New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 598172 NYC: 247304

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

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

PETITIONER

against Case # 247304

THE NEW YORK CITY Dustin Johnson, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

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

II. Overview – Administrative Procedures

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

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2],

1 .507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1][3]; 34 CFR 300.512[a][1]-[4]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]).

III. Background and Procedural History

Petitioner is the parent of REDACTED (“Student”). On March 31, 2023, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against the New York City Department of Education (“NYC DOE” or “DOE” or “District”) pursuant to the Individuals with Disabilities Education Act (“IDEA”) (See P-A). On April 5, 2023, the undersigned IHO was appointed to preside over this matter. On May ^[2], 2023, a prehearing conference was held in this matter (See Exhibit IHO-III). On May 31, 2023, an impartial hearing on the merits of the DPC was held and completed the same day. By DPC dated March 31, 2023, the Parent alleged, generally, that the DOE failed to provide the student a free appropriate public education (“FAPE”) for the 2020-2021, 2021-2022 and 2022-2023 school years and was seeking various orders and compensatory services (see P-A).

IV. Findings of Fact

In the Spring of 2022, the NYC DOE conducted various evaluations, observations, and a social history of the Student (see generally P-F; P-H; P-I; P-J; P-K) all succinctly summarized in the Petitioner’s DPC (see generally P-A). On May 5, 2022, the District generated an IEP for the Student and classified the student with a Learning Disability, recommended the Student receive Integrated Co-Teaching Services in ELA and Math, along with related services of Counseling and Occupational Therapy, within a 10-month program (see generally P-L).

Via letter purportedly sent to the DOE on March 30, 2023, the Parent disagreed with the District’s evaluations of this Student and requested comprehensive independent evaluations (PB). In her DPC, filed by Petitioner’s attorney on March 31, 2023, at 6:07 am, Petitioner alleged that “to date, the district has failed to respond to this request” and that the “district failed to authorize the IEEs and did not initiate a hearing to defend its own evaluations” (P-A).

In May 2023, the Student received independent Neuropsychological, Speech/Language, Occupational, Feeding, and Assistive Technology Evaluations (see generally P-P; P-Q; P-R; P-S; P-T). The Neuropsychological Evaluator diagnosed the Student with an Attention Deficit Hyperactivity Disorder, Moderate to Severe; Adjustment Disorder with Mixed Anxiety and Depressed Mood, Moderate; a Specific Reading Disorder with Impairment in Basic Word Reading (Dyslexia), Automaticity, Fluency, and Reading Comprehension, Moderate to Severe; a Mathematics Disorder with Impairments in Calculation, Automaticity, and Math Reasoning, Mild to Moderate; and a Disorder of Written Expression with Impairment in Spelling, Grammar, Punctuation, Fluency, and Automaticity, Moderate to Severe (P-P; P-Y). The Evaluator concluded that the Student requires an appropriate educational program and placement, educational supports, and related services along with intensive remediation services in school and after school, in programs that utilize an appropriate methodology for children with dyslexia, learning disabilities, ADHD, and Anxiety and Depressive Mood (id.).

V. Applicable Standards

Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living; and (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 239 [2009]; Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 [1982]).

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a 3 Findings of Fact and Decision The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]). The Supreme Court has stated that even if it is unreasonable to expect a student to attend a regular education setting and achieve on grade level, the educational program set forth in the student's IEP "must be appropriately ambitious in light of his [or her] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives" (Endrew F., 137 S. Ct. at 1000).

4 Findings of Fact and Decision

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

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

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

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

5 Findings of Fact and Decision

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

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement (Educ. Law § 4404[1][c]; see R.E., 694 F.3d at 184-85).

VI. Additional Findings of Fact and Discussion

A. Statute of Limitations

On April 11, 2023, as an exercise of discretion and to expedite the hearing process by litigating certain issues outside the scope of the hearing on the merits, the undersigned issued an Order to Show Cause directing the Petitioner to show cause why an order should not be entered dismissing all claims related to the 2020-2021 school year for failure to comply with the Statute of Limitations (see IHO Exhibit I). On May 5, 2023, the Petitioner filed a written response objecting to any such finding, indicating the Petitioner’s position regarding the validity of all claims for the 2020-2021 school year, and boldly chided the undersigned for even requesting such a response, alleged impartiality on the part of the undersigned, and dictated an expectation on how the undersigned should comport himself going forward (see IHO Exhibit VI).

