NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 597916 – NYC: 247097
FINDINGS OF FACT AND DECISION
Student’s Name: 1 REDACTED (“Student”)
School District: N.Y.C. Dept. of Ed.,
Impartial Hearing Officer: Peggy K. Chan
Date of Filing: 03/28/2023
Hearing Requested by: REDACTED (“Parent”)
Dates of Hearing: 07/25/2023, 08/02/2023, 08/04/2023, 08/09/2023
Record Close Date: 08/21/2023
Date of Decision: 08/21/2023
1 Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 14, 2023
For the Student:
REDACTED (hereinafter referred to as “Parent’s Representative”) REDACTED (hereinafter referred to as “Parent”) REDACTED (hereinafter referred to as “Private School Witness”) For the Department of Education (“DOE”): REDACTED (hereinafter referred to as “District’s Representative”)
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 2, 2023
For the Student:
Parent’s Representative
For the Parents:
REDACTED (hereinafter referred to as “Psychologist”)
For the Department of Education:
District’s Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 4, 2023
For the Student:
Parent’s Representative
For the Parents:
For the Department of Education:
District’s Representative
NAMES AND TITLES OF PERSONS WHO APPEARED
AUGUST 9, 2023
For the Student:
Parent’s Representative
For the Parents:
For the Department of Education:
District’s Representative
BACKGROUND
On March 28, 2023, 2 Parent, through Parent’s Representative, filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. and its federal and state implementing regulations (Ex. P-A).
In the DPC, Parent alleges, among other things, that the District failed to offer Student a free appropriate and public education (“FAPE”) for the 2022-2023 school year, in that the District failed to implement an Individualized Education Program (“IEP”) developed on October 28, 2022 (Id. at 3). Specifically, it is alleged that the District failed to offer Student a placement in a state-approved nonpublic school as recommended in the IEP (Id.). 3 On March 27, 2023, Parent unilaterally enrolled Student in Private School (Id.).
By way of relief, Parent seeks: (1) tuition funding for the cost of Student’s educational program at Private School for the 2022-2023 school year; (2) door-to-door special transportation of limited time travel to and from Private School; and (3) compensatory education services of 1:1 Applied Behavior Analysis (“ABA”) therapy for the period commencing July 1, 2022 of the 12-month 2022-2023 school year and ending on March 27, 2023 (Id.; Tr. at 110-120; Ex. P-A-4-5).
Considering the foregoing and as more fully discussed below, I find that under the Burlington/Carter analysis:[4] a) the District failed to meet its burden in showing that it offered Student a FAPE for the 2022-2023 school year, b) Private School offers Student an educational program with specially designed instruction sufficient to meet Student’s needs, and c) the equities support Parent’s requested relief of tuition funding. In addition, I find that Student is entitled to receive special transportation as requested
2 The DPC was submitted to the District after business hours on March 27, 2023, and it was deemed to have been filed on March 28, 2023 in the District’s Impartial Hearing System. 3 Parent alleges a number of substantive allegations in the DPC, including the District’s failure to implement a Finding of Facts and Decision (“FOFD”) dated July 24, 2022 for the 2019-2020, 2020-2021, and 2021-2022 school years. This claim was adjudicated on the merits in Case No. 240707, which resulted in a FOFD dated March 8, 2023 finding that Student was denied a FAPE in the 2022-2023 school year. In my order denying the District’s motion to dismiss the DPC under the doctrine of res judicata, I allowed Parent to proceed with this DPC under a separate legal theory that Student was denied a FAPE in the 2022-2023 school year due to the District’s failure to implement the October 28, 2022 IEP (Ex. IHO-I). As such, in determining whether Student was provided a FAPE for the 2022-2023 in this case, I only considered whether the District failed to implement the October 28, 2022 IEP. by Parent. Further, I find that Student is not entitled to compensatory ABA therapy for the FAPE Student was deprived of during the 2022-2023 school year.
JURISDICTION
A decision in this matter is being rendered pursuant to the IDEA 5 and its implementing regulations, 6 and the New York State Education Law[7] and its implementing regulations. [8]
PROCEDURAL HISTORY
I was appointed on March 31, 2023 to determine the claims in the DPC and to conduct an impartial hearing pursuant to 20 U.S.C. § 1415(f) and the New York State Education Law § 4404(1). On April 27, 2023, the resolution period expired without the parties reaching an agreement. On May 1, 2023, a pre-hearing conference was held with the parties. On the record, the District moved to dismiss the DPC with prejudice under the doctrine of res judicata and for the failure to state a claim upon which relief could be granted. The parties subsequently submitted written briefs on the motion to dismiss. On May 25, 2023, I issued an order denying the District’s motion to dismiss (Ex. IHO-I).
On June [5], 2023 and July [6], 2023, the parties appeared for status conferences. On June 13, 2023, Parent submitted a written motion for pendency, and on June 30, 2023, the District submitted a written response in opposition to pendency. On July 10, 2023, I issued an order on pendency granting Parent’s motion in part and denying Parent’s motion in part (Ex. IHO-II).
On July 25, 2023, August 2, 2023, August 4, 2023 and August 9, 2023, a due process hearing (“DPH”) was held. At the DPH, the District did not seek to introduce any witness testimony or documentary evidence (Tr. at 23). Further, the District conceded that it had failed to offer Student a FAPE for the 2022-2023 school year (Tr. at 23-24).
Parent sought to introduce 13 documents in support of her case, including the sworn affidavits of Private School Witness and Psychologist (Ex. P-L and P-M, respectively). Parent’s exhibits P-A through P-F and P-H through P-K were admitted to the record, and P-G was excluded (Tr. at 34). The District indicated that it intended to cross-examine both affiant witnesses (Tr. at 24). Parent’s exhibits P-L and P-M were subsequently admitted to the record when the witnesses testified (Tr. at 37 and 58). A list of exhibits admitted into evidence is attached hereto as Appendix B.
Both the District and the Parent made opening statements and closing statements (Tr. 104-120, 171-185).
FINDINGS OF FACT AND DECISION
After a full review of the record generated at the hearing, I make the following findings of fact and determinations.
Student is a REDACTED -year-old classified as a student with Other Health Impairment under the IDEA (Ex. P-C-1). Student’s eligibility for special education supports and services is not in dispute (Id.).
