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CASE NUMBER: 598251 - NYC: 247346
FINDINGS OF FACT AND DECISION
Student’s Name: [REDACTED] (“Student”)
Date of Birth: [REDACTED]
School District: [REDACTED]
Hearing Requested by: [REDACTED] (“Parent”)
Request Date/Date Complaint Filed: April 5, 2023
Date(s) of Hearing: June 13, 2013
June 23, 2023
July 11, 2023 Actual Record Closed Date: August 4, 2023
Date of Decision: August 18, 2023 Time Sensitive Yes Hearing Officer: Robin Levin, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 13, 2023
For the Student:
[REDACTED] (“Parent’s Attorney”)
[REDACTED] (“Mother” or “Parent”)
[REDACTED] (“Vice President of Educational Programs at [REDACTED]”)
For the Department of Education:
[REDACTED] (“DOE Attorney”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JUNE 23, 2023
For the Student:
[REDACTED] (“Parent’s Attorney”)
[REDACTED] Mother” or “Parent”)
[REDACTED] “Director of Preschool and Non-Contracted Services at [REDACTED]”)
For the Department of Education:
[REDACTED]. (“DOE Attorney”)
NAMES AND TITLES OF PERSONS WHO APPEARED
JULY 11, 2023
For the Student:
[REDACTED] (“Parent’s Attorney”)
For the Department of Education:
[REDACTED] (“DOE Attorney”)
INTRODUCTION
This is a decision rendered after a due process hearing (“DPH” or “hearing”) pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1400 et seq., and its implementing regulations, 34 C.F.R. §300 et seq., and the New York State Education Law, Educ. Law Article 89 §4404 et seq., and its implementing regulations, 8 NYCRR §200.5 et seq.[1] This case concerns Student, a [REDACTED]-year-old, who is classified by the New York City Department of Education (“DOE” or “District”) as a student with Autism.[2] On April 5, 2023, the Parent, through her attorney, filed a Due Process Complaint (“DPC”) against the DOE.[3] In the DPC, the Parent alleged that the DOE failed to offer the Student a Free Appropriate Public Education (“FAPE”) for the 2020-2021, 2021-2022, and 2022-2023 school year. [4]
Primarily, the Parent alleged that the Committee on Preschool Education (“CPSE”) never evaluated the Student and never convened to create an Individualized Education Program (“IEP”) for the Student for the 2020-2021 and 2021-2022 school years.[5] In addition, the Parent alleged that the Student began Kindergarten in a general education classroom at the Public School and was not evaluated nor provided with an IEP prior to the start of the 2022-2023 school year.[6] Furthermore, the Parent alleged that the Committee on Special Education (“CSE”) did not convene nor commence evaluations of the Student until October and November of 2022, and ultimately, the CSE convened on November 18, 2022 to develop an IEP for the Student for the remainder of the 2022-2023 school year.[7] The CSE recommended a District 75 6:1+1 program, and the Parent spoke with three proposed public school placements.[8] The Parent disagreed with the program and alleged the first proposed public school placement would not allow her to tour the school, and the second and third proposed public school placements did not have room for the Student.[9] Therefore, on April 26, 2023, the Parent unilaterally placed the Student in a private school (“Private School”) for the remainder of the 2022-2023 school year.[10] The Parent argues that the Private School is an appropriate placement for the Student. [11]
By way of relief, the Parent seeks an award of direct tuition funding for the Student’s attendance at the Private School for the period of time he attended the Private School during the 2022-2023 school year, as well as door-to-door transportation.[12] The Parent alleged that the equities support her claim for direct tuition funding for the period of time the Student attended the Private School during the 2022-2023 school year. 13 In addition, the Parent seeks an award of compensatory services, and an order directing the DOE to fund an independent neuropsychological evaluation, a speech-language therapy (“SLT”) evaluation, an occupational therapy (“OT") evaluation, and a physical therapy (“PT”) evaluation by providers of the Parent’s choosing at market rate. 14
As discussed below, I find that the DOE denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. I find that the Private School offered the Student specially designed instruction sufficient to meet the Student’s needs, and the equities support the Parent’s request for direct payment of the tuition to the Private School for the period of time the Student attended the Private School during the 2022-2023 school year. In addition, I find that the Student is entitled to compensatory services, and independent neuropsychological, SLT, OT, and PT evaluations by providers of the Parent’s choosing at market rate funded by the DOE.