The District was provided an opportunity to respond to the Petitioner’s response by no later than May 19, 2023 (see IHO Exhibit I). The District failed to file any written response.

At the May 31, 2023, due process hearing on the merits, the DOE raised an objection on the record by indicating that claims relating to the 2020-2021 school year are barred by the statute of limitations.

Case law requires that any defense on statute of limitations be raised at the initial hearing (see M.G. v. New York City Dep't of Educ., 15 F. Supp. 3d 296, 304, 306 [S.D.N.Y. 2014] [holding that the limitations defense is "subject to the doctrine of waiver if not raised at the initial administrative hearing" and that where a district does "not raise the statute of limitations at the initial due process hearing, the argument has been waived"]; see also R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *4-*6 [S.D.N.Y. Sept. 16, 2011] [noting that the IDEA "requir[es] parties to raise all issues at the lowest administrative level" and holding that a district had not waived the limitations defense by failing to raise it in a response to the due process complaint notice where the district articulated its position prior to the impartial hearing]; 6 Findings of Fact and Decision Vultaggio v. Bd. of Educ., Smithtown Cent. Sch. Dist., 216 F. Supp. 2d 96, 103 [E.D.N.Y. 2002] [noting that "any argument that could be raised in an administrative setting, should be raised in that setting"]).

"By requiring parties to raise all issues at the lowest administrative level, IDEA 'affords full exploration of technical educational issues, furthers development of a complete factual record and promotes judicial efficiency by giving these agencies the first opportunity to correct shortcomings in their educational programs for disabled children.'" (R.B. v. Dep't of Educ. of the City of New York, 2011 WL 4375694, at *6 [S.D.N.Y. Sept. 16, 2011], quoting Hope v. Cortines, 872 F. Supp. 14, 19 [E.D.N.Y. 1995] and Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1303 [9th Cir. 1992]; see C.D. v. Bedford Cent. Sch. Dist., 2011 WL 4914722, at *12 [S.D.N.Y. Sept. 22, 2011]).

Notwithstanding the fact that the District ignored directives to better develop arguments on this issue outside the scope of the hearing on the merits, having raised the issue at the May 31, 2023, due process hearing on the merits, it cannot be concluded that the District in any way waived its affirmative defense to the statute of limitations.

The IDEA requires that, unless a state establishes a different limitations period under state law, a party must request a due process hearing within two years of when the party knew or should have known of the alleged action that forms the basis of the complaint (20 U.S.C. § 1415[f][3][C]; see also 20 U.S.C. § 1415[b][6][B]; Educ. Law § 4404[1][a]; 34 CFR 300.511[e]; 8 NYCRR 200.5[j][1][i]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 114 n.8 [2d Cir. 2008] [noting that the Second Circuit applied the same "knows or has reason to know" standard of IDEA claim accrual both prior to and after codification of the standard by Congress]; M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 [2d Cir. 2003]; G.W. v. Rye City Sch. Dist., 2013 WL 1286154, at *17 [S.D.N.Y. Mar. 29, 2013], aff'd, 554 Fed. App'x 56, 57 [2d Cir Feb. 11, 2014]; R.B. v. Dept. of Educ., 2011 WL 4375694, at *2, *4 [S.D.N.Y. Sept. 16, 2011]; Piazza v. Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 687-88 [S.D.N.Y. 2011]). New York State has affirmatively adopted the two-year period found in the IDEA (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j][1][i]). Determining when a parent knew or should have known of an alleged action "is necessarily a fact-specific inquiry" (K.H. v. New York City Dep't of Educ., 2014 WL 3866430, at *16 [E.D.N.Y. Aug. 6, 2014]).

Exceptions to the timeline to request an impartial hearing apply if a parent was 1) prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice; or

2) the district withheld information from the parent that it was required to provide (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i] R.B., 2011 WL 4375694, at *6).