Student is diagnosed with Autism Spectrum Disorder (“ASD”) and Unspecified Intellectual Disability (Ex. P-D-1 & 9). Student has a history of significant global developmental delays associated with REDACTED (Ex. P-D-1; P-F-1). Student is nonverbal and non-ambulatory (Ex. P-D-1-2). Student has little control of her REDACTED(Id. at 2). Student is entirely dependent on others for feeding and self-care activities and requires her food to be pureed due to delays in her chewing abilities (Id.). Student is only able to write, cut, glue, and highlight with hand-over-hand assistance from a teacher (Id.).
According to a neuropsychological evaluation conducted by Psychologist on June 2, 2022, Student was unable to complete standard cognitive and academic testing measures due to her significant physical and speech delays (Id. at 8). A review of Student’s medical and academic records and interviews with Parent, teacher, and related service providers indicated a history of problems with reciprocal social communication, comprehending and producing nonverbal communication, developing relationships and friendships, repetitive behaviors, and sensory sensitivities (Id. at 9). Clinical observation and record review showed that Student’s cognitive and adaptive abilities are extremely low (Id.). Student exhibits significant global delays and requires assistance with all activities of daily living (Id. at 8). Her expressive and receptive language abilities are extremely limited, and she cannot consistently communicate in a functional manner (Id.). Student does not produce any word approximation, but rather communicates by producing a nondescript vocalization (Id.). Student cannot consistently manipulate objects or sustain eye contact (Id.). Parent and teacher rated Student’s adaptive function abilities across the areas of socialization, daily living, communication, and motor skills to be extremely low and below the 1st percentile for her age (Id. at 6-9).
To address Student’s needs, Psychologist recommended, among other things, that Student be placed in an educational placement in a rehabilitative education program that provides intensive therapies designed to target Student’s physical, cognitive, and adaptive functioning impairment (Id. at 9). Student required a multi-sensory teaching approach with tactile and visual stimulation, as well as both individual and small group instruction of no more than 12 students (Id.). In addition, Student required a 1:1 nurse due to her physical impairment and chronic seizure disorder (Id.). The evaluation also recommended the following to be added to Student’s IEP: (1) a total of 40 hours of 1:1 ABA therapy per week (30 hours in school and 10 hours home-based); (2) physical therapy (“PT”), four days per week for 45-60 minutes; (3) occupational therapy (“OT”), two times per week for 45-60 minutes; (4) speech-language therapy (“SLT”), five times per week for 45-60 minutes; and (5) social skills training in a small group (Id. at 9-10). In addition, Student was recommended to receive a functional behavioral analysis (“FBA”), an assistive technology (“AT”) evaluation, and an assessment of her seating systems and adaptive equipment (Id.). Furthermore, Psychologist recommended, among other things, 40 hours per week of compensatory 1:1 ABA therapy to make up for the lack of progress Student made from 2019 to 2022 while attending a DOE program (Id. at 11).
On October 28, 2022, the Committee on Special Education (“CSE”) convened an IEP meeting to determine an appropriate educational program and placement for Student for the 2022-2023 school year. The resulting IEP classified Student with Other Health Impairment and recommended a twelve-month placement in a state-approved nonpublic day program,[9] with the following related services: (1) OT, individual service, two times per week for 30 minutes; (2) parent counseling and training, group service, four times per year for 45 minutes; (3) PT, individual service, three times per week for 30 minutes; and (4) SLT, individual service, three times per week for 30 minutes (Ex. P-C-34-40). Student was also recommended to receive a 1:1 health paraprofessional to monitor seizures, AT devices, and special transportation from the closest safe curb to school, in a lift bus, to accommodate Student’s wheelchair (Id. at 35-40). The implementation date of the IEP was October 31, 2022 (Id. at 1).
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. [10]
Prong I - Denial of FAPE
The IDEA provides that children with disabilities are entitled to a FAPE.[11] A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP. [12]
A FAPE is offered to a student when: (a) the District 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.[13] In order to meet its substantive FAPE obligations, a school district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”[14] The Supreme Court has found that “[a] reviewing court may fairly expect those authorities [school district staff] 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.” [15]
To show a denial of a FAPE based on a failure to implement an IEP, a party must establish more than a de minimus failure to implement all elements of the IEP, and instead must demonstrate that the school district failed to implement substantial or significant provisions of the IEP. 16 Courts have held that it must be ascertained whether the aspects of the IEP that were not followed were substantial, or in other words, "material." [17]
As to Prong I of the Burlington/Carter standard, the District failed to meet its burden. The District’s Representative indicated on the record that it conceded Prong I, presenting no witnesses or documentary evidence to explain in a cogent or responsive way whether it had implemented the October 28, 2022 IEP (Tr. at 23-24). Furthermore, I find that the recommendation of a state-approved nonpublic school consisted of a material aspect of the IEP, and the District’s inability to offer an appropriate placement to Student from October 2022 to March 2023 was thus a failure to implement a substantial provision of the IEP. Therefore, I find that the District failed to offer Student a FAPE for the 2022-2023 school year.
Prong II – Appropriateness of Parents’ Placement
A private school placement must be "proper under the Act."[18] This means that the private school must offer an educational program that meets the student's special education needs.[19] Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate."[20] 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.'" [21]
To meet this burden, parents must establish, by a preponderance of the evidence, that the unilateral placement provides “educational instruction specifically designed to meet the unique needs of the 16 Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Fisher v. Stafford Township Bd. of Educ., 289 Fed. App'x 520, 524-25, 2008 WL 3523992 (3d Cir. Aug. 14, 2008); Couture v. Bd. of Educ., 535 F.3d 1243 (10th Cir. 2008); Neosho R-V Sch. Dist. v. Clark, 315 F.3d 1022, 1027 n.3 (8th Cir. 2003). student.”[22] The private school placement however “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements.”[23] The private school placement must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.” [24]
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. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private placement need not provide certified special education teachers or an IEP. [25]
Private School Witness, who serves as the Principal and Executive Director of Private School, testified in relevant part to the following: Private School is an independent school with extensive experience educating students who are severely disabled, including students with traumatic brain injuries, multiple disabilities, vision/hearing impairments, medical issues, cognitive delays, significant mobility issues, and other medical conditions (Ex. P-L-2). Most of Private School’s students are non-verbal communicators, use wheelchairs, and approximately half of its students are diagnosed with cerebral palsy (Id.; Tr. at 40). All of its students have limitations in their gross motor and fine motor skills and use AT devices to access and engage with their environment (Ex. P-L-3).
