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
NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/07/2023
For the Student:
• [REDACTED], Esq., Attorney for Parent
• [REDACTED] (Parent)
• [REDACTED], Private School CSE Liaison
For the Department of Education:
• [REDACTED], Esq., Attorney for Respondent/District
NAMES AND TITLES OF PERSONS WHO APPEARED ON 07/17/2023
For the Student:
• [REDACTED], Esq., Attorney for Parent
• [REDACTED] (Parent)
• [REDACTED], Speech Pathologist
• Dr. [REDACTED], Psychologist#2
For the Department of Education:
• [REDACTED], Esq., Attorney for Respondent/District
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/01/2023
For the Student:
• [REDACTED], Esq., Attorney for Parent
• [REDACTED] (Parent)
For the Department of Education:
• [REDACTED], Esq., Attorney for Respondent/District
INTRODUCTION, PROCEDURAL HISTORY & BACKGROUND
The parent filed a Due Process Complaint (DPC) against the district on 3/28/2023. [1] The DPC alleges violations of the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act of 1973,[2] the Americans with Disabilities Act, and Article 89 of the New York State Education Law, resulting in a denial of a free appropriate public education (FAPE) for the school years, including but not limited to, 2021/2022 and 2022/2023 by failing to provide a procedurally valid and substantively appropriate Individualized Education Plan (IEP) and educational placement recommendation. 3 It is further alleged that starting with the 03/02/2018 IEP and continuing through the development of the 06/22/2022 IEP, the district failed to (a) evaluate the student and identify all areas of suspected disability; (b) conduct and consider sufficient evaluations, (c) consistently provide IEP progress reports, (d) utilize appropriate scientifically based teaching and reading instruction as recommended by two psychologists and a speech pathologist, and (e) collaborate with the student’s parent. The DPC seeks direct tuition funding for the 2022/2023 school year and compensatory education consisting of 300 hours of multisensory remedial reading instruction services. [4]
The parent disagreed with the recommendations in the 06/22/2022 IEP and served a 10-Day Notice (TDN) on 08/22/2022, 5 notifying the district that unless her concerns were addressed, she would be unilaterally placing the student in a private school and seeking direct tuition funding. The district did not serve a response to the TDN. The district served a response to the DPC on 04/23/2023. [6]
At the parties’ request, the pre-hearing conference initially scheduled for 05/03/2023 was adjourned to 06/12/2023, together with an extension of the compliance date to 07/11/2023, was granted to continue settlement discussions. The parties appeared for a pre-hearing conference on 06/12/2023 and agreed to conduct the due process hearing (DPH) on 07/07/2023 and 07/17/2023.
The DPH commenced on 07/07/2023. The district requested that the parties present their direct cases out of order.[7] The parent agreed. This request necessitated the scheduling of a third hearing day for 08/11/2023.[8] The district reserved its right to an opening statement.[9] The parent’s attorney presented an opening statement[10] and called as witnesses the parent and the private school’s Committee on Special Education (CSE) liaison.[11] The district did not cross-examine the liaison12 and reserved the right to crossexamine the parent.[13] The district was directed to notify the parent’s attorney if this right would be exercised at the next hearing date. [14]
12 Tr.49 and 121
The tribunal sustained the district’s objection to Exhibit T,[15] and the parent’s exhibits were admitted into evidence except for Exhibits III and JJJ.[16] A joint application for an extension of the compliance date to 08/10/2023 was granted. [17]
On 07/17/2023, all parties appeared for the DPH, and exhibits ZZ [as amended], [18] III,[19] and JJJ[20] were admitted into evidence. The parent called as witnesses Psychologist#221 and the speech pathologist.[22] The district did not cross-examine either witness. [23]
Both parties rested.[24] The district rested without presenting an opening statement, offering documentary evidence, calling witnesses, or exercising the right to cross-examine the parent, and also waived a closing argument.[25] The parent requested to present a closing argument at the next scheduled hearing date. This request was granted, and the parties agreed to advance the next hearing date from 08/11/2023 to 08/04/2023. 26 However, on 08/03/2023, the parent’s attorney requested an adjournment of the 08/04/2023 hearing date and an extension of the compliance date because the attorney
21 Tr.127-141
and the parent had COVID-19. The hearing was adjourned to 08/11/2023, and the compliance date was extended to 09/09/2023.
JURISDICTION
The undersigned is a certified New York State Special Education Impartial Hearing Officer (IHO) employed by the New York City Office of Administrative Trials and Hearings. I was appointed to adjudicate this hearing on 03/29/2023 pursuant to the IDEA, Article 89 of the Education Law, and the Federal and State implementing regulations. The undersigned meets all the qualifications and requirements outlined in the Federal and State statutes that grant me the authority to adjudicate this hearing. [27]
ISSUES & SUMMARY
The parent raises four issues for determination by the IHO:
1) Did the district fail to offer the student a FAPE for the 2022-2023 school year?
2) Is the private school the appropriate educational program for the student?
3) Do the equitable considerations favor the parents for an award of tuition reimbursement?
4) Is the student entitled to 300 hours of compensatory education based upon the failure to provide a FAPE through an appropriate IEP and educational placement from 2018/2019 through the 2021/2022 school years?
All four questions must be answered in the affirmative. The district has failed to meet its burden of proof on all issues and failed to raise a defense of the statute of limitations.
The district failed to meet its burden and establish that (a) the 06/22/2022 IEP program and school placement are appropriate, (b) the 06/22/2022 IEP could be implemented as written in the recommended school placement, and (c) the student is not entitled to 300 hours of compensatory education to make up for past deficient educational programs and placements from 2018 through 2022. The district also failed to rebut the parents’ prima facie showing in her direct case that the private school is the appropriate placement and the equities did not favor the parent warranting a denial of tuition reimbursement in whole or in part.
FINDINGS OF FACT
I) Prong I of the Burlington/Carter framework – The denial of FAPE.
(a) The Student’s Profile and the District’s failure to evaluate the student in all areas of disability.