The "withholding of information" exception to the timeline to request an impartial hearing applies "if the parent was prevented from filing a due process complaint notice due to . . . the [district's] withholding of information from the parent that was required . . . to be provided to the parent (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i]). Case law interpreting the "withholding of information" exception to the 7 Findings of Fact and Decision limitations period has found that the exception almost always applies to the requirement that parents be provided with the written notice of procedural safeguards required under the IDEA (Bd. of Educ. of N. Rockland Cent. School Dist. v. C.M., 744 Fed Appx 7, 11 [2d Cir. Aug. 1, 2018]; R.B., 2011 WL 4375694, at *4, *6; see D.K. v. Abington Sch. Dist., 696 F.3d 233, 246 [3d Cir. 2012]; C.H. v. Northwest Ind. Sch. Dist., 815 F. Supp. 2d 997, 986 [E.D. Tex. 2011]; Tindell v. Evansville Vanderburgh Sch. Corp., 805 F. Supp. 2d 630, 644-45 [S.D. Ind. 2011]; El Paso Indep. Sch. Dist. v. Richard R., 567 F. Supp. 2d 918, 943-45 [W.D. Tex. 2008]; Evan H. v. Unionville-Chadds Ford Sch. Dist., 2008 WL 4791634, at *7 [E.D. Pa. Nov. 4, 2008]). Such safeguards include the requirement to provide parents with prior written notices and procedural safeguards notices containing, among other things, information about requesting an impartial hearing (see 20 U.S.C. § 1415[b][3]; [d]; 34 CFR 300.503; 300.504; 8 NYCRR 200.5[a], [f]). Under the IDEA and federal and State regulations, a district must provide parents with a copy of a procedural safeguards notice annually (20 U.S.C. § 1415[d][1][A]; 34 CFR 300.504[a]; ^[8] NYCRR 200.5[f][3]). However, if a parent is otherwise aware of his or her procedural due process rights, the district's failure to provide the procedural safeguards notice will not necessarily prevent the parent from requesting an impartial hearing (see D.K., 696 F.3d at 246-47; R.B., 2011 WL 4375694, at *7; Richard R., 567 F. Supp. 2d at 944-45). Furthermore, the regulations of the Commissioner of Education allow a district to place a copy of the procedural safeguards notice on its website if such website exists (see 20 USC 1415[d][1][B]; 8 NYCRR 200.5[f][4]) (see also Application of a Student Suspected of Having a Disability, Appeal No. 22-105).

In this matter, other than passively uttering an objection on the record, the District here offered no cogent argument as to why the District was lodging such an objection and provided no argument or response to anything contained within the Petitioner’s detailed response. As further discussed below, the District offered no documentary evidence and offered no witnesses to advance any position or defense on this issue.

Notwithstanding the District’s objection, I find that the claims related to the 2020-2021 school year are ripe for adjudication and I adopt much of the reasoning contained within Petitioner’s well-reasoned and spirited response (see IHO Exhibit VI).

Briefly, and as further discussed below, the Parent persuasively argues within her response to the motion to dismiss, and the record herein reflects, that there are genuine issues regarding Child Find violations, the District’s refusal to timely evaluate this student or provide the Parent with any procedural safeguards when the Parent initially indicated concerns regarding the Student’s lack of progress.

Based on that and as articulated within the Parent’s response, all claims related to the denial of a Free Appropriate Public Education for the 2020-2021 school year, as well as the 2021-2022, and 2022-2023 school years, are properly plead, subject to review, and will be evaluated herein. As such, the District’s objection is overruled.

B. FAPE

At the May 31, 2023, hearing on the merits, the District indicated that it was not putting on a “Prong 1” case and was effectively conceding that it failed to offer this Student a FAPE for the 2021-2022 and 2022-2023 school years. As noted above, the District objected to the 2020-2021 school year as being outside the scope of the statute of limitations, and such objection was overruled. The District rested its case without calling any witnesses and without entering any documentary evidence.

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

In the March 31, 2023, DPC, the Parent outlines a litany of reasons why the District failed to provide this Student with a FAPE (P-A). Here, the DOE failed to offer any testimony or evidence to explain any of the reasoning behind any of its recommendations, actions, or inactions. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1002 (2017).

I find that based on the record before me, and in light of the District’s concessions, the District here failed to sustain its burden and therefore denied this Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.