Private School offers a 12-month school year. In the 2022-2023 school year, Private School had 105 students from 5-21 years of age (Id.). Private School’s staffing for the 2022-2023 school year included teachers, nurses, related service providers, paraprofessionals, teachers of the visually and hearing impaired, social workers, a Director of Assistive Technology and Literacy Instruction, and a Director of Speech and Language Pathology (Id.). All of Private School’s teachers hold or are working toward master’s degrees (Id. at 11). All of its related service providers are certified and/or licensed (Id. at 3).
The Director of Assistive Technology and Literacy Instruction helps assess each student for their needs for AT devices and trains the staff and the students on their use (Id.). As all of Private School’s students present with significant communications and engagement challenges, the Director of Speech supervises all speech-language therapists and facilitates inter-disciplinary collaboration on the use of AT devices for each student (Id. 3-4). Private School offers various clinics to ensure student’s needs for equipment, orthotics, ambulation, feeding, and AT are assessed and met (Id. at 10-11).
Private School’s curricula across academic subjects are tailored for students with multiple disabilities and integrate opportunities to use hands-on manipulatives (Id. at 4-5). Students are grouped by age, development level, and their ability to learn and interact in the classroom (Id. at 3). The instructional model is based upon ongoing assessment and evaluation and interventions are adjusted as often as is necessary (Id. at 5). Educational and therapeutic decisions about the location, group size, intensity, and duration of interventions are based upon individual student response to intervention (Id.). Private School develops an individualized education plan for each student, and a new plan that reflects progress and assessments is implemented at the start of each new school year (Id. at 6-7). An interdisciplinary team collaborates regularly and extensively regarding programming and progress for each student (Id. at 7). Parent further testified that she speaks to Student’s teacher about Student’s progress on a daily basis (Tr. at 161-162).
Student began attending Private School on March 27, 2023 (Ex. P-L-12). Prior to her admission, Student was evaluated by an interdisciplinary team consisting of a director of education, a social worker, the director of occupational therapist, the director of physical therapist, a senior speech and language pathologist, and the director of vision and hearing services and was deemed to be an appropriate fit for Private School (Id.). Upon admission, Private School assessed Student for academics and related services using several formal and informal assessments (Tr. at 43). For the 2022-2023 school year, Private School developed an individualized program for Student, with goals and objectives to meet her specific needs and to track progress across multiple domains (Id. at 13, 16; Tr. 42-43).
Student required significant adaptations in the academic learning environment due to her physical, medical, learning, social/interpersonal, and communication needs (Ex. P-L-13-14). Specifically, Student was placed in a 6:1:1 special education classroom to accommodate her pace of learning and to address her distractibility, in a modified environment with reduced visual distractions and noise (Id. at 14). In the classroom, Student was provided extended time for response, pause time between instruction, increased space to maneuver a wheelchair, tangible lesson materials, adapted tools, and switch adapted digital books with audio feedback (Id.).
Student had a full-time, dedicated 1:1 paraprofessional to provide constant support in her daily living activities throughout the school day (Id.). Student received assistance with dressing and undressing, positioning, toileting, traveling, and self-care (Id. at 16-17). The paraprofessional ensured her safety, assisted her in fully participating in her academic and therapeutic sessions, and supported her in achieving the goals set by her teacher and the related service team (Id. at 17).
Private School provided Student with an intensive array of related services. Service providers followed a “push-in/pull-out” therapy model (Id. at 6). Therapists use clinical reasoning skills specific to the student’s needs to determine the environment and instruction that is optimal for learning (Id.).
Student received 1:1 SLT five times per week for 60 minutes, which allowed for accommodation and supports including extended processing time, sensory and movement breaks, redirection, repetition of tasks, paraprofessional education, and collaboration with allied professionals (Id. at 14-15). This mandate also provided for ongoing assessment of Augmentative and Alternative Communication (“AAC”) devices to help Student develop and improve her ability to independently communicate across a variety of contexts and enhance her overall participation during the school day (Id.). Through SLT, Student was able to expand her receptive language skills by accessing words and pictures symbols on her speech-generating device (“SGD”) to express herself and engage in conversations (Id. at 18-19; Ex. P-J-3-4). During structured and unstructured activities, Student initiated and maintained communication, commented, made requests, and identified her emotions using her SGD with eye gaze given moderate verbal, visual and gestural prompting (Id.).
Student received 1:1 OT for four 60-minute sessions per week, in which Student worked on building and maintaining a variety of skills including self-care, play, and academic skills (Ex. P-L-14-15). Student demonstrated progress in completing an art activity as she was able to use markers and brushes to create marks on paper for 5-10 second intervals, with minimum to moderate assistance (Id. at 19; Ex. P-J-4). Student engaged in music activities and accessed digital games and books by activating handheld instruments through switch activation, pressing buttons, and shaking (Id.). Student also made satisfactory progress in Activities of Daily Living (“ADL”) skills. With minimum to moderate assistance, Student could drink from a straw cup and remove the cup or straw from her mouth. She was provided with moderate to maximum assistance for upper body dressing (Ex. P-L-14-15; P-J-5).
Student received 1:1 PT for four 60-minute sessions per week, which worked on promoting independence in transitions, facilitation of muscles needed for functional activities, orthotic and equipment management, and caregiver training (Id. at 14, 16). The level of services provided Student the processing time needed for her to understand the tasks being asked of her and promoted carry-over activities and repetition needed for her to learn new skills (Id.). Student worked on transitioning from a standing to a seated position with minimal assistance, taking 10-15 consecutive steps with moderate assistance, and transitioning from sitting to standing with moderate assistance (Id. at 19-20; Ex. P-J-5-6). While in her gait trainer, Student could initiate 50% of all steps taken and could complete a full step about 25-50% of the time (Id.). Outside of her gait trainer, with maximum assistance, Student could take 5-8 steps independently out of 10-15 steps (Id.).