PROCEDURAL HISTORY
On April 7, 2023, I was appointed as the Impartial Hearing Officer (“IHO”). On May 17, 2023, the parties appeared virtually for a pre-hearing conference (“PHC”). 15 At the PHC, the parties and I discussed the issues and remedies sought in the DPC and parameters for the hearing, and the first hearing date was scheduled for June 13, 2023. 16 On May 30, 2023, the DOE Attorney filed a Notice of Appearance (“NOA”), notifying me and Parent’s Attorney that he would be representing the District at the hearing. 17
A virtual DPH was held on June 13, 2023, June 23, 2023, and July 11, 2023. 18 It was a closed hearing. On June 13, 2023, the Student’s mother was present (“Parent”) and represented by Parent’s Attorney. The DOE Attorney was also present. The DOE Attorney did not seek to admit any documentary evidence into the hearing record, call any witnesses at the hearing, or make an opening statement. 19 The Parent’s Attorney entered 32 exhibits into the hearing record without objection, including affidavit testimony from the Private Psychologist and from the Director of Potential Service Provider. 20 The Parent’s Attorney called two additional witnesses to testify live, the Vice President of Educational Programs at the Private School and the Parent. 21 The DOE Attorney cross-examined the Vice President of Educational Programs at the Private School and the Parent. 22 The DOE Attorney did not wish to cross-examine the Private Psychologist, but he
13 Id. 14 Ex. A-6. 15 A different agency attorney for the DOE appeared at the PHC. 16 PHC 5/17/2023 Tr. 17 See DOE NOA 5/30/2023. 18 See DPH 6/13/2023 Tr.; DPH 6/23/2023 Tr.; DPH 7/11/2023 Tr. 19 DPH 6/13/2023 Tr. 6, 10. 20 A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision. 21 DPH 6/13/2023 Tr. 17-52, 67-72. 22 DPH 6/13/2023 Tr. 53-64, 72-95. did wish to cross-examine the Director of Potential Service Provider. 23 However, the Director of Potential Service Provider was unavailable and the parties made a joint request to extend the compliance date due to witness availability.[24] I granted the request and adjourned the hearing to June 23, 2023. [25]
On June [23], 2023, the DPH continued. The Parent was present and represented by the Parent’s Attorney.[26] The DOE Attorney was also present. The DOE Attorney cross-examined the Director of Potential Service Provider.[27] The Parent rested, and the DOE Attorney requested additional time to either submit a subpoena to obtain documents related to the service provider’s contracts with the DOE or to obtain the documents internally.[28] I granted the DOE Attorney’s request over the objection of the Parent’s Attorney and set a deadline of June 30, 2023 for either the submission of a subpoena or for disclosure of any exhibits the DOE wished to be admitted into the hearing record.[29] The hearing was adjourned to July 11, 2023.
On July 11, 2023, the DPH continued. The DOE Attorney confirmed that he did not submit a subpoena or any exhibits.[30] The parties confirmed their desire to submit closing briefs in this matter, and I granted a joint application to extend the compliance date for closing briefs to be submitted.[31] The record was closed on August 4, 2023.