C. Child Find

The purpose of the "child find" provisions of the IDEA are to identify, locate, and evaluate students who are suspected of being a student with a disability and thereby may be in need of special education and related services, but for whom no determination of eligibility as a student with a disability has been made (see Handberry v. Thompson, 446 F.3d 335, 347-48 [2d Cir. 2006]; E.T. v. Bd. of Educ. of Pine Bush Cent. Sch. Dist., 2012 WL 5936537, at *11 [S.D.N.Y. Nov. 26, 2012]; A.P. v. Woodstock Bd. of Educ., 572 F. Supp. 2d 221, 225 [D. Conn. 2008], aff'd, 370 Fed. App'x 202 [2d Cir. Mar. 23, 2010]; see also 20 U.S.C. § 1412[a][3][A]; 34 CFR 300.111; 8 NYCRR 200.2[a][1], [7]). The IDEA places an affirmative duty on State and local educational agencies to identify, locate, and evaluate all children with disabilities residing in the State "to ensure that they receive needed special education services" (20 U.S.C. § 1412[a][3]; 34 CFR 300.111[a][1][i]; Forest Grove, 557 U.S. at 245; K.B. v. Katonah Lewisboro Union Free Sch. Dist., 2019 WL 5553292, at *7 [S.D.N.Y. Oct. 28, 2019]; E.T., 2012 WL 5936537, at *11; see 20 U.S.C. § 1412[a][10][A][ii]; see also 8 NYCRR 200.2[a][1], [7]; New Paltz Cent. Sch. Dist. v. St. Pierre, 307 F. Supp. 2d 394, 400 n.13 [N.D.N.Y. 2004]). The "child find" requirements apply to "children who are suspected of being a child with a disability . . . and in need of special education, even though they are advancing from grade to grade" (34 CFR 300.111[c][1]; see 8 NYCRR 200.2[a][1], [7]; D.K. v. Abington Sch. Dist., 696 F.3d 233, 249

9 Findings of Fact and Decision [3d Cir. 2012]; J.S. v. Scarsdale Union Free Sch. Dist., 826 F. Supp. 2d 635, 660 [S.D.N.Y. Nov. 18, 2011]). To satisfy the requirements, a board of education must have procedures in place that will enable it to identify, locate, and evaluate such children (34 CFR 300.111[a][1]; 8 NYCRR 200.2[a][1], [7]).

Because the child find obligation is an affirmative one, the IDEA does not require parents to request that the district evaluate their child (see Reid v. Dist. of Columbia, 401 F.3d 516, 518 [D.C. Cir. 2005] [noting that "[s]chool districts may not ignore disabled students' needs, nor may they await parental demands before providing special instruction"]; see also Application of the Bd. of Educ., Appeal No. 11-153; Application of a Student Suspected of Having a Disability, Appeal Nos. 11-092 & 11-094). A district's child find duty is triggered when there is "reason to suspect a disability and reason to suspect that special education services may be needed to address that disability" (J.S., 826 F. Supp. 2d at 660; New Paltz Cent. Sch. Dist., 307 F. Supp. 2d at 400 n.13, quoting Dep't of Educ., State of Hawaii v. Cari Rae S., 158 F. Supp. 2d 1190, 1194 [D. Haw. 2001]). To support a finding that a child find violation has occurred, school officials must have "overlooked clear signs of disability" and been "negligent in failing to order testing," or have "no rational justification for deciding not to evaluate" the student (Mr. P v. W. Hartford Bd. of Educ., 885 F.3d 735, 750 [2d Cir. 2018], quoting Bd. of Educ. of Fayette County, Ky. v. L.M., 478 F.3d 307, 313 [6th Cir. 2007]; see A.P., 572 F. Supp. 2d at 225). States are encouraged to develop "effective teaching strategies and positive behavioral interventions to prevent overidentification and to assist students without an automatic default to special education" (Los Angeles Unified Sch. Dist. v. D.L., 548 F. Supp. 2d 815, 819 [C.D. Cal. 2008], citing 20 U.S.C. § 1400[c][5]). Additionally, a school district must initiate a referral and promptly request parental consent to evaluate a student to determine if the student needs special education services and programs if a student has not made adequate progress after an appropriate period of time when provided instruction in a school district's response to intervention program (8 NYCRR 200.4[a]), see also 8 NYCRR 100.2[ii]).

Here, the hearing record contains unrebutted evidence that the student exhibited signs of a disability when he began kindergarten in the 2020-2021 school year and continued to have difficulty in first grade during the 2021-2022 school year (see generally P-Z). The hearing record also contains unrebutted evidence that the parent did not first learn about the process for an evaluation until January 2022 (P-Z-2). The record also supports the conclusion that the DOE did not evaluate this Student and develop an IEP until Spring 2022 (see generally P-H; P-I; P-J; P-K; and P-L)