Additionally, Private School offered parents 60 minutes of parent training and counseling per month to teach them how to generalize school services at home and in the community and how to access community support for Student (Id. at 16).
Student’s daily class schedule included morning meeting, literacy, science, math, social studies, music, and art, as well as the related services and ongoing AT training (Id.)
Private School Witness testified that Student exhibited an eagerness to interact with her peers and team members and made noticeable progress in all areas of academics with the use of her AAC device (Id. at 14, 17). Private School Witness’ testimony, along with the progress report, show that during shared reading activities, Student achieved her goal of using her AAC device to generate requests, comments, or questions (Id. at 18; Ex. P-J-1). During group writing activities, when given prompts, modeling and ample time, Student wrote by selecting letters with her alternative pencil (Ex. P-L-18; P-J-2). During academic instruction, Student was able to identify several colors (Id.). During cooperative play experiences, Student could cheer on her classmates with her AAC devices and engage in give-and-take play with verbal prompting (Id.)
Parent also testified to the progress she had observed in Student since Student began attending Private School (Tr. at 146-147). For example, Student began to try to chew food on her own, whereas previously she would have to eat all of her food mashed (Tr. at 147). Student was now able to grab things off the floor and place them inside container (Tr. at 147).
I find Private School Witness to be familiar and knowledgeable of Student’s academic and medical needs, specific strategies for addressing her unique challenges, and progress in Student’s academic and functional areas, having personally participated in the development and monitoring of Student’s individualized program at Private School, observed Student in her classroom and therapy sessions on a daily basis, and regularly joined Student’s team to discuss her progress, goals, and adaptations (Id. 12-13).
Courts consider the totality of the circumstances in determining whether a unilateral placement is reasonably calculated to enable the student to receive educational benefits.[26] Private School Witness’ testimony and the progress report showed that Private School provided a customized and comprehensive program designed to address Student’s cognitive delays, communication deficits, and the medical needs and physical challenges that significantly impeded her ability to receive instruction. Private School’s approach of interweaving intensive related services and the 1:1 paraprofessional support throughout the school day, small student-to-teacher ratio, direct teacher support, individualized learning plan, its use of AT devices to promote engagement, and the various strategies and tools mentioned above, provided a structured, nurturing and multi-sensory setting that was required for Student to benefit from direct instruction and to make academic progress.
Taken together, the testimonies presented by Parent’s witnesses and documentary evidence establish that Private School was appropriate and provided Student with educational instruction and intensive related services specifically designed to meet Student’s unique special education needs, and reasonably calculated to enable her to derive educational benefit and make appropriate progress for the 2022-2023 school year. [27]
I therefore find that Parents have met their burden in proving that the private school program offered an educational program that met Student’s needs under Prong II of the Burlington/Carter standard.
Prong III – Equitable Factors
Even if a parent establishes a right to reimbursement under the IDEA, "courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant."[28] In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether a parent’s unilateral withdrawal of her child from the public school was justified, whether the parent provided the District with adequate notice of the withdrawal, whether the amount of private-school tuition was reasonable, whether the parent should have availed herself of need-based scholarships or other financial aid from the private school, and whether there was any fraud or collusion in generating (or inflating) the tuition to be charged to the Department, or whether the arrangement with the school was fraudulent or collusive in any other respect. [29]
The IDEA allows that reimbursement/funding may be reduced or denied if parents do not provide, either at the most recent CSE meeting prior to removing the student from public school, or by written notice ten business days before such removal, notice of the unilateral placement and specifically “that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense.”[30] This statutory provision “serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools.”[31] Although a reduction in reimbursement/funding is discretionary, courts have upheld the denial of reimbursement/funding in cases where it was shown that parents failed to comply with this statutory provision. [32]
I find that the weight of the evidence establishes that at all times, Parent cooperated with the District and its CSE’s efforts to develop an IEP and recommend a program and placement for the 2022-2023 school year. Parent attended and participated in the October 22, 2022 IEP meeting (Ex. P-C). The record shows that between October 2022 and March 2023 when Student was unilaterally placed at Private School, Parent, in good faith, cooperated with the District to attempt to identify an appropriate state-approved nonpublic school for Student and repeatedly followed up with the District regarding the search for a placement (Ex. P-A-3; Tr. at 141).
I further find Parent kept the District informed of her own efforts to locate an appropriate non-public school for Student (Tr. at 145). On March 13, 2023, Parent, through counsel, formally provided the necessary Ten-Day Notice of her concerns with the District’s ongoing failure to offer Student placement in a state-approved nonpublic school as recommended in the October 28, 2022 IEP (Ex. P-B). In the letter, Parent gave the District notice of their intention to unilaterally place the Student at the Private School for the 2022-2023 school year and to seek funding for the placement (Id.). The District did not present any evidence that they responded to the letter or that they attempted to address Parent’s concerns.
By way of relief, Parent seeks direct funding of the costs of Student’s educational program at Private School (Ex. P-A). The costs of Student’s program at the Private School were $51,128.60 for the portion of the 2022-2023 school year starting on March 27, 2023 (Ex. P-H-1; P-I-1). The amount covered tuition, related services, and a 1:1 paraprofessional (Ex. P-H-1). The record shows that Parent had not made any payments to Private School (Ex. P-I). Further, I find that Student consistently attended Private School during the school year at issue (Ex. P-K).
Parent also testified regarding Parent’s household income and her inability to pay for the educational program (Tr. at 146). I find that a case for direct funding based upon need has been made out. This evidence was not contested.
As the District provided no evidence challenging the cost of the tuition for Private School, I therefore find the cost to be reasonable. I also find that Parent incurred an obligation to pay the full tuition, in accordance with the terms of the Enrollment Contract (Ex. P-H-2). I do not find any factors applicable to warrant a reduction of the claim for tuition funding based upon equitable factors. The District did not introduce any evidence or put forth any argument with respect to Prong III. Overall and after considering the record at the hearing, I find that the equities support Parent’s claim for tuition funding.
Parent has therefore met the third criterion of the three-part test set out in the Burlington/Carter case for tuition funding. Having met all three criteria of the Burlington/Carter test, Parent is entitled to direct funding for the cost of Student’s placement at Private School for the 2022-2023 school year.