The student has been receiving special education services since entering Pre-K3 in 2016.[28] At the beginning of the 2022/2023 school year, the student was nine years of age and classified as a student with a Learning Disability.29 The student was diagnosed with (a) Attention Deficit/Hyperactivity Disorder (Predominantly Hyperactive-Impulsive Presentation) (ADHD), (b) Specific Learning Disorder with severe impairment in reading (word reading accuracy, reading fluency, and reading comprehension,) (Orthographic and Phonemic Dyslexia), (c) Specific Learning Disorder - with severe impairment in written expression (clarity of written expression, spelling accuracy, and punctuation accuracy), (d) Adjustment Disorder with mixed anxiety and depressed mood, and (e) inattentiveness, impulsivity, and limited stamina. The student also struggles with executive functioning, task initiation, organization, self-monitoring, social/emotional skills, graphomotor skills, spelling, and writing. These language-based deficits carry over into math word problems, math facts, and math automaticity.[30]
Psychologist#1 determined, and Psychologist#2 agreed, that the student demonstrates variably developed cognitive abilities, and presented weaknesses in phonological processing, speeded naming, fine motor coordination, visual motor skills, attention, and executive function.[31] Psychologist#2 explained that the subset scores were examined in isolation to understand the student’s cognitive functions, which confirmed the diagnosis of dyslexia.[32] The student demonstrated weaknesses in the subsets of, including but not limited to, speed naming and phonological processing, which are the two indicators of dyslexia.[33]
Psychologist#2 further explained that speeded naming is the ability to rapidly identify visual material, which was tested by having the student quickly read letters and numbers to determine how quickly he could retrieve the labels and identify phonetic information. This test determined the student’s ability to read fluently by assessing his ability to see and immediately identify sight words. Due to the student’s weakness in speed naming, his reading is “slower and choppier,” which impacts his reading fluency, decoding, and encoding.[34] The weakness in his visual motor skills impacts his ability to coordinate visually perceived information and fine motor coordination, i.e., his ability to accurately write visual information, such as copying information from the “board” in the classroom. [35]
The speech pathologist’s findings confirmed the two psychologists’ findings concerning word identification. Although the student could identify approximately 50% of letters and sounds in isolation, he missed the vowel teams, and three letter sounds with silent letters.[36] Next, of the words presented to the student, he could only (a) identify and read in isolation approximately 30% of the words and (b) spell approximately 14% of the words in isolation and within sentences. [37]
Despite all these findings and the student’s well-documented and persistent deficits with gross motor skills, executive function, task initiation, organization, self-regulation, and graphomotor, visual, and fine motor skills, the district (a) relied on the last occupational therapy (OT) evaluation on 01/09/2020;[38] and (b) never conducted an updated speech-language evaluation before developing the 06/22/2022 IEP. The district also never provided the student with consistent Wilson Reading System (WRS) multisensory reading instruction.
Further, the district not only disregarded the student’s history and the testing results when creating the 06/10/2021 and 06/22/2022 IEPs, but it also failed to conduct sufficient evaluations before the student’s initial CSE evaluation in 2018 [kindergarten], annual reviews in 2019 and 2020, a triennial in 2021, and an annual review in 2022. [39]
Overall, the district failed to review existing data and conduct updated classroom observations, related service evaluations, and social history observations before developing the student’s IEPs from 2019 through 2022.[40] Therefore, the district has demonstrated a longstanding systematic failure to evaluate the student in all areas of suspected disabilities. In addition, the district for the school years of 2018/2019 through 2022/2023 made pre-determined recommendations by continually placing the student in an Integrated Co-Teaching Class (ICT) despite his failure to make academic progress, the independent evaluations and the parent’s multiple requests for a small structure class.
The district failed to create a substantively and procedurally appropriate IEP for the student.
(b) The Parent’s cooperation with the CSE and the District’s failure to afford the Parent a meaningful opportunity to participate in the student’s educational planning.
Most recently, the parent disagreed with the IEP initially created in 2021 and requested that the CSE team reconvene to consider and incorporate the recommendations from Psychologist#1’s independent evaluation conducted in April 2021, 41 which was funded by the district.[42] The CSE reconvened in June 2021 but failed to consider the independent recommendations, change the student’s class placement, or provide the student with multisensory reading instruction and intervention services. [43]
In March 2022, the parent again had the student evaluated by Psychologist#2, who made the same findings and recommendations as Psychologist#1.[44] The parent forwarded the 03/2022 evaluation report to the CSE in preparation for the 06/22/2022 IEP meeting. However, the district did not discuss or consider the report and recommendations and once again repeated their prior IEP program and the ICT class placement. [45]
The CSE team convened for the school years from 2018/2019 through 2021/2022 was not validly constituted as no district representative was present with knowledge of the continuum of services available to the student. 46 This is evident because the CSE continually placed the student in an ICT class and did not provide WRS multisensory remedial reading intervention despite the student’s persistent lack of progress and difficulties in reading and math. The CSE ignored the parent’s persistent concerns about the appropriateness of an ICT class and requested consideration of the recommendations of two psychologists and a speech pathologist.[47] As of the June 2022 CSE meeting, the district still had not conducted the appropriate evaluations in all areas of disability.[48] (c) The Parent’s Evidence is credible and uncontroverted.
Although the parent does not carry the burden of proof on Prong I, her evidence is uncontroverted that the student was denied a FAPE for the 2022/2023 school year because the CSE did not consider the recommendations of two psychologists to place him in a small, structured, specialized school placement with multisensory remedial reading intervention services.[49] The ICT class size and staffing ratio could not provide sufficient individualized instruction and professional support, targeted reading instruction throughout the day, or multi-sensory reading instruction, all of which the student requires to make progress and access the curriculum.50
The parent’s allegations that the 06/22/2022 IEP contains goals unsupported by management needs are uncontroverted by the district. For example, this IEP recommends an assistive technology goal but fails to recommend or provide assistive technology to implement this goal.[51] Also unconverted are the parent’s allegations that this IEP does not recommend social skills instruction or sufficient behavior management support, such as positive behavioral interventions and supports, or other strategies to address his social and emotional deficits and behaviors that impede his learning. [52]
The district also carries the burden concerning the appropriateness of its recommendations and the need for compensatory education. However, without any IEP in evidence or witness testimony from the members of the CSE, the parent’s allegations, together with the testimonial and documentary evidence, are unconverted. Thus, the district failed to meet their burden that the IEPs provided a FAPE to the student and that the student is not entitled to 300 hours of compensatory education to bring him to a level he would have otherwise achieved if appropriate special education placements and programs were provided.
To hold otherwise would be speculation by the tribunal as to the contents and appropriateness of any IEP. The 06/10/2021 and 06/22/2022 IEPs were identical and created after extensive psychological and speech-language assessments that specifically identified the student’s unique needs. This pattern establishes that the district’s recommendations were predetermined, thus failing to develop an appropriate IEP tailored to meet his needs and denying the parent meaningful participation in the process.
Accordingly, the IEPs dated 06/10/2021 and 06/22/2022 were not the appropriate program and placement and constitute a denial of FAPE for the 2021/2022 and 2022/2023 school years. Based on the multi-year systematic failure to evaluate and address the student’s needs, the district also denied the student a FAPE for the 2018/2019, 2019/2020, and 2020/2021 school years. 53
II) Prong II of the Burlington/Carter Framework - The Private School program is tailored to the student’s unique needs.
