the tutoring instruction, especially considering the instruction should support the Student's in-school academics, which is a core function of the District (see Application of a Student with a Disability, Appeal No. 21-218).

VII. Conclusion

Based on the record before me, I find that the District has denied this Student a Free Appropriate Public Education for the 2021-2022 and 2022-2023 school years.

2 The amount of schooling generally included in a 12-month school year program is approximately 42 weeks; based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six-week program (see Educ. Law § 3604[7]; 8 NYCRR 200.1[eee]; see also Application of a Student with a Disability, 22-145). Thus, for purposes of calculating any award, I will rely on a 42-week school year.

I have considered the parties' arguments and find that the hearing record supports an order that the District provide this Student with 840 hours of 1:1 instruction by a certified special education teacher as compensatory education services, to be utilized within two years. In reaching this conclusion, I have based my calculation partially on the REDACTED Director’s testimony that the tutoring be provided 10 hours per week over a school year period, which will be counted at 42 weeks (42 weeks x 10 hours a week x 2 years = 840 hours total).

In light of the District’s concession regarding FAPE for the 2022-2023 school year, I further find that the hearing record supports an award of compensatory related services for the 2022-2023 school year for Speech, OT, and Counseling, but not at the calculated rate proposed by the Petitioner. The District shall be ordered to provide the Student compensatory related services to be utilized within two years for the following: Individual Counseling Services 2 times per week for 30 minutes per session for 42 weeks a year for two years; and Group Counseling Services 1 time per week for 30 minutes per session for 42 weeks a year for two years; and Individual Occupational Therapy Services 2 times per week for 30 minutes per session for 42 weeks a year for two years; and Individual Speech-Language Therapy Services 3 times per week for 30 minutes per session for 42 weeks a year for two years; and Group Speech-Language Therapy Services 1 time per week for 30 minutes per session for 42 weeks a year for two years (see P-H-32).

Finally, based on the record before me, based on the lack of ripeness of the issue, based on the Petitioner’s having contributed to the Student not being placed in an appropriate school program, and based on the Parent’s testimony supporting the very real likelihood that the Parent may reject any placement regardless of whether or not a reasonable person would find it to be appropriate, I am denying the Petitioner’s request for prospective relief requiring the DOE to fund a home-based program. No award of prospective relief is contemplated by this decision.

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

VIII. Orders

IT IS HEREBY ORDERED that the District shall provide the Student with 840 hours of 1:1 instruction by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree. If the Petitioner rejects a reasonable offer of 1:1 instruction by the District, then this award shall be vacated; and IT IS FURTHER ORDERED that the District shall provide the Student, as compensatory related services to be utilized within two years, the following: Individual Counseling Services 2 times per week for 30 minutes per session for 42 weeks a year for two years; Group Counseling Services 1 time per week for 30 minutes per session for 42 weeks a year for two years; Individual Occupational Therapy Services 2 times per week for 30 minutes per session for 42 weeks a year for two years; Individual Speech-Language Therapy Services 3 times per week for 30 minutes per session for 42 weeks a year for two years; and Group Speech-Language Therapy Services 1 times per week for 30 minutes per session for 42 weeks a year for two years. The compensatory related services provider shall be of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree. If the Petitioner rejects a reasonable offer of related services by the District, then this award shall be vacated; and IT IS FURTHER ORDERED that the 1:1 instruction and related services awarded above shall expire two years from the date of this decision if the Student has not used them by such date.

DATED: SO ORDERED

6/12/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

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 proceedings 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.

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

I, Dustin Johnson, Impartial Hearing Officer in this matter, do hereby certify that the below Index of Exhibits included within this Findings of Fact and Decision itemizes the entire record before me. I further certify that the materials included in the record were represented to me to be either the original or a true copy of the original materials that were provided to me in this matter.

DATED: CERTIFIED BY

6/12/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

CASE # 246846 EXHIBITS

Parent Date Title # of Pages

Exhibit

P-A. Amended DPC 3/28/23 8 pages

P-B. 4/28-5/12/21 Neuropsychological Evaluation 27 pages

P-C. Acceptance Letter 9/28/21 1 page

P-D. School Website 5/8/23 3 pages

P-E. IEP 11/16/21 26 pages

P-F. Progress Report 4/11/22 9 pages

P-G. Social History 6/9/22 2 pages

P–H 6/21/22 IEP 41

P–I 10/18-19/22 Emails 2

P-J 1/18-3/30/23 Emails 6

P-K 2/3/23 Letter 1

P-L 5/4/23 Affidavit of REDACTED 5

P-M 2023 Affidavit of REDACTED 13

P-N 6/29/22-9/28/22 Emails 10

DOE Date Title # of Pages

Exhibit

1. Letter of Acceptance 9/10/21 2 pages DOE

2. SESIS Log Various 1 page DOE

3. Report Card Undated 3 pages DOE

4. Interim Report Undated 3 pages DOE

Exhibit

IHO-I 4/25/2023 Prehearing Conference Summary and Order 9

IHO-II 2022-2023 NYSED 2022-23 School Age Interim Tuition Rates 12

IHO-III 2022-2023 NYSED SEIT Tuition Rates 6

IHO-IV 3/23/23 NYSED Tuition Rate Setting Methodology 11