Special Transportation
The IDEA requires that a school district must provide transportation for a child with a disability “if that service is necessary for a disabled child ‘to benefit from special education,’ . . . even if that child has no ambulatory impairment that directly causes a ‘unique need’ for some form of specialized transport.”[33] Transportation may be deemed necessary “if in its absence a disabled child in private school would be denied ‘a genuine opportunity for equitable participation in [a special education program],’…or special education program benefits “comparable in quality, scope, and opportunity for participation…[to those provided for] students enrolled in public schools.’”[34] In addition, State law defines special education as “specially designed instruction . . . and transportation, provided at no cost to the parents to meet the unique needs of a child with a disability,” and requires school districts to provide disabled students with “suitable transportation to and from special classes or programs.” [35]
The October 22, 2022 IEP recommended Student to receive transportation from the closest safe curb location to school in a lift bus that could accommodate Student’s wheelchair (Ex. P-C-39-40). In October 2022, Student’s treating physician submitted a request for medical accommodations in support of Student receiving limited-time transportation as Student “cannot tolerate more than 60 minutes on the bus” (Ex. P-F-1; Tr. at 143).
Parent is seeking door-to-door special transportation on a mini lift bus of a duration of no longer than 60 minutes each way to and from Private School for the 2022-2023 school year (Ex. P-A-5). Parent testified that without limited time travel, Student would at times be on the bus for up to two and a half hours which resulted in Student missing some of her after-school therapy sessions (Tr. at 148-149, 157). The District’s Representative did not at any point during the DPH dispute Student’s eligibility for special transportation.
Based on Student’s well-documented medical needs and disabilities, I find that special transportation limited to no longer than 60 minutes each way is necessary to allow Student to benefit from Student’s special education program.
Compensatory Education Services
The relief requested by Parent is equitable in nature as Parent is asking the IHO to devise an appropriate remedy to address the District’s failure to provide Student with a FAPE for the 2022-2023 school year. On the record, Parent’s Representative clarified that Parent is seeking an order of 40 hours of compensatory 1:1 ABA therapy per week (30 hours at school plus 10 hours at home) for the period commencing July 1, 2022 of the 12-month 2022-2023 school year and ending on March 27, 2023 with Student’s enrollment at Private School (Tr. at 117, 120; Ex. P-M-3; Ex. P-D-10-11).[36] However, during her live testimony, Parent testified that she believed Student was receiving all the necessary services she needed at Private School (Tr. at 161). When asked whether Parent is requesting the compensatory ABA services to be provided at school or at home, Parent testified that she would like the services to be provided at home (Tr. at 161).
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.”[37] As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.”[38] In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” [39]
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education.[40] The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”[41] Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.”[42] Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.”[43] Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate,” and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’”[44] “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” [45] Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” [46]
There are generally two approaches to fashioning a compensatory education award. Under the quantitative approach, the compensatory award is based on the amount of time that comprised the FAPE deprivation (in which a student is entitled to compensatory education for a period equal to the period of FAPE deprivation).[47] Under the qualitative approach, the focus is on a student’s needs and is based on the specific educational deficits that resulted from the FAPE deprivation (with the compensatory award being the specific services needed to correct those deficits). [48]
The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion,” so long as “the relief is…appropriate in light of the purpose of the Act.”[49] In 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”; however, 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.” [50]
Before addressing details of Parent’s relief for compensatory services, it is necessary to address whether an appropriate remedy for the denial of a FAPE should consist of both tuition funding and compensatory education or services, which is being sought in the DPC.
The purpose of an award of compensatory education or services is to provide an appropriate remedy for a denial of a FAPE.[51] Some courts have held that compensatory education is not available as an additional or alternative remedy when reimbursement (or funding) for the costs of a unilateral placement is also at issue for the same time period[52] (emphasis added). The Second Circuit Court of Appeals has not directly addressed this question and, generally, appears to have adopted a broader reading of the purposes of compensatory education than the Third Circuit.
Unlike the Third Circuit, the Second Circuit's approach to compensatory education may leave room for unique circumstances where an award of compensatory education may be warranted where, for example, a student is unilaterally placed but the parent's request for tuition reimbursement (funding) is denied under a Burlington/Carter analysis. [53]
It has been stated that where it is “permitted, it would be the rare case where a unilateral placement is deemed to provide instruction specially designed to meet the student's unique needs but the student is also deemed entitled to compensatory education to fill gaps in the services provided by such unilateral placement.” [54]
A presently appropriate educational program does not abate the need for compensatory education. [55] However, even if a denial of a FAPE is shown, "[i]t may be conceivable that no compensatory education is required for the denial of a [FAPE] ... either because it would not help or because [the student] has flourished in his current placement.” [56]
Generally, an award of additional services should aim to place a student in the position the student would have been in had the district complied with its obligations under the IDEA.[57] The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE.[58] Any awarded compensatory education would need to provide an appropriate remedy for a denial of a FAPE, factoring in the tuition funding claim being awarded.
There is additional authority that also bears mentioning in the context of the relief sought, namely: “Indeed, an award ordered without considering the nature of the FAPE violation to be remedied and the impact of the award on the child's educational needs could ultimately do more harm than good for a student.”[59] The purpose of compensatory education is neither to punish the District[60] nor to “maximize the student's potential or to guarantee that the student achieves a particular grade-level in his areas of need. Thus, it would, for certain, be a pyrrhic victory if the delivery of an award of compensatory educational services only served to overwhelm the student or outpace the student's ability to make progress.” [61]
Under New York law, the District has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA.[62] However, the Parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue.[63] Here, although the District conceded that it failed to provide Student a FAPE in the 2022-2023 school year, it asserted that no compensatory ABA award is required without proposing any alternative remedy for the denial of FAPE (Tr. at 108-109).
Parent has identified the specific remedy she is seeking and has provided documentary evidence and testimony in support of her request. However, as shown below, Parent put forth conflicting evidence with respect to Student’s need for compensatory ABA services.