(a) Background: The gaps in the student’s reading and comprehension skills.
Psychologist#2 testified that she administered the Wechsler Individual Achievement Test- Fourth Edition ("WIAT-4") and relevant portions of the Comprehensive Test of Phonological Processing - 2nd Edition ("CTOPP-2") based on the student’s history and the parent’s concerns. 54 The WIAT-4 assessed the student’s academic achievement in reading, math, and writing, while the CTOPP-2 assessed his language-based skills underlying the reading process.[55] Psychologist#2 observed during testing that the student had issues with attention, stamina, impulsivity, frustration, and executive functions such as task initiation, organization, and self-monitoring.[56]
Based on Psychologist#2’s diagnoses,[57] assessments, and review of the student’s history, she recommended placing the student in a small, structured, specialized school setting with a low student-to-teacher ratio and receiving multisensory and empirically validated phonics instruction.[58] The phonics instruction is necessary because the student’s phonological processing and decoding skills to sound out words were a slow and “laborious” effort for him. 59 This testimony is corroborated by the speech pathologist, who determined that all the student’s executive functions must be devoted to processing letters and sounds rather than comprehending the material when he is reading, performing a task, writing, or attempting to retrieve math facts.[60]
The speech pathologist recently worked with and evaluated the student in June 2023.[61] The speech pathologist testified that dyslexia is a reading disorder in the brain’s language area, resulting in a diminished ability to process sounds and inhibits comprehension.[62] Dyslexia will cause the student to (a) have difficulty remaining focused and (b) misread or guess words rather than attempting to sound out unfamiliar words which will cause him to fall behind in unfamiliar content areas.[63] The speech pathologist also found that the student has difficulties in decoding and spelling. 64 He specifically struggles with decoding vowel sounds in multi-syllable words and separating the sounds. [65] Although the student will enter the 5th grade for the 2023/2024 school year, the speech pathologist estimates that he can only read 3rd-grade level text fluently with some errors.[66] In 2022, Psychologist#2 made a similar finding that based on this inability to read text fluently, the student is not prepared for education starting in 4th grade because the student needs to learn content through reading, but will be unable to do so. [67] (b) The class size and ratio at the Private School is the student’s appropriate educational placement to address the student’s unique needs.
The school-wide program and the student’s individual educational program at the private school align with the recommendations of the two psychologists and the speech pathologist. The liaison testified that the private school is a specialized school for students with language-based disabilities who have average to above-average cognitive abilities.68
The school liaison also testified that when the student arrived at the private school in the Fall of 2022, he was reading at reading Level K of the Fountas & Pinnell assessment. By the end of the year, he was reading at Level L. He consistently demonstrated growth in recalling key points in a text, answering literal questions, and reading and spelling one-syllable and two-syllable words with glued sounds, prefixes, suffixes, and three-letter blends. 69 The student improved his ability to organize a written essay. [70]
During the 2022-2023 school year, each subject’s class ratio was specifically designed based on the student’s unique needs in each content area. The student attended (a) two periods per day in reading – one period of decoding utilizing the Wilson Level-2 program with a ratio of 7:1 and one period of comprehension with multiple support modules and a ratio of 4:2; 71 (b) three periods of writing per week with a 12:1:2 ratio; (c) math class with a 14:1:2 ratio; and (d) social studies and science each with a ratio of 12:1:2.[72] The decoding class also focuses on strategies for encoding, breaking down multisyllabic words, and phonics patterns. 73 In addition to small, structured classes, the student receives speech-language therapy twice weekly in a small group with a certified speech pathologist.74 The student’s class size, ratio, and instruction align with the two psychologists' and speech pathologist’s recommendations.
The private school program and placement are uniquely tailored to meet the student’s unique educational needs.
III) Prong III – The Equities The parent’s testimonial and documentary evidence establish long-standing cooperation with the CSE. The parent was in constant written contact with the school and CSE from 2018 through the present, expressing her concerns regarding the student. 75 The parent attended all IEP meetings and provided evaluative reports supporting all her requests for a change in program and placement. Most of the parent’s concerns were ignored, and the student received minimal to no help in reading for 2.5 years. 76
The district’s conduct pre and post-filing of the DPC demonstrates a total lack of cooperation with the parent to address her concerns. The district failed to respond to the TDN. Further, their response to the due process complaint was patently insufficient. The response defends a class recommendation of a 12:1+1 Special Class in a District [75] Specialized School.77 However, it is undisputed that the recommendation was an ICT class. Next, the response states that related service progress reports and evaluations were relied upon to support their recommendation.[78] However, the district conducted neither an updated speech evaluation nor updated occupational therapy before the 06/22/2022 CSE meeting. The district did not offer these documents as evidence if such evaluations were even conducted.[79] Finally, despite checking the box in the DPC response that a Prior Written Notice (PWN) was served, the district offered no evidence that it was served. Therefore, based on these errors, inconsistencies, and lack of evidence, I find that the response to the DPC was a boilerplate response and lacked any credibility regarding balancing the equities.
I find that the parent was proactive concerning the student’s placement for the 2022/2023 school year. The parent investigated potential private schools in 02/2022 as a precaution if the district repeated the same recommendation for the fifth year in a row despite the second evaluation by Psychologist#2 in 03/2022. This is inferred from the date of issuance on the enrollment contract, i.e., 02/02/2022. 80 The parent had to accept the private school contract no later than 02/16/2022 to hold a placement for the 2022/2023 school year,[81] and it could be canceled before 09/01/2022. The contract states that “if the student is placed by the parent(s) in a public school class recommended by . . . the Department of Education in accordance with an Individualized Education Program . . . The advance deposit is non-refundable and will not be returned.” 82 If the parent failed to comply with this 09/01/2022 deadline, she was contractually liable for the entire academic year without a deduction for withdrawal from the school.83 However, the parent also purchased a ”Tuition Refund Plan” to insure against this financial loss and satisfy her financial obligation to the private school if the student was “separated” from the school. [84]
Therefore, the parent knowingly assumed the absolute financial risk and obligation to pay the private school tuition under the terms of the contract. I find that by purchasing the insurance, the parent demonstrated that, at all times, she was willing to accept an appropriate public school placement if offered by the district. However, as the district did not respond to the TDN notice or demonstrate that it was prejudiced in its defense by the 09/01/2022 deadline and the contract’s terms, the parent is entitled to full tuition reimbursement of $67,500.00.