Districts are responsible for locating, identifying, and evaluating all children with disabilities who are enrolled by their parents in private, including religious, elementary schools located in the district's jurisdiction (Doe v. Metropolitan Nashville Pub. Schs., 34 IDELR 256 (6th Cir. 2001, unpublished); Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schs., 80 IDELR 197 (OSERS 2022); and Letter to Wayne, 73 IDELR 263 (OSEP 2019)). The district where the private school is located is responsible for conducting child find for parentally placed private school children (Questions and Answers on Serving Children with Disabilities Placed by Their Parents in Private Schs., 80 IDELR 197 (OSERS 2022). The IDEA requires LEAs to evaluate parentally placed private school students who attend schools within their borders and determine whether those students are entitled to 10 Findings of Fact and Decision equitable services (34 CFR 300.111 (a)(1)). Moreover, the home district must make FAPE available to all students who live within its borders. Thus, if a parent asks the home district to evaluate a student's eligibility for IDEA services, the district cannot refuse to do so on the grounds that the student attends private school in another LEA (Letter to Eig, 52 IDELR 136 (OSEP 2009)).

Thus, the evidence in the hearing record supports the conclusion that the DOE ignored signs of a disability and had reason to suspect that the Student had a disability and required special education to address that disability while he attended private school.

I note that even if the District had reason to suspect a disability at some point prior to the student's referral by the Parent, the remedy for such a child find violation would typically be an order for the Student to be evaluated, which has already largely occurred in this matter (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]).

Nevertheless, for the reasons indicated above and contained within the record, I find that the District violated its Child Find obligations.

D. IEE

Via letter purportedly sent on March 30, 2023, the Parent disagreed with the District’s evaluations of this Student and requested comprehensive independent evaluations (P-B). On cross examination, the Parent testified that her attorney’s provided the March 30, 2023, letter to the District, although the Parent could not state with any assuredness when or if any purported letter was actually delivered to the District. In her March 31, 2023, DPC, filed by Petitioner’s attorney on March 31, 2023, at 6:07 am, Petitioner then shamelessly alleged that “to date, the district has failed to respond to this request” and that the “district failed to authorize the IEEs and did not initiate a hearing to defend its own evaluations” (P-A).

Such regrettable tactics on the part of the Petitioner, or likely her counsel, not only reek of disingenuousness, but they circumvent the process intended by congress and prevent a good faith attempt to resolve disputes outside a juridical forum, as occurred here.

In past decisions, SROs have held that a parent may request a district funded IEE in a due process complaint notice in the first instance (see Application of a Student with a Disability, Appeal No. 19-094). This is not exactly the process contemplated by the IDEA and its implementing regulations (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]), and, in most instances it is likely that a parent would be in a better position to elicit an agreement from the district to fund an IEE if the IEE was requested outside of the more formal context of an impartial hearing. The practice of a parental "due process compliant IEE request" is increasing in frequency and I am not convinced it is permissible for a parent to commence an impartial hearing to seek an IEE at public expense and/or communicate their disagreement with a district evaluation for the first time therein (see Application of a Student Suspected of Having a Disability, Appeal No. 22-105).

11 Findings of Fact and Decision While the Petitioner here argues that the request for IEEs came prior to the submission of the DPC, if merely hours before, any such laughable argument is disingenuous at best.

Via email dated April 21, 2023, Petitioner’s counsel provided information to the undersigned that the District “has agreed to authorize at full payment [] the speech/language, occupational, assistive technology, and feeding evaluations” and Petitioner subsequently withdrew her request for those evaluations. Instead of crying foul and alleging impropriety where, as here, the District “failed” to respond to a request made the day before a due process complaint was filed at 6:07am, it would behoove practitioners to abide by the spirit of good faith attempts at resolution prior to immediately resorting to litigation.

Nevertheless, the IDEA provides parents with a number of procedural safeguards. Among them is the "right . . . to obtain an independent educational evaluation of the child," which in turn means "an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for the education of the child in question" (34 CFR 300.502[a][1], [3][i]; see 8 NYCRR 200.1[z]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense that was sought for additional information]). Guidance from the United States Department of Education's Office of Special Education Programs (OSEP) indicates that if a parent disagrees with an evaluation because a child was not assessed in a particular area, "the parent has the right to request an IEE to assess the child in that area to determine whether the child has a disability and the nature and extent of the special education and related services that child needs" (Letter to Baus, 65 IDELR 81 [OSEP 2015]; see Letter to Carroll, 68 IDELR 279 [OSEP 2016]).