Parent presented the testimony of Psychologist to support her request for compensatory ABA services for the period commencing July 1, 2022 of the 12-month 2022-2023 school year and ending on March 27, 2023, with Student’s enrollment in Private School. Psychologist conducted a neuropsychological evaluation of Student on June 2, 2022 and his recommendations were discussed in detail earlier in this decision (Ex. P-M-3; Ex. P-D). Psychologist testified that in preparation of his testimony, he reviewed the October 28, 2022 IEP to determine what, if any, progress was made between June 2, 2022, when he last evaluated Student, and October 28, 2022 when the IEP was developed (Ex. P-M-3; Tr. at 65). As the IEP did not show any measurable progress made from the time of the neuropsychological evaluation, he believed it is reasonable for Student to receive compensatory educational services from July 2022 until March 27, 2023 (Ex. P-M-3). Specifically, Psychologist remained of the opinion that 1:1 ABA is the appropriate form of compensatory education programming for Student and he noted that Student’s neurologist had also recommended ABA for Student (Id.; Ex. P-D-3). Psychologist testified that Student has the most severe form of ASD (Tr. at 73-74). While he had considered other types of treatment that would be appropriate for children with severe ASD, ABA is the most researched and data-driven intervention and “by far the…primary treatment” for children with severe ASD (Tr. at 73-75). As “[r]esearch shows that ABA is most effective when provided on an intensive schedule and consistent basis with supervision and parent training by a Board Certified Behavior Analyst (“BCBA”),” Psychologist testified that Student “can only remediate the lack of progress from the 2022-2023 school year with the equivalent of a full-time program 1:1 ABA services for each week that she lacked appropriate instruction” (Ex. P-M-3). The compensatory ABA services recommended are a total of 40 hours of 1:1 ABA therapy per week consisting of 30 hours of 1:1 ABA therapy in school and 10 hours of 1:1 home-based therapy (Ex. PD-10-11; Tr. at 84-85, 97).
Despite Psychologist’s recommendation, Private School Witness notably testified that while Private School offers ABA instruction, in the 2022-2023 school year, Private School chose not to provide ABA instruction to Student as its BCBA and the interdisciplinary team had determined that ABA was not the best course of therapeutic treatment for Student (Tr. at 38-39, 46-47). Specifically, the BCBA had expressed that ABA is best utilized for students who have dysregulated behaviors that need to be addressed. Based on the Private School team’s observations of Student and the results of her assessments, Student did not exhibit any dysregulated behavior that needed to be modified (Tr. at 47). Student was willing, able, and ready to learn in a group setting with her peers who were chosen specifically to be in her class based on their learning styles (Tr. at 47).
Given the conflicting opinions of two of Parent’s witnesses, I find Private School Witness’ testimony as the more credible and accurate assessment as to the type of educational instruction and services appropriate to address Student’s current needs.[64] As addressed earlier in the decision, Private School Witness testified to the comprehensive assessments Private School had conducted on Student upon her admission, the ongoing monitoring and assessment of Student to adjust her programming as needed, and the regular and extensive discussions about Student’s progress and responses to interventions among Student’s interdisciplinary team and Parent. Student’s team of educators and related service providers observed and extensively interacted with Student in-person for hours each day and therefore would have the most comprehensive understanding of her current needs. In addition, I credit the opinion of Private School’s BCBA, a certified expert in the ABA methodology, that based on Student’s learning profile and behavior, ABA would not be an appropriate course of treatment for Student.
In contrast, Psychologist’s evaluation of Student was conducted in June 2022 and he had no interaction with Student or her family since a follow-up feedback session in 2022 (Tr. at 59). Psychologist’s observation of Student took place virtually on June 2, 2022 and Psychologist could not remember how long the session lasted (Ex. P-D-1; Tr. at 60). As such, Psychologist’s understanding of Student’s present level of performance and needs was based solely on his evaluation of Student in June 2022 and a review of the October 22, 2022 IEP. Based on his testimony, Psychologist has no information as to Student’s performance level or needs since October 22, 2022 or her recent progress at Private School. Although his recommendations might have been appropriate in June 2022, the connection between his recommendations and what services Student might currently need to compensate her for the denial of FAPE is tenuous.
Furthermore, on cross-examination, Psychologist conceded that he had not conducted any ABA assessments of Student as he is not an ABA provider, a licensed behavior analyst or a BCBA (Tr. at 64). While he noted in his testimony and in the neuropsychological evaluation that Student’s neurologist had recommended Student to receive ABA, Psychologist was not aware of what, if any, assessments or observations the neurologist had made that would support the recommendation (Tr. at 64). Psychologist confirmed he recommended 40 hours of ABA per week because ABA is the most researched and datadriven intervention for children with level 3 ASD, not as a result of any ABA assessment or individualized recommendations made by a professional with ABA training or certification (Tr. at 73-75).
While I do not question that Psychologist has been educated on various evidence-based interventions for different disabilities in the course of his work (Tr. at 73), I do find that his recommendation for compensatory ABA services, in contrast to Private School’s BCBA’s individualized assessment of Student, was theoretical and not specifically tailored to Student’s current and actual needs.
As I credit Private School Witness’ testimony that ABA services are not appropriate for Student at Private School, it would be illogical and inappropriate for me to also order 30 hours of compensatory ABA services in school. Student had made progress under Private School’s customized instruction, and this is a case where ABA services in school would not help to compensate Student for the denial of a FAPE. [65]
With respect to Parent’s request for 10 hours per week of compensatory ABA at home, several courts have held that the IDEA does not require school districts as a matter of course to design educational programs to address a student's difficulties in generalizing skills to other environments outside of the school environment, particularly in cases in which it is determined that the student is otherwise likely to make progress in the classroom.[66] While the Second Circuit has not specifically ruled on the issue of a district’s obligations, or lack thereof, under the IDEA to provide for the generalization of skills outside of school as part of an educational program, in considering whether certain home-based services provided for the purpose of generalization should be funded by the district, the Second Circuit has held that "parents are not entitled to reimbursement for services provided in excess of a FAPE." [67]
Psychologist testified that research shows ABA to be the most effective when provided on an “intensive schedule and consistent basis,” and that only a full-time 1:1 ABA program could remediate Student for the lack of progress (Ex. P-M-3). Student “could have a lot of ABA in school…and that would be a very structured environment. But if…that structure is not also brought…home, then we could still see disruptive, repetitive behaviors…and additional challenges in the home environment” (Tr. at 98). Parent also testified that given Student’s full-time school schedule and after-school related services, she planned to fit in 3 hours of at-home ABA therapy on Saturdays (Tr. at 151-154, 160-161). I find that 3 hours of athome ABA therapy per week would not provide the kind of intensive or consistent full-time programming recommended by Psychologist to remediate Student, even if ABA therapy was deemed to be appropriate. Since I already find that ABA services are not appropriate in school and Private School has elected not to provide ABA services during the school day, there is no evidence in the record to justify an award of ABA services at home if the basis for providing such services at home is to reinforce the structured learning environment ABA creates in school. Furthermore, based on the prevailing case law, and on the fact that Parent is contending that Student made progress at Private School, the District is not required to design an educational program for the home environment where Student is making progress in school.