The parent has provided proof of partial payment of $14,600.00 and the outstanding balance of $52,900.00 due to the school. Therefore, the parent does not need to submit a copy of the contract or proof of payment to the implementation unit for issuance of payment.
IV) The need for 300 hours of compensatory education. To remedy the student’s gaps in reading skills and lack of progress due to multiple deficient IEPs and the lack of remedial multisensory reading intervention services, the speech pathologist has recommended 300 hours of compensatory education utilizing the WRS at her customary rate of $220 per hour.[85] WRS is a systematic and sequential multisensory reading program that teaches foundational or basic concepts and then builds on those concepts to develop higher-level reading skills.[86] The hours are calculated based on her estimate that the student reads two years below his current grade level as of June 2023.[87] There are 180 days in the school year, and at one hour per day or 3-5 hours per week, the student should make progress without being overwhelmed.[88] I find this calculation realistic and reasonable since the student demonstrates fatigue and impaired stamina when faced with unfamiliar tasks. [89]
Therefore, compensatory multisensory reading instruction is warranted; otherwise, the student’s ability to read, learn, comprehend, and access the general education curriculum will continue to be severely impeded. The compensatory instruction will aid the student in “learning to read” so that he can “read to learn” the general education curriculum.
CONCLUSIONS OF LAW & ANALYSIS
Burdens of Proof, Persuasion, and Production and Default by the District a) Burlington/Carter Analysis The mechanics of decisions in tuition reimbursement and direct funding cases have evolved from the two United States Supreme Court cases of Sch. Comm. of Burlington, Mass.
v. Dep’t of Educ. of Mass., 471 U.S. 359 (T1985) and Florence Cnty. Sch. Dist. Four v. Carter, 510 U.S. 7 (1993), which have morphed into the “three-prong” analytical framework that has come to be known as the “Burlington/Carter” test or analysis. When considering an award for tuition reimbursement and funding in favor of the parents, a tribunal must use this framework to determine that (1) the school district’s proposed placement was inadequate or inappropriate, (2) the parent’s alternative private placement is appropriate to meet the student’s needs, and
(3) the equitable considerations support the claim.
The school district carries the burden of proof, including the burdens of persuasion and production, in due process hearings commenced under the IDEA, except in cases where the parent is seeking tuition reimbursement and direct funding for a unilateral placement. In the latter scenario, the parent or guardian only has the burdens of persuasion and production on the appropriateness of such placement (Prong II).[90] The party who carries the burden must establish an entitlement to a judgment in their favor by a preponderance of the evidence,[91] to wit: evidence of greater weight or more convincing than the evidence offered in opposition to it. [92]
The district meets its burden by offering a “cogent and responsive explanation for their decision that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.”[93] Moreover, it is the district’s burden “to demonstrate which evaluative materials were reviewed during each CSE meeting in reaching the terms of the IEP[s].”[94] Otherwise, a tribunal is …left to speculate many months . . . many years, later as to how the CSE reached the terms of the child's IEP (i.e., which, if any, evaluative materials the CSE actually considered). The resulting implication of this procedural violation is that it provides the reviewing authority with almost unfettered discretion, as it combs through the evaluative materials generated at the time the IEP was formulated, to match terms of the IEP to any assertion contained in any existing document, irrespective of whether it was actually viewed and considered by the CSE or even in possession of the CSE at the time of the meeting. [95]
This is impermissible because “it permits the reviewing body to offer post hoc rationalizations for how the CSE reached its conclusions and refer to documents that may or may not have been in possession of the CSE at the time of the meeting.” 96
Here, the district did not offer documentary evidence or witness testimony on its direct case or in opposition/rebuttal to the parent’s direct case that the private school is the appropriate placement and the student is entitled to 300 hours of compensatory education.
In this case, absent the IEPs in evidence and witness testimony to provide a cogent and responsive explanation for the CSE’s decisions,”[97] a finding of a FAPE from 2018 through 2022 would be an impermissible post-hoc rationalization by this tribunal. [98] b) Default by the District.
“The IDEA does not specify default as the penalty for the failure to serve an appropriate response to the Due Process Complaint Notice because the response is a mechanism to guarantee meaningful parental participation in the student placement process.”[99] An order granted on default would subvert the administrative process and place the student without regard to the evidence of their actual needs.[100] The failure to serve a response to the DPC [or a PWN] is a procedural violation and is only actionable if it affects the student’s substantive rights.[101] This is because the intent of the IDEA is to ensure an “appropriate education,” and not one that provides everything desired by the parent.[102] Therefore, an IHO or Court must fully examine the record even when the district defaults.
Here, this tribunal finds that the full written and testimonial record is devoid of evidence upon which the district could rely to meet its burden or impeach the parent’s direct case.
The Three Prongs of Burlington/Carter
I) Prong I – Free and Appropriate Public Education The purpose of the IDEA[103] is to provide a FAPE tailored to the unique needs of the handicapped student through an IEP.[104] A tailored FAPE consists of specifically designed instruction that must meet the child’s unique needs in all educational aspects during classroom instruction105 and prepare them for further education, employment, and independent living.[106] This includes personalized instruction with sufficient related and other supportive services to assist the student in benefiting from special education to derive an educational benefit, achieve passing marks, and advance grade to grade.[107] This personalized instruction must also “be appropriately ambitious in light of [the student’s] circumstances”[108] to (a) “enable the student to be involved in and make progress in the general education curriculum”[109] and (b) open the door of public education to a disabled child in a meaningful way such that it is likely to produce progress, “not regression,”[110] or only “trivial advancement.” [111]
105 Id. at p.188
To satisfy its obligations under the IDEA, the local school districts must implement extensive procedural requirements to protect the rights of the parents and student, including the right to be notified of a change in (a) the student’s educational placement or (b) the provision of a FAPE.[112] Therefore, the districts have the burden to prove by a preponderance of the evidence that an appropriately substantive IEP was developed through adequate compliance with the “extensive procedural requirements,”[113] which includes providing the parents with “a large measure of participation at every stage of the administrative process.” [114]
When conducting an IEP evaluation, the school district must also (i) ensure the evaluation is comprehensive; (ii) consider a student’s initial or most recent evaluations; (iii) use a variety of assessment tools and strategies to gather relevant functional, developmental, and academic information; and (iv) assess the child in all areas of suspected disability.[115] An evaluation of a student must be sufficiently comprehensive to identify all the student’s special education and related service needs, whether or not commonly linked to the disability category in which the student has been classified. [116]
It is noted that “[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not.”[117] The procedural violations, when taken together, must have (a) impeded the student's right to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision-making process, or (c) caused a deprivation of educational benefits.[118] Finally, the district must also establish that when the IEP was drafted, it could implement it and provide the student with a FAPE.[119]
In sum, a tribunal must conduct a two-prong analysis, i.e., whether the school district complied with the procedural requirements in the IDEA and b) whether the IEP as developed is reasonably calculated to enable the child to receive educational benefits. [120]
After a full examination of the record, the district has (a) denied the parent meaningful participation in the student placement process121 by continually placing the student in an ICT class without regard to his actual and unique needs as documented by the independent evaluations, 122 (b) failed to serve an adequate response to the DPC, (c) offered no evidence of a PWN, (d) failed to comply with the procedural safeguards and assess the student in all areas of disability, and (e) create IEPs reasonably calculated to enable the student to receive educational benefits.[123] Taken together, these procedural violations substantively denied the student’s right to a FAPE for the 2022/2023 school year and the 2018/2019, 2019/2020, 2020/2021, and 2021/2022 school years. 124 Additionally, the district failed to rebut the parent’s evidence that the unilateral placement is appropriate and that the equities favor the parent.