The IDEA and state and federal regulations guarantee parents the right to obtain an Independent Educational Evaluation (“IEE”) (see 20 U.S.C. § 1415[b][1]; 34 CFR 300.502; 8 NYCRR 200.5[g]), which is defined by State regulation as "an individual evaluation of a student with a disability or a student thought to have a disability, conducted by a qualified examiner who is not employed by the public agency responsible for the education of the student" (8 NYCRR 200.1[z]; see 34 CFR 300.502[a][3][i]). Parents have the right to have an IEE conducted at public expense if the parent expresses disagreement with an evaluation conducted by the district and requests that an IEE be conducted at public expense (34 CFR 300.502[b]; 8 NYCRR 200.5[g][1]; see K.B. v Pearl Riv. Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012] [noting that "a prerequisite for an IEE is a disagreement with a specific evaluation conducted by the district"]; R.L. v. Plainville Bd. of Educ., 363 F. Supp. 2d. 222, 234-35 [D. Conn. 2005] [finding parental failure to disagree with an evaluation obtained by a public agency defeated a parent's claim for an IEE at public expense]).

If a parent requests an IEE at public expense, the school district must, without unnecessary delay, either (1) ensure that an IEE is provided at public expense; or (2) initiate an

12 Findings of Fact and Decision impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria (34 CFR 300.502[b][2][i]-[ii]; 8 NYCRR 200.5[g][1][iv). If a school district's evaluation is determined to be appropriate by an IHO, the parent may still obtain an IEE, although not at public expense (34 CFR 300.502[b][3]; 8 NYCRR 200.5[g][1][v]). Additionally, both federal and state regulations provide that "[a] parent is entitled to only one [IEE] at public expense each time the public agency conducts an evaluation with which the parent disagrees" (34 CFR 300.502[b][5]; 8 NYCRR 200.5[g][1]). The Second Circuit Court of Appeals has recently found that, if a district and a parent agree that a student should be evaluated before the required triennial evaluation, "the parent must disagree with any given evaluation before the child's next regularly scheduled evaluation occurs" or "[o]therwise, the parent's disagreement will be rendered irrelevant by the subsequent evaluation" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 170 [2d Cir. 2020]).

Here, notwithstanding the disingenuous tactics of the Petitioner, the District indeed became aware of a disagreement with its previously conducted evaluations by at least March 31, 2023, when the instant DPC was filed, and was aware of the Parent’s desire to have independent evaluations conducted at District expense, as is the Parent’s legal right to request. The District could have easily defended the numerous evaluations the District conducted in the Spring of 2022 and could have objected to the independent evaluations requested by the Parent on various grounds. Alas, the District remained mute during these proceedings and failed to offer any testimony or evidence on this issue. Why the District would authorize some evaluations and fail to authorize others, then fail to defend such a position during litigation, is a mystery that only the heavens know the answer to. For these reasons, I find the Parent is entitled to those Independent Educational Evaluations not otherwise mutually agreed to between the Parent and District at the rate requested by the Parent.

Additionally, the Second Circuit Court of Appeals has held that a direct payment remedy is an appropriate form of relief in some circumstances, and that "[i]ndeed, where the equities call for it, direct payment fits comfortably within the Burlington–Carter framework" (E.M. v. New York City Dep't of Educ., 758 F.3d 442, 453 [2d Cir. 2014]; see also Mr. and Mrs. A. v. New York City Dep't of Educ.,769 F. Supp. 2d 403, 430 [S.D.N.Y. 2011] [finding it appropriate to order a school district to make retroactive tuition payment directly to a private school where equitable considerations favor an award of the costs of private school tuition but the parents, although legally obligated to make tuition payments, have not done so due to a lack of financial resources]).

The record here reflects testimony from the Parent of her understanding of a legal obligation to pay for certain previously obtained Independent Educational Evaluations, as well as testimony from the Parent of an inability to pay for these evaluations, the two prongs necessary to legally qualify for a direct payment remedy (see Tr. at pg. 73-74). As such, the District will be ordered to directly pay for the completed evaluations and those that are yet to be completed.

E. Prospective Placement

In her DPC, the Parent demands that “the IHO shall order an appropriate approved non-public school placement” and further commands that the Hearing Officer “will order the district

13 Findings of Fact and Decision to cause for an FBA and BIP to be created…” (P-A). I respectfully decline to abide by the Parent’s stern dictates.

Initially, an award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]).