Based on the foregoing, while I find that the District had denied Student a FAPE in the 2022-2023 school year, I do not find ABA therapy to be an appropriate remedy that would compensate Student for the educational services she should have received in the first place.[68] Simply granting ABA therapy without regard to Student’s current needs would be punitive to the Distract and contrary to the purpose of compensatory services – namely, the specific services needed to remedy the specific educational deficits that resulted from the FAPE deprivation.[69] The ultimate award must be connected to Student’s actual needs. Given Student’s progress at Private School and the Private School BCBA’s expert opinion that ABA is not an appropriate course of treatment for Student, providing additional ABA hours without considering the impact of the award on Student’s needs “could ultimately do more harm than good.” [70]
Given the fact that Private School offers ABA as an instructional model and its ongoing assessments to adjust Student’s individualized education plan as necessary, I find that if, at any point going forward, Student’s circumstances change as to require ABA services to receive educational benefits, there is a process to address such a need at Private School and/or at IEP meetings. Indeed, Parent testified that she would be meeting with Private School in September 2023 to discuss Student’s progress and her plan for the school year (Tr. at 155).
For the foregoing reasons, Parent’s request for 40 hours per week of compensatory 1:1 ABA services is denied.
Other than the relief set out in my Order below, I do not find any other basis or evidence in the record supporting any additional relief.
ORDER
Based upon the above Findings of Fact, it is hereby: (1) ORDERED that, Parent’s claim for tuition funding for Student’s unilateral placement at Private School is GRANTED for the 2022-2023 school year as follows: (a) The District shall directly fund the cost of Student’s educational program at Private School for a portion of the 2022-2023 school year in the sum of $51,128.60.00 (Fifty-One Thousand, One Hundred, Twenty-Eight Dollars and Sixty
Cents).
(b) The District shall pay to Private School as described above within thirty (35) days of submission of a signed, notarized bill encompassing tuition costs owed by Parent to Private School for Student’s attendance at Private School for the 2022-2023 school year.
(2) FURTHER ORDERED that, the DOE shall provide special transportation for the 2022-2023 school year, with the following accommodations:
(c) Door-to-door transportation;
(d) Mini lift bus; and
(e) Limited travel time of no longer than 60 minutes each way.
(3) FURTHER ORDERED that, Parent’s request for 40 hours per week of compensatory 1:1 ABA services for the 2022-2023 school year is DENIED.
Dated: August 21, 2023
/s/ Peggy K. Chan
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL
Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act.
If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed.
An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.
APPENDIX A – REDACTION IDENTIFICATION PAGE
REDACTED
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT’S EXHIBITS
P-A. Due Process Complaint March 27, 2023 7 pages
P-B. 10-day Notice March 13, 2023 5 pages
P-C. IEP October 28, 2022 44 pages
P-D. Neuropsychological Evaluation June 2, 2022 12 pages
P-E. Letter from Pediatrician July 27, 2021 1 page
P-F. Request for Medical Accommodations to be Completed by Student’s Physician October 19, 2022 1 page
P-H. Private School Enrollment Contract March 14, 2023 5 pages
P-I. Private School Tuition Affidavit July 11, 2023 1 page
P-J. Private School Progress Report June 2023 6 pages
P-K. Private School Attendance Log June 2023 5 pages
P-L. Affidavit of Private School Witness July 17, 2023 21 pages
P-M. Affidavit of Psychologist IHO’S EXHIBITS IHO-I Order on Motion to Dismiss May 5, 2023 14 IHO-II Order on Pendency July 10, 2023 10 July 17, 2023 4 pages
Footnotes
[4] See 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 (1985).
[5] 20 U.S.C. § 1400 et seq.
[6] 34 C.F.R. § 300 et seq.
[7] Educ. Law Art. 89 § 4404 et seq.
[8] 8 NYCRR § Part 200.
[9] Under the “Recommended Special Education Programs and Services” section of the October 28, 2022 IEP, the CSE recommended a placement of 12:1+(3:1) in a special education classroom (Ex. P-C-34). However, further along in the IEP, Student was recommended to be placed in a “NYSED-Approved Non-Public School – Day.” (Id. at 40, 42). In the “Other Options Considered” section of the IEP, it was indicated that the CSE considered “special class in a specialized school 12:1+(3:1)” but the option was rejected because “it would not meet her needs at this time” (Id. at 43). The record indicates that in the fall of 2019, the District developed a Comparable Service Plan for Student and recommended a 12:1+3:1 special class, but Student was observed to have minimal to no progress since she began this setting (Ex. P-D-4). Since Parent asserts in the DPC that the District failed to implement the October 28, 2022 IEP and offer Student a state-approved nonpublic school placement, and the District had put forth no evidence to dispute this claim, I find that the record shows that the IEP recommended Student to be placed in a state-approved nonpublic school despite the inconsistencies in the IEP.
[10] NYS Educ. Law § 4404(1)(c).
[11] See 20 U.S.C. § 1400 (d)(1)(A).
[12] See 20 U.S.C. § 1401(9).
[13] Board of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982).; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).
[14] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[15] Id. at 1002.
[17] A.P. v. Woodstock Bd. of Ed., 370 Fed. App'x 202, 205 (2d Cir. 2010); Van Duyn v. Baker Sch. Dist., 502 F.3d 811, 822 (9th Cir. 2007); Catalan v. Dist. of Columbia, 478 F. Supp. 2d 73 (D.D.C. 2007).
[18] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[19] See Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112, 115 (2d Cir. 2007); Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998).