121 Sykes v. District of Columbia, supra]
122 Id. and R.B. v. New York City Dep’t of Educ., supra.
Further, the district did not offer cogent explanations125 for CSE’s decisions regarding (a) the disputed IEPs despite the fact that the student was entering 4th grade but had neither gained nor solidified his basic reading skills to make the important transition from “learning to read” to “reading to learn” academic information across the different content areas in the general education curriculum;[126] and (b) the failure to include in the IEPs systematic and multisensory remedial reading instruction over and above that which is normally provided to student’s in general education. [127]
Based on the entire written record, the witness testimony, and the total lack of evidence by the district, this tribunal is constrained to find that the district denied the student a FAPE for the school years at issue. [128]
II) Prong II – Appropriate Unilateral Placement The parents have the burden to establish by a preponderance of the evidence[129] that the chosen unilateral placement is appropriate, to wit: that it provides educational instruction specifically designed to meet the student’s unique special education needs. [130] However, the private school placement “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[131] The parents must demonstrate that the private school placement is reasonably calculated to
125 Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1002 enable the child to receive educational benefits to likely produce progress, not regression.[132]
Therefore, “[n]o 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 prove that a child is receiving an educational benefit. Still, courts assessing the propriety of a unilateral placement must 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.”[133]
The documentary and testimonial evidence the parent offered establishes that the student has made consistent progress in reading level. In the Fall of 2022, the student was reading at Level K,134 and by June 2023, the student was reading between Level L and Level M.[135] The progress reports demonstrate growth in all areas through WRS multisensory reading instruction in the classroom[136] and small class sizes and ratios tailored to the student’s unique needs in each of the content areas,[137] as per the recommendations of the two psychologists and the speech pathologist that were disregarded by the CSE when creating the 06/22/2022 IEP.
Based on the foregoing, I hold that the unilateral placement in the private school is the student’s appropriate educational program and placement, with uniquely adapted class ratios with WRS multisensory reading instruction embedded throughout the student’s day and across the curriculum in all content areas, together with speech and language therapy, occupational therapy and counseling.
III) Prong III – Equities (Tuition Reimbursement) Once the parent establishes the appropriateness of the unilateral placement, "the courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[138] In making that equitable determination, a hearing officer may consider many factors, to wit: a) whether a parent’s unilateral withdrawal of the student from the public school was justified139 and with adequate notice to the district,[140] b) whether the amount of private school tuition was reasonable, c) whether a parent availed themselves of needbased scholarships or other financial aid from the private school and d) whether there was any fraud or collusion in generating/inflating the tuition to be charged to a district, or the arrangement with the private school was fraudulent or collusive in any other respect. [141]
In New York, the district must prove that the equities do not favor the parent. [142] Still, the parents must identify the specific remedy they seek so that the IHO can craft an appropriate award.[143] The need to specify a remedy is akin to a pleading requirement to provide the district with fair notice of the claim and an opportunity to prepare a defense. 144
139 E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014]
If the district meets this burden, the burden of proof does not shift to the parent. However, absent rebuttal evidence by the parent, the hearing officer will be constrained to find for the district.
Again, the district has failed to carry its burden of proof. The district did not offer or point to evidence to impeach the parent’s evidence demonstrating that (a) the unilateral placement was justified145 and with adequate notice to the district, 146 (b) the amount of private school tuition was reasonable, c) need-based scholarships or other financial aid from the private school were not available and d) there was no fraud or collusion in generating/inflating the tuition to be charged to a district, or the arrangement with the private school was not fraudulent or collusive in any other respect.[147] The district also failed to carry its burden that it was prejudiced by the parent serving her TDN nine days before the 09/01/2022 deadline.
The parent submitted evidence demonstrating that the equities are in her favor; therefore, she is entitled to be reimbursed $14,600.00 and direct funding to the school for the balance of $52,900.00.
IV) Compensatory Education An appropriate equitable remedy for a denial of a FAPE can include an award of compensatory education.[148] A hearing officer is authorized under the IDEA to fashion an appropriate remedy, and the courts have held that compensatory education is an available option to compensate a student for a denial of a FAPE. 149 This remedy may be in various
145 E.M. v. New York City Dep't of Educ., supra
146 Forest Grove Sch. Dist. v. T.A., 557 U.S. 247 and E.M. v. New York City Dep't of Educ., 758 F.3d 461 forms of retroactive and prospective equitable relief that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.”[150] Yet, unlike an IEP that only needs some benefit, compensatory awards must do more, i.e., they must compensate, and thus hearing officers may award educational services to be provided prospectively to compensate for a past deficient program. [151]
Therefore, compensatory education as a remedy is a “replacement of educational services the child should have received in the first place.”[152] Such claims are subject to a two-year statute of limitations measured from when the parent knew or should have known about the school district's alleged action(s) or violation (s), which forms the basis of the due process complaint.[153] This approach is known as the “discovery rule” or a “reasonable discovery date.”[154] It was the clear intent of Congress to eschew the occurrence [accrual] rule and have the statute of limitations begin upon the date of discovery.[155]
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach[156] and 2) the “qualitative” approach.[157] The quantitative approach provides for compensatory education equal to the period of deprivation. In contrast, the qualitative approach fashions an award based upon individual assessments and is 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.”[158]
The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the court’s sound discretion to fashion a relief that is appropriate in light of the purpose of the IDEA without articulating a specific formula or approach.[159] When calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the student’s current needs.” Still, 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”[160] and appropriate in light of the purpose of the IDEA. [161]
Under New York law, the district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award.[162] However, the parent must identify the specific remedy they seek so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE.[163] This is akin to a pleading requirement to provide the district with fair notice of the claim.[164] The IHO may order that an award of services be placed in a bank to be used by a specific date to allow flexibility in the implementation.[165]
Here, the parent offered objective assessment data and affidavit testimony to support the proposed resolution of 300 hours of compensatory WRS multisensory reading instruction. The affidavit testimony of the speech pathologist established the qualitative calculation to determine this number of hours.[166] The speech pathologist’s findings and recommendations were made without regard to specific school years. Instead, the recommendations were based on the assessed two-year deficit in the student’s decoding, encoding, writing, and comprehension skills across all content areas. The calculation of 300 hours was based on the fact that the student’s ability to read fluently with comprehension stagnated in the third grade. The compensatory education services will enable the student to learn to read fluently so he can read to learn and access the general education curriculum across the different content areas. This will bring the student to a level he otherwise would have achieved if the district provided an appropriate special education program and placement.