While prospective placement might be appropriate in rare cases (see Connors v. Mills, 34 F.Supp.2d 795, 799, 804-06 [N.D.N.Y. Sept. 24, 1998] [noting a prospective placement would be appropriate where "both the school and the parent agree[d] that the child's unique needs require[d] placement in a private non-approved school and that there [we]re no approved schools that would be appropriate"]), the pitfalls of awarding a prospective placement have been noted in multiple State-level administrative review decisions, including that where a prospective placement is obtained by the parents through the impartial hearing, such relief could be treated as an election of remedies, where the parents assume the risk that future unforeseen events could cause the relief to be undesirable (see, e.g., Application of a Student with a Disability, Appeal No. 19-018). The parent cannot then return to due process and fault the district for providing the very remedy sought by the parent and ordered by the IHO.

In light of the numerous comprehensive independent educational evaluations recently obtained by the Parent after the development of the most recent IEP for this Student, which the District’s CSE may not have been provided or yet been able to review, I find that the directives of IDEA would be best effectuated by ordering the CSE to reconvene and consider the newly obtained evaluations and make any recommendations they deem necessary and appropriate.

F. Compensatory Services

The crux of the Parent’s request, as evidenced by the proofs submitted and the testimony offered by the Parent’s witnesses, is for a large bank of compensatory service hours (see P-U-3). Petitioner is seeking, among other things, an award of 1,104 hours of cleverly titled Compensatory Intensive and Individualized Academic Remediation (“IIAR”) services to be provided by a provider of the Parent’s choosing at an enhanced market rate, as well as numerous hours of various related service at enhanced rates (see P-U; P-V).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014];

14 Findings of Fact and Decision Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]). Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address [the problems with the IEP"]; see also Draper

v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

Here, as discussed above, the District conceded, and was alternatively found to have failed to meet its burden to prove, that it offered the Student a FAPE for the 2020-2021, 2021-2022 and 2022-2023 school years. To be sure, the District was required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE (Educ. Law § 4404[1][c]; see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *4 [S.D.N.Y. Mar. 30, 2017] [noting the SRO's finding that the district had the burden of proof on the issue of compensatory education]; see also E. Lyme, 790 F.3d at 457; Reid, 401 F.3d at 524). Where, as here, New York State law has placed the burden of production and persuasion at an impartial hearing on the District, it is not an IHO's responsibility to craft the District's position regarding the appropriate compensatory education remedy.

However, an outright default judgment awarding compensatory education—or as in this case, any and all of the relief requested without question—is a disfavored outcome even where the District's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] [rejecting "lump sum" grant of tutoring as a compensatory remedy for a multi-year denial of FAPE]). Indeed, an award ordered so blindly could ultimately do more harm than good for a student (see M.M., 2017 WL 1194685, at *8 ["Common sense and experience teaches that services that may be valuable for, or even critical to, a child's educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity"]). Moreover, if the sum and total of the compensatory education relief requested by the parent was ordered, including the monetization thereof, it would amount to a punitive award (see C.W. v Rose Tree Media Sch. Dist., 395 Fed.

15 Findings of Fact and Decision App'x 824, 828 [3d Cir. Sept. 27, 2010] [noting that "[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education."]).

The source of the Parent's request for a large bank of compensatory services is a May 22, 2023, compensatory services plan and testimony by affidavit, which summarized various assessments that had been conducted at the direct request of the Parent’s attorney by Exceptional Learners Services (“ELS”), an organization that was also conveniently and curiously endorsed directly by the “independent” Neuropsychological Evaluator (P-U; P-V; P-W; P-Y).

The Director of ELS recommended the Student receive 1:1 instruction in ELA and Math (P-V-2). The Director of ELS also testified that the Director was aware that the Student had received group counseling for the 2022-2023 school year (see Tr. at pg. 43). 1 The Director of ELS testified that neither she nor her staff reviewer had ever met with the Student or spoken to the Student’s current counselor prior to formulating the recommendations for the number of hours proposed (see Tr. at pg. 43). The Director of ELS further testified that she did not personally conduct any of the assessments or evaluations for this Student, speak with any of the Student’s teachers, or observe the Student in class prior to formulating her recommendations (see Tr. at pg. 44). The Director additionally testified that ELS is in the habit of purchasing video game credits and Amazon Gift Cards for its students (Tr. at pg. 55; 57).

Ultimately the Director of ELS concluded the Student requires 1,104 hours of IIAR (calculated under the formula of 8 hours weekly, for 46 weeks, for 3 years) and 138 hours of Counseling (based on a formula of 1 hour a week for 46 weeks, for 3 years), among other related services (P-U; P-V).