In the closing brief, the DOE took the position that the Parent’s request for relief should be denied in its entirety.[32] The DOE argued that although the DOE did not defend its Prong 1 burden by presenting documentary evidence and/or witness testimony, there is insufficient evidence to support an award of compensatory services.[33] In addition, the DOE argued that the Parent failed to meet her burden in showing the appropriateness of the unilateral placement at the Private School.[34] The DOE also argued that the Student is not entitled to independent educational evaluations because the Parent did not show that she disagreed with the DOE’s evaluations and there is no basis in the hearing record for the undersigned to exercise discretionary authority to order independent educational evaluations. [35]
In the Parent’s closing brief, the Parent took the position that the DOE denied the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.[36] The Parent argued that the unilateral placement at the Private School was appropriate for the Student, and that the equities support an award of direct tuition funding.[37] In addition, the Parent argued that the DOE must be directed to fund independent educational evaluations because the evidence shows the Parent did disagree with the DOE’s evaluations of the Student both in the Ten-Day Notice/DPC and at the November 18, 2022 IEP meeting, and the DOE never initiated a due process proceeding to defend its evaluations.[38] Furthermore, the Parent also argued that the evidence in the hearing record supports an award of compensatory services, and although the DOE failed to provide the Student a FAPE for three school years, the Parent was only seeking compensatory services either as a quantitative measure, from the date of the Student’s November 18, 2022 IEP to April 25, 2023, the Student’s last day at the Public School, or as a qualitative measure, based on the recommendations of any independent neuropsychological, SLT, OT, or PT evaluations ordered by the undersigned within this decision. [39]
FINDINGS OF FACT
After a full review of the hearing record, I make the following findings of fact and determinations. Overall, I find all exhibits admitted into the hearing record to be relevant and representative of the facts for which they were offered. As for the witnesses, I find no reason to doubt the veracity of their testimonies and therefore, I find all the witnesses credible. I base the following on the record generated at the hearing.
The Student is currently [REDACTED] years old and is a sweet, caring, and affectionate child.[40] The Student likes to listen to classical music and loves art, basketball, planes, and chocolate chip cookies.[41] As of November 18, 2022, the Student has been identified as a student with a disability by the DOE’s CSE and given the classification of Autism since he was diagnosed with Autism Spectrum Disorder.[42] The Student’s disability impacted his early development since he first presented with speech delays when he was approximately one year old.[43] The Student was evaluated for early intervention services and was recommended to receive two hours per day of SLT.[44] However, due to the COVID-19 pandemic, the Student did not receive all of his mandated SLT services through early intervention, and once the Student turned three years old, he was not referred to or evaluated by the DOE’s CPSE.[45] The Student did not receive any services nor did he attend any preschool program during the 2020-2021 and 2021-2022 school years. [46]
For the 2022-2023 school year, the Student began kindergarten at the Public School in a general education classroom.[47] Shortly thereafter, the Parent requested that the Student be evaluated as she was concerned that the Student was in need of special education services.[48] The Parent requested for the Student to be evaluated because the Student demonstrated delays in his speech and language skills as he does not speak in full sentences and only uses one or two words to communicate, often repeating what he hears.[49] In addition, the Student “has a hard time adjusting to a new environment especially if there are big crowds and lots of noises.”[50] Furthermore, the Student engages in temper tantrums including throwing himself on the floor and crying and becomes frustrated as he is unable to verbally communicate with others. [51]
The DOE conducted a Social History Evaluation, a Psychoeducational Evaluation, an OT Evaluation, and a Speech-Language Evaluation. First, on October 4, 2022, the DOE conducted a Social History Evaluation.[52] Subsequently, on October 14, 2022 and October 19, 2022, the DOE conducted a Psychoeducational Evaluation, and the report was completed on November 11, 2022.[53] During the Psychoeducational Evaluation, the Student had difficulty remaining focused on the task at hand.[54] According to the assessments, the Student’s overall IQ was found to be in the extremely low range, but the report indicates that the results should be interpreted with caution due to the impact of the Student’s behaviors during the assessments.[55] While the Student’s academic skills could not be formally assessed due to the Student’s behavior during the evaluation, based on informal testing, the Student demonstrated the ability to count from 1-15, identify shapes and label common objects, and understood 1:1 correspondence.[56] However, the Student was not able to write with a pencil but instead scribbled with crayons.[57] Per the Gilliam Autism Rating Scales, Third Edition, the Student’s Autism Index score was a Level 2, indicating that it is very likely that the Student has Autism Spectrum Disorder.[58] He also had elevated scores in Emotional Responses and Social Interaction Scales, and deficits in his Adaptive and Daily Living Skills.[59] Nonetheless, the Student is able to feed himself, use the bathroom independently, and put away his belongings appropriately. [60]