Therefore, absent evidence to the contrary, the district failed in its direct case to demonstrate (a) that either the 300 hours of services and/or the provider’s rate are excessive and should be reduced or (b) that the student is not entitled to any compensatory services because he was not denied a FAPE from 2018 through 2022.
ORDERS
NOW, based upon the above Findings of Fact and Conclusions of Law, it is hereby
ORDERED that that the Respondent/District denied the student a FAPE for the 2018/2019, 2019/2020, 2020/2021, 2021/2022 and 2022/2023 school years, and it is further
ORDERED that the Petitioner/Parents’ request for tuition reimbursement for the private school for the 2022/2023 school year is GRANTED, and it is further
ORDERED that the Respondent/District shall remit direct funding to the Private School for the outstanding balance of the tuition in the amount of $52,900.00 on or before 08/29/2023, and it is further
ORDERED that the Respondent/District shall reimburse the Parent the amount of $14,600.00 for partial payment of the tuition on or before 08/29/2023, and it is further
ORDERED that the Petitioner/Parent’s demand for a bank of 300 hours of compensatory multisensory reading instruction is GRANTED, and it further
ORDERED that the 300 hours of compensatory multisensory reading instruction shall be placed in a bank without an expiration date to be used at the parent’s discretion, and it further
ORDERED that the Respondent/District shall remit payment for the compensatory Wilson Reading System multisensory reading instruction in the amount of $220.00 per hour to the certified speech pathologist within 35 days of receipt of invoices for services rendered.
Dated: August 22, 2023 SO ORDERED
Teresa R. Nuccio, Esq.
Impartial Hearing Officer (Digitally Signed)
Teresa R. Nuccio, 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.
APPENDIX A
REDACTIONS
Student: [REDACTED]
Parent: [REDACTED]
Date of Birth: [REDACTED] Psychologist#1: [REDACTED] Psychologist#2: [REDACTED], PhD Speech Pathologist: [REDACTED]
School CSE Liaison: [REDACTED]
Private School: The [REDACTED] Elementary School Date of Birth: [REDACTED]
APPENDIX B
DOCUMENTS ADMITTED INTO EVIDENCE
Parent Description Date Pages
Exhibits
A. Impartial Hearing Request 03/27/2023 13 pages
B. Due Process Response with email transmission 04/24/2023 4 pages
C. Letter from [REDACTED] to [REDACTED] TO 04/25/2022 04/12/2022 2 pages
D. Letter to [REDACTED], CSE Chairperson from [REDACTED] with email confirmation 08/22/2022 5 pages
E. Electronic Correspondence between [REDACTED] and 01/08/2018 1 page
[REDACTED]
F Educational Update 01/08/2018 2 G Social History Update 01/11/2018 2 H Student Progress Report Undated 2 I Electronic Correspondence between [REDACTED] and 09/17/2018 2
[REDACTED] TO
09/18/2018 J Electronic Correspondence between [REDACTED] and 05/21/2019 2
K-3 Teachers at [REDACTED] K Electronic Correspondence between [REDACTED], 11/12/2019 1
[REDACTED] and [REDACTED]
L Electronic Correspondence between [REDACTED] and 11/12/2019 2
[REDACTED] TO
11/14/2019 M Electronic Correspondence between [REDACTED] and 01/03/2020 2
[REDACTED] TO
01/09/2020 N Occupational Therapy Report 01/09/2020 4 O Vision Evaluation 01/23/2020 2
APPENDIX B (continued)
DOCUMENTS ADMITTED INTO EVIDENCE
P. Electronic Correspondence between [REDACTED] and 02/28/2020 1 page
[REDACTED] TO
03/02/2020 Q Report Card 2019/2020 3 R Electronic Correspondence from [REDACTED] to 06/25/2020 1
[REDACTED]
S Electronic Correspondence between [REDACTED], 08/11/2020 2
[REDACTED] and [REDACTED] TO
08/12/2020 U Electronic Correspondence between [REDACTED] and 09/19/2020 3 [REDACTED]administration, [REDACTED]and staff TO 09/21/2020 V Electronic Correspondence between [REDACTED] and 10/05/2020 3
[REDACTED] TO
10/06/2020 W Electronic Correspondence between [REDACTED] and 12/02/2020 5
[REDACTED] TO
12/07/2020 X Student Pre-Assessment – Teacher Form 12/16/2020 14 Y Electronic Correspondence from [REDACTED] to 2nd 12/23/2020 1
Grade Teachers Z Comprehensive Data Driven Report 01/21/2021 7 AA Electronic Correspondence from [REDACTED] to 03/02/2021 2
[REDACTED]
BB Electronic Correspondence between [REDACTED] and 03/05/2021 2
[REDACTED]
CC Neuropsychological Evaluation 04/19/2021 21
TO 04/20/2021 DD Electronic Correspondence from [REDACTED] to 2nd 05/10/2021 1
Grade Teachers TO 05/19/2021 EE Electronic Correspondence between [REDACTED], 06/10/2021 1
[REDACTED] TO
06/11/2021
APPENDIX B (continued)
DOCUMENTS ADMITTED INTO EVIDENCE
FF. Electronic Correspondence from [REDACTED] to 06/15/2021 1 page
[REDACTED]
GG Report Card 2020/2021 3 HH Student Progress Report - Counseling 08/13/2021 2 II Electronic Correspondence between [REDACTED], 08/13/2021 2
[REDACTED]
JJ Dolch Sight Word List by grade in frequency order 09/15/2021 1 KK Electronic Correspondence between [REDACTED] and 09/24/2021 6 [REDACTED] with attachment LL Electronic Correspondence between [REDACTED] and 10/18/2021 2