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

Based on the above, I find that the totality of the evidence in the hearing record, including the District's concessions and failure to sustain its burden of proof, supports a finding that the Student here is entitled to compensatory education to remedy the District's denial of a FAPE during the school years at issue. However, I do not entirely accept the ELS Director's opinion on 1 As such, any award of compensatory counseling will be reduced in light of the services the Student already received during the 2022-2023 school year.

16 Findings of Fact and Decision the number of hours the Student should receive for compensatory education, nor her calculation for how such hours should be tallied. 2 I find that since the District failed to provide the Student with a FAPE for three school years, any award of compensatory education shall be limited to three school years’ worth of compensatory education. I further find that it would be appropriate for the awarded compensatory education to be used within a three-year period from the date of this decision, which will give the Student sufficient flexibility.

Finally, while the Neuropsychologist and the Director of ELS testified that ELS could provide the Student with the recommended remedial compensatory services, there is nothing in the Director’s testimony or the hearing record indicating that the District itself cannot provide the intensive and individualized academic remediation recommended, especially considering the instruction should support the Student’s in-school academics, which is a core function of the District (see Application of a Student with a Disability, Appeal No. 21-218). Here, both the Director of ELS as well as an Independent Contractor of ELS testified that any qualified provider could provide the services recommended for this Student and that the recommendations were based on the Student’s needs “no matter who’s carrying out his plan of care” and not specific to any recommended agency (see Tr. at pg. 38). As such, the District will be directed to deliver special education and related services to the Student consistent with the findings set forth herein.

While an expensive private tutoring facility may be desirable to the Parent, and any Student would surely enjoy receiving free Amazon Gift Cards and video game credits, it’s worth remembering that the IDEA statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379).

VII. Conclusion

Based on the record before me, I find that the District has denied this Student a Free Appropriate Public Education for the 2020-2021, 2021-2022, and 2022-2023 school years.

I have considered the parties' arguments and find that the hearing record supports an order that the District provide this Student with 1,008 hours of 1:1 instruction by a certified special education teacher (calculated under the formula of 8 hours a week for 42 weeks for 3 years) as compensatory education services, to be utilized within three years.

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

17 Findings of Fact and Decision Feeding Therapy. The District shall be ordered to provide the Student compensatory related services to be utilized within three years for the following number of hours:

84 hours of Counseling (based on a formula of 1 hour a week for 42 weeks for 2 years); 126 hours of Occupational Therapy (1.5 hours a week for 42 weeks for 2 years); 168 hours of Speech/Language Therapy (2 hours a week for 42 weeks for 2 years); 42 hours of Assistive Technology instruction (1 hour a week for 42 weeks); 42 hours of Parent Assistive Technology instruction (1 hour a week for 42 weeks); 126 hours of Sensory Feeding Therapy (1.5 hours a week for 42 weeks for 2 years).

I further find the hearing record supports an award of Independent Educational Evaluations, as well as an order directing the District to reconvene the CSE to develop an appropriate educational program for the Student going forward.

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

VIII. Orders

IT IS HEREBY ORDERED that the District shall provide the Student with 1,008 hours of 1:1 instruction by a certified special education teacher of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree, as well as the following related services: 84 hours of Counseling Services; 126 hours of Occupational Therapy; 168 hours of Speech/Language Therapy; 42 hours of Assistive Technology instruction; 42 hours of Parent Assistive Technology instruction; and 126 hours of Sensory Feeding Therapy. The related services provider shall also be of the District’s own choosing, which may be a District employee, unless the parties shall otherwise agree; and IT IS FURTHER ORDERED that the 1:1 instruction and related services awarded above shall expire three years from the date of this decision if the Student has not used them by such date; and IT IS FURTHER ORDERED that the District is to directly pay for the following Independent Educational Evaluations at the indicated rates: the previously obtained independent Neuropsychological Evaluation in the amount of $6,500.00; a Central Auditory evaluation at a rate not to exceed $2,800.00; and a Sensory Integration evaluation at a rate not to exceed $2,000.00.

IT IS FURTHER ORDERED that the District is directed to reconvene the CSE to review all currently available evaluations and to develop an appropriate educational program for the Student for the 2023-2024 school year.

DATED: SO ORDERED

18 /12/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

NOTICE OF RIGHT TO APPEAL

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

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

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

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

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

DATED: CERTIFIED BY

6/12/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

Footnotes

[2] Findings of Fact and Decision FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

[8] Findings of Fact and Decision Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District failed to offer the student a FAPE as required by Federal and State law for the 2020-2021, 2021-2022, and 2022-2023 school years.