Next, on November 16, 2022, an OT Evaluation was conducted, and a report was completed on November 22, 2022.[61] During the OT Evaluation, the Student was observed in his kindergarten classroom and accompanied by a 1:1 paraprofessional.[62] According to the OT Evaluation report, the Student requires “constant redirection and repetition of instructions to attempt his engagement.”[63] In addition, the Student was observed to have difficulty drawing, writing, responding appropriately to environmental sounds and visuals, adjusting his force when handling or moving objects, sitting without excessive rocking, bouncing, or spinning, and maintaining personal space.[64] The evaluator noted in the report that the Student is “struggling with all aspects of school functioning which is notably impacted by sensory development, such as being comfortable enough in his chair to accept instruction, [and] safely organize his body and classroom tools for completing motor tasks.”[65] The report recommended two weekly OT sessions in a group of three for 30 minutes to address the Student’s areas of weakness. [66]
Furthermore, on November 17, 2022, a Speech-Language Evaluation was conducted and a report was completed on November 21, 2022.[67] During the Speech-Language Evaluation, the Student was accompanied by his paraprofessional and “presented as exceedingly self-directed.” [68] The speech language pathologist noted in the Speech-Language Evaluation report that the Student has significant language delays and was not able to follow any directions without being guided.[69] His inability to follow directions and engage in the assessment process precluded him from completing some of the assessment tasks.[70] The report indicated the Student’s “overall total language score fell in the very low range indicating that his receptive and expressive language abilities are significantly delayed.”[71] The evaluator recommended SLT, but did not specify session frequency or intensity needed to address the Student’s speech-language delays. Instead, the report states that the “final determinations regarding frequency, duration, and group size will be made at the time of the IEP meeting.” [72]
On November 18, 2022, the DOE’s CSE convened a meeting to develop an IEP for the Student.[73] At the IEP meeting, the Parent expressed concerns about the Student walking up and down the stairs one step at a time.[74] However, the DOE did not conduct a PT evaluation for the Student. In addition, the CSE did not provide the Parent with copies of any of the evaluations prior to or during the IEP meeting. 75 In addition, the Parent testified that she disagreed with the DOE’s evaluations of the Student, indicating that the evaluations did not accurate reflect what the Student knew and did not know and the Student actually knows a lot more than what the evaluation reports were stating.[76] Furthermore, the Parent requested a copy of the IEP after the meeting concluded, but was instead given a copy of the Psychoeducational Evaluation.[77] The Parent was not provided with the IEP until January 31, 2023, more than two months after the IEP meeting.[78] In addition, the DOE did not provide the Parent with the other evaluations conducted for a few more months despite efforts made by her attorney’s office to retrieve them. [79]
As a result of the November 18, 2022 IEP meeting, the CSE recommended that the Student attend a 6:1+1 special education classroom in a District[75] school with related services of individual OT twice weekly and individual SLT three times per week.[80] The Parent disagreed with the CSE’s recommendation because she did not believe the program would be supportive enough for the Student.[81] In addition, there is no evidence in the hearing record to show that the Student was going to be provided with a 1:1 paraprofessional as part of his IEP mandate. The IEP’s recommended special education programs and services do not list a 1:1 paraprofessional. [82]
On December 6, 2022, the Parent was provided with a school location letter recommending that the Student attend Recommended Public School.[83] The Parent set up an appointment to tour the school and obtain additional information about the placement, but when she arrived she was told that a tour would not be permitted because she has not taken the COVID-19 vaccine.[84] In addition, the Parent was told that she would not be permitted inside the school at all if the Student attended there, even though the Student had not taken the COVID-19 vaccine either. [85] Subsequently, the Parent spoke with school personnel for two additional DOE public school placements in District 75, but was told that there was no room in either school to accommodate the Student and implement his IEP.[86] The November 18, 2022 IEP has an implementation date of December 1, 2022.[87] However, the Student’s IEP was never implemented.