[REDACTED] TO
10/19/2021 MM Electronic Correspondence between [REDACTED] and 10/25/2021 1
3rd Grade Teachers TO 10/27/2021 NN Electronic Correspondence between [REDACTED] and 10/25/2021 2
3rd Grade Teachers TO 10/27/2021 OO Electronic Correspondence between [REDACTED], 10/27/2021 1 [REDACTED] and 3rd Grade Teachers PP Electronic Correspondence from [REDACTED] to 10/31/2021 2 [REDACTED] with attachment QQ Email correspondence between [REDACTED], 11/03/2021 2 [REDACTED]and 3rd Grade Teachers TO 11/04/2021 RR Progress Report 11/2021 2
SS Report Card 2020-2021 2 TT Educational Assessment 03/04/2022 10 UU Student Progress Report - Counseling 06/15/2022 2 VV Program Description - [REDACTED] Undated 1 WW Daily Schedule – Class 201 [REDACTED] 2022/2023 1 XX Literacy Portfolio 09/08/2022 20
TO 09/23/2022
APPENDIX B (continued)
DOCUMENTS ADMITTED INTO EVIDENCE
YY. Midyear Report Card 2022/2023 11 pages
ZZ. Wilsons Fundations Step 2 TO 05/18/2023 09/08/2022 3 pages
CCC. AAA End of Year Report Card 2022/2023 11 BBB Enrollment Contract 02/16/2022 5 TO 04/13/2022 Affidavit of Payment 12/02/2022 1 page
DDD. Proof of Payment TO 04/26/2023 EEE U.S. Individual Income Tax Returns 2021 4 02/18/2022 6 pages
III. FFF Subpoena Duces Tecum – [REDACTED]with Proof of 06/23/2023 3 Service GGG Subpoena Duces Tecum – [REDACTED] with Proof of 06/23/2023 3 Service Affidavit of Dr. [REDACTED] 06/29/2023 4 pages
LLL. JJJ Affidavit of [REDACTED] 06/29/2023 3 KKK Affidavit of [REDACTED] 06/29/2023 5 Affidavit of [REDACTED] Appendix B iv of iv 06/29/2023 7 pages
Footnotes
[1] A (All references are to the parent’s exhibits. The numbers following the colon without a paragraph symbol refer to the page number.)
[2] This claim is subsumed within the parent’s IDEA claims as the parent has only set forth in a conclusory fashion that the student was subjected to discrimination or excluded from education by reason of his disability This allegation appears to be boilerplate language. Therefore, neither a separate analysis nor an award will be rendered by the tribunal.
[4] A:10, and see LLL:¶35 5D
[6] Ex. B
[7] See colloquy, Tr.19-30.
[8] Tr.22:23-25, and T23
[9] Tr.31:1-9
[10] Tr.30-45
[11] Tr.47-54, 114-120 (The witness was recalled later in the hearing.)
[13] Tr.121:17-25
[14] Tr.122:1-8 26 Tr.164:18-25, 165:1-9
[15] Tr.86
[16] Exhibits JJ (Tr.96) and HHH (Tr.110) were admitted over the district’s objections. Additionally, exhibits K, L, KK, and LL were admitted into evidence. However, the court reporter did not reference or include these exhibits in the index. See the Transcript on pages 75, 76, and 98-100.
[17] Tr.24-25
[18] The parent updated and amended Exhibit ZZ to reflect the student’s most recent reading results. The district consented to the amendment (Tr.160).
[19] Tr.133
[20] Tr.146
[22] Tr.143-159
[23] Tr.133:25, Tr.153:12-25
[24] Tr.161:18-25, 162:1-9
[25] Tr.162:1-9
[27] 20 U.S.C. § 1400 et seq., Education Law § 4404 et seq., 34 C.F.R. § 300 et seq.; and 8 NYCRR § 200.5 et seq., 29 A:2. Prior to the most recent IEP, the student was classified as “Other Health Impairment.”
[28] LLL:¶3-4
[30] A:2, CC:13, TT:2 and 8, III:¶8-12, KKK:¶8
[31] III:¶6, CC, and Tr.133-135
[32] Tr.133-135
[33] Tr.136
[34] Tr.136:6-25
[35] Tr.138:11-21
[36] Tr.146:23-25, 147:1-9
[37] Tr.147:8-25, 148:22-25, 149:1-4
[38] A:3 and N
[39] A:3 and LLL:¶18
[40] A:3 and 8 [It is noted that early in the student’s educational career, these deficits outwardly manifested as an inability to remain seated, yelling out, and making non-linguistic sounds during group lessons (A:3).]
[42] LLL:¶20-24
[43] A:6, LLL: ¶20-24
[44] LLL:¶24-26; CC and TT
[45] LLL:¶27-29
[47] A:2 and 8; LLL
[48] A:3; LLL
[49] A:9; III, JJJ, and KKK
[51] Id.
[52] Id.
[55] Id.
[56] Id.
[57] III:¶10-11
[58] III:¶15-16
[60] Tr.154:8-14, Tr.150:6-22; and III:¶9
[61] Tr.150:6-22
[62] Tr.153:20-25
[63] Tr.155:5-9
[65] Id.
[66] Id.
[67] III:¶3, 18
[70] AAA-2:§III
[72] KKK:¶12-16 documents that were so-ordered by this tribunal on 06/23/2023.
[75] Exhibits E, I through M, P, R, S, U through Y, and AA through FF.
[78] Id.
[79] The district failed to offer such evidence or respond to the parent’s subpoenas requesting this information and [REDACTED]'s, has arranged a Tuition Refund Plan (the "TRP") to protect the Parent's yearly financial obligation under the terms of this Enrollment Agreement. The TRP insures tuition (prepaid and due) in the event of separation according to the terms of the policy. The Parent(s] are automatically enrolled in the TRP unless the Parent opts out by signing the waiver below. (See also CCC for the amount of the separate, non-refundable premium of $607.50.
[81] Id.
[84] BBB:3 “Tuition Refund Plan:” In view of the obligations set forth in this Agreement, [REDACTED], in partnership with
[85] III:4; JJJ:¶7-8
[86] Id.
[87] JJJ:¶3 and 8
[88] Tr.152:13-25, Tr.153:1-7; JJJ:¶8
[89] N:3, TT:5, [Reading] and TT:7, III:¶5, 8 and 12, KKK:¶11 96 Id. (italics added).