[20] Gagliardo, 489 F.3d at 112.
[21] Id. at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006).
[22] Id. at 112.
[23] Frank G. v. Bd. of Educ., 459 F.3d 356, 364 (2d. Cr. 2006).
[24] Gagliardo, 489 F.3d at 115.
[25] Id. at 112, quoting Frank G., 459 F.3d at 364-65.
[26] See Frank G., 459 F.3d at 364-365.
[27] See Gagliardo, supra.
[28] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009)
[29] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[30] 20 U.S.C. § 1412(a)(10)(C)(iii)(I); see 34 CFR 300.148(d)(1).
[31] Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004).
[32] Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267, 272 (1st Cir. 2004); Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 (6th Cir. 2003); Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 (1st Cir. 2002); see Frank G. v. Bd. of Educ., 459 F.3d 356, 376 (2d Cir. 2006); Mc. v. Voluntown Bd. Of Educ., 226 F.3d 60, 68 (2d Cir. 2000); Lauren V. v. Colonial Sch. Dist., 2007 WL 3085854, at * 13 (E.D. Pa. Oct. 22, 2007).
[33] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir. 1997) (internal citation omitted).
[34] Id. at 1375 (internal citations omitted).
[35] Education Law §§ 4401(1), 4402(4)(a); see also Education Law § 4401(2), and 8 NYCRR § 200.1(ww) (emphasis added).
[36] In the DPC, Parent initially asked for compensatory PT, OT, and SLT services, in addition to the ABA therapy (Ex. P-A-5).
[37] See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993).
[38] Boose v District of Columbia, 786 F. 3d 1054, 1056 (D.C. Cir. 2015).
[39] Doe v. East Lyme, 790 F.3d at 454.
[40] E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
[41] P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[42] Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 (2d Cir. 2008).
[43] Doe v. East Lyme, 790 F.3d at 454.
[44] Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005).
[45] See Id. at 522.
[46] See Id. at 518.
[47] See, e.g., M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 23 IDELR 1181 (3d Cir. 1996); Manchester Sch. Dist. v. Christopher B., 807, F. Supp. 860, 19 IDELR 389 (D.N.H. 1992).
[48] See Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005).
[49] 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) (noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated,” and awarding compensatory relief equal to the amount of time the student was deprived of services).
[50] Doe. v. East Lyme, 790 F.3d at 457.
[51] See, e.g. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014), holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.
[52] See, e.g. D.F. v. Collingswood Borough Bd. of Educ., 694 F.3d 488, 498 (3rd Cir. 2012), holding that "[b]ecause compensatory education is at issue only when tuition reimbursement is not, it is implicated only where parents could not afford to 'front' the costs of a child's education"; and P.P. v. West Chester Area Sch. Dist., 585 F.3d 727, 739 (3rd Cir. 2009) holding that "compensatory education is not an available remedy when a student has been unilaterally enrolled in private school."
[53] See Application of a Student with a Disability, Appeal No. 16-050.
[54] See Application of a Student with a Disability, Appeal No. 20-151.
[55] See, e.g., D. W. v. District of Columbia, 561 F. Supp. 2d 56, 61, 50 IDELR 193 (D.D.C. 2008), citing Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, 46 IDELR 66 (D.D.C. 2006) (holding that even though the LEA had placed the student in an appropriate school and revised the IEP, the student may still be entitled to an award of compensatory education). Cf. Wheaten v. Dist. of Columbia, 55 IDELR 12 (D.D.C. 2010), aff'd, 2010 WL 5372181 (D.C. Cir. 2010) (affirming hearing officer's denial of compensatory education because school district subsequent private school placement remedied denial of a FAPE).
[56] Phillips v. District of Columbia, 55 IDELR 101 (D.D.C. 2010), citing Thomas v. District of Columbia, 407 F. Supp. 2d 102,115, 44 IDELR 246 (D.D.C. 2005). See also Gill v. District of Columbia, 55 IDELR 191 (D.D.C. 2010) ("The Court agrees that there may be situations where a student who was denied a FAPE may not be entitled to an award of compensatory education, especially if the services requested, for whatever reason, would not compensate the student for the denial of a FAPE.").
[57] P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008).
[58] See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014), holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE.
[59] See M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017) ("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").
[60] See C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 (3d Cir. Sept. 27, 2010).
[61] See Application of the Bd. of Ed. of the S.C.S.D, Appeal No. 21-065.
[62] Education Law § 4404(1)(c).
[63] See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (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).
[64] See Doe. v. East Lyme, 790 F.3d at 457.
[65] See Phillips v. District of Columbia, 55 IDELR 101 (D.D.C. 2010), citing Thomas v. District of Columbia, 407 F. Supp. 2d 102,115, 44 IDELR 246 (D.D.C. 2005). See also Gill v. District of Columbia, 55 IDELR 191 (D.D.C. 2010).
[66] See, e.g., F.L. v. New York City Dep't of Educ., 2016 WL 3211969, at *11 (S.D.N.Y. June 8, 2016); L.K. v. New York City Dep't of Educ., 2016 WL 899321, at *8-*10 (S.D.N.Y. Mar. 1, 2016), aff'd in part, 674 Fed. App'x 100 (2d Cir. Jan. 19, 2017); P.S. v. New York City Dep't of Educ., 2014 WL 3673603, at *13-*14 (S.D.N.Y. Jul. 24, 2014); M.L. v. New York City Dep't of Educ., 2014 WL 1301957, at *11 (S.D.N.Y. Mar. 31, 2014); see also Thompson R2-J Sch. Dist. v. Luke P., 540 F.3d 1143, 1152-53 (10th Cir. 2008); Gonzalez v. Puerto Rico Dep’t of Educ., 254 F.3d 350, 353 (1st Cir. 2001); Devine v. Indian River County Sch. Bd., 249 F.3d 1289, 1293 (11th Cir. 2001); JSK v. Hendry County Sch. Bd., 941 F.2d 1563, 1573 (11th Cir 1991).
[67] L.K., 674 Fed. App'x at 101.
[68] See Reid v. District of Columbia¸ 401 F.3d at 518 and 525; Doe. v. East Lyme, 790 F.3d at 457.
[69] See id. at 524.
[70] See M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017) ("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").