[90] R.E. v. New York Dep’t of Educ., 694 F.3d 167, 184-185 [2d Cir. 2012]; and New York Education Law §4404[1][c]. It is noted that the plain language of the statute is silent as to the burden of proof with respect to the equities and only speaks to the parent’s burden vis-à-vis the appropriateness of the unilateral placement. Although R.E. v. New York Dep’t of Educ. holds that the parent has the burden on Prong III, this holding relies on Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186 [2d Cir. 2005], which was decided prior to the amendment of New York Education Law §4404[1][c] in 2007. Compare, Archive 2007 [L.2007, ch. 378, § 19, eff. 06/30/07], with Archive 2006. Prior to 2007, the statute was silent as to the burdens of proof and persuasion, thereby following the Burlington/Carter standard, which placed the burden on Prongs II and III on the parent.
[91] 20 U.S.C. § 1415 (i)(2)(c). See also, Reid v. District of Columbia, 401 F.3d 521
[92] Greenwich Collierles v. Director, 990 F.2d 730, 736 [3rd Cir. 1993], affirmed 512 U.S. 246 [1994]
[93] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 988, 1002 [2017] [hereinafter “Endrew F.”]
[94] L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 95, 110 [2nd Cir. 2016]
[95] Id. (italics added).
[97] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1002
[98] L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 110
[99] Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267 [D.C.D.C. 2007]
[100] Id.
[101] R.B. v. New York City Dep’t of Educ., 2011 U.S. Dist. LEXIX 106273, p.15; and Sykes v. District of Columbia, 518 F. Supp. 2d 261, 267, citing Lesesne v. District of Columbia, 447 F.3d 828, 832 [D.C. Cir. 2006]; compare Jalloh v. District of Columbia, 535 F. Supp.2d 13, 20 [D.C.D.C. 2008]
[102] Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F. 2d 563, 567 [2d Cir. 1989].
[103] 20 U.S.C. §§ 1400-1482
[104] See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 183 [1982] [hereinafter referred to as “Rowley” [internal quotations omitted].
[106] See generally, Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Rowley, 458 U.S. 206-07; 20 U.S.C. §1400 [d] [1] [A]-[B].
[107] Rowley, 458 U.S. 204
[108] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1000
[109] Endrew, 137 S.Ct. 994; and See 34 CFR §300.320 [a] [2] [i], [2] [i] [A]; 8 NYCRR §200.4 [d] [2] [iii].
[110] Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 [2d Cir. 2005]; and Walczak, 142 F.3d 119, 130 [2d Cir. 1998] [internal citations omitted]
[111] See P. v. Newington Bd. Of Edu., 546 F.3d 111, 119 [2nd Cir. 2008]
[112] Rowley, 458 U.S. 182-183 (quotations omitted)
[113] Rowley, 458 U.S. 182
[114] Rowley, 458 U.S. 205
[115] 20 U.S.C. § 1414 [b] [2] [A], [b] [3] [B]; see also 34 C.F.R. § 300.4, § 300.305, § 300.324; 8 NYCRR § 200.4 [b], [f] [1]
[116] 34 CFR § 300.304 [c] [6]; 8 NYCRR § 200.4 [b] [6] [ix]; see Application of the Bd of Educ of Buffalo Sch. Dist, Appeal No. 13-056 at 12-13; Application of the Dep’t of Educ., Appeal No. 07-018).
[117] R.E., 694 F.3d 190-191 [b] [2] [A], [b] [3] [B]; see also 34 C.F.R. § 300.4, § 300.305, § 300.324; 8 NYCRR § 200.4 [b], [f] [1] 124 Id. and R.B. v. New York City Dep’t of Educ., supra.
[118] 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, 525-526 [2007] and R.E., 694 F.3d 190
[119] M.O. v. N.Y. City Dept. of Educ., 793 F.3d 236, 244 [2nd Cir. 2015]
[120] Reid v. District of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] and R.E. v. New York City Dep't of Educ., 694 F.3d 190-191
[123] Reid v. District of Columbia, 401 F.3d 516, 524; R.E. v. New York City Dep't of Educ., 694 F.3d 190-191; 20 U.S.C. § 1414 [1993] (“…the §1401 [a] [18] requirements, including the requirement that the school meet the standards of the state educational agency, 1401 [a] [18] [B] -- do not apply to private parental placements.”)
[126] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1002
[127] Bd. of Educ. v. J.P., 2019 U.S. Dist. LEXIS 173804, pp.*34-35 [EDNY 2019]
[128] Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 137 S.Ct. 1002 and L.O. v. N.Y. City Dep’t of Educ., 822 F.3d 110
[129] Gagliardo, 489 F.3d 105, 112 [2d Cir. 2007] [internal citations omitted]
[130] Gagliardo, 489 F.3d 105, 115 [internal citations omitted]
[131] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d Cir. 2006], citing Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 14
[132] Gagliardo, 489 F.3d at 112 [internal citations omitted]
[133] Id.
[135] AAA (End of Year Report Card). It is noted that the school liaison testified that by the end of the year, the student advanced to Level L. However, the report card prepared by the student’s teachers indicates that the student was reading at Level M.
[136] ZZ [as amended]
[137] XX and AAA 144 See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[138] Forest Grove Sch. Dist. v. T.A., 557 U.S. 246-247
[140] Forest Grove Sch. Dist. v. T.A., 557 U.S. 247 and E.M. v. New York City Dep't of Educ., 758 F.3d 461
[141] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[142] Education Law § 4404 [1] [c]
[143] 8 NYCRR § 200.5 [i] [1] [v] 149 P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008].
[147] E.M. v. New York City Dep't of Educ., 758 F.3d 461
[148] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 [2d Cir. 2014].
[150] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]; and Doe v. East Lyme, 790 F.3d at 454.
[151] See Reid v. Dist. of Columbia, 401 F.3d 516, 525 [D.C. Cir. 2005].
[152] See Id. at 518.
[153] 8 NYCRR §200.5[J][1][I] and 20 U.S.C. §1415 [b] [6] [B] and [f] [3] [C]
[154] G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 613 [3rd Cir. 2015]
[155] Id.
[156] M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation.].
[157] See, e.g., Reid, 401 F.3d at 518, 524
[158] Id.
[159] Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008]
[160] Doe. v. East Lyme, 790 F.3d 457.
[161] Doe v. East Lyme, 790 F.3d 457 citing Sch. Comm. Of Burlington v. Dep’t of Educ., 471 U.S. 359, 369 [1985]
[162] Education Law § 4404[1][c]
[163] See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 [E.D. Pa. 2021], [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1, 5 [D.D.C. 2017] [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted].
[164] See generally, Rombach v. Change, 355 F.3d 164, 171 [2d Cir. 2004]
[165] M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 [S.D.N.Y. 2017]
[166] A and JJJ