On March 14, 2023, the Student was accepted into the Special Institute at the Private School with related services of SLT and OT, a designated 1:1 paraprofessional, and parent counseling/training.[88] Thereafter, on April 5, 2023, the Parent provided the DOE with a letter (“Ten-Day Notice”), expressing the Parent’s concerns with the IEP and the Recommended Public School. The Ten-Day Notice informed the DOE about the Parent’s intention to enroll the Student at the Private School and seek reimbursement for the remainder of the 2022-2023 school year if the DOE failed to address the Parent’s concerns and offer the Student a FAPE. [89]
On April 25, 2023, the Parent signed a contract enrolling the Student at the Private School and unilateral placed the Student at the Private School for the remainder of the 2022-2023 school year, commencing April 26, 2023 until the last day of school June 23, 2023.[90] The total cost of the tuition for the nine weeks was $26,438.75 including related services with a designated 1:1 paraprofessional.[91] As of May 18, 2023, no payments have been made to the Private School and the current outstanding balance due is $26,438.75.[92] Furthermore, the evidence shows that the Parent is currently receiving public assistance since she has an active cash assistance budget, receives SNAP benefits, Medicaid and Section 8 subsidized housing. [93]
The Private School serves students diagnosed with autism spectrum disorders and provides individualized education, therapeutic support including Applied Behavior Analysis (“ABA”), social and life skills instruction, small class sizes, 1:1 support, and a culture of support and encouragement.[94] Moreover, the Special Institute at the Private School is a 12-month educational program providing a high degree of individualized instruction and attention.[95] The Private School employs board certified behavior analysts who have master’s degrees in data analytics, behavior, and intervention since the core methodologies at the Private School is ABA.[96] Each student undergoes a Functional Behavior Assessment (“FBA”) and the results lead to the development of a Behavioral Intervention Plan (“BIP”) “that outlines proactive strategies to increase positive behavior, and reactive strategies to reduce the frequency of maladaptive behavior.”[97] According to the Vice President of Educational Programs at the Private School, the use of ABA methodologies at the Private School helps the students learn and be able to self-regulate, so all of the staff at the Private School are trained in ABA and collaborative problem solving.[98] The ABA training is a 40-hour course, and the Student’s teacher holds a registered behavior technician certificate, a bachelor’s degree in psychology, and is currently in school to obtain a master’s degree in special education.[99] Moreover, staff at the Private School also start with a two-week orientation, learning about effective strategies working with students with autism.[100] Then, the staff members take a CPI certification course which is non-violent crisis prevention and intervention.[101] Additional trainings occur throughout the school year, and once per month, there are half days so that all of the staff members can participate in training.[102] The Private School maintains a Regents certification and is also accredited by New York State to provide teachers with workshops for continuing education credits.[103] The Private School has a sensory gym and integrates a lot of sensory activities in the classroom. [104]
In the instant matter, the Private School placed the Student in the Special Institute at the Private School in a 6:1+1 classroom setting with a designated 1:1 paraprofessional, individual SLT three times per week and individual OT two times per week.[105] The Special Institute at the Private School uses ABA to facilitate skill development. The Student’s class schedule consists of Activities of Daily Living (“ADL”), English-Language Arts (“ELA”), Math, Science, Social Thinking, Gym, and Art.[106] The Vice President of Educational Programs at the Private School testified that the decision to provide the Student a 1:1 paraprofessional was because he did exhibit some behaviors and distractibility and needs someone to help keep him on task and to give him reinforcement.[107] In addition, the Student’s related services of SLT and OT are built into his schedule each day.[108] According to the Student’s Academic 45-Day Report dated May 18, 2023, the teacher uses ABA methodologies to assist the Student throughout the day.[109] The Student “learns best with a sensory based approach and is an active participant in class activities.”[110] The Student can listen to directions and complete tasks and initiate interactions with his classmates. [111] Moreover, the Student can identify the letters of the alphabet and the sound of each letter, and is working on tracing letters, shapes and lines.[112] In Math, the Student can identify numbers 1 through 17.[113] In Social Thinking class, the teacher uses a evidence-based program for students with autism to help the Student identify his feelings and self-regulate. [114]
While the Student often has difficulty transitioning from a preferred task to a non-preferred task, the Private School implemented the use of timers, giving the Student a five-minute warning and then a two-minute warning to ease the transitions.[115] When the Student is overstimulated or does not like the directive given, he sometimes drops to the floor or shows aggressive behaviors such as throwing objects on the floor.[116] In order to address these behaviors, the Private School provides the Student with frequent movement and sensory breaks throughout the day.[117] The Vice President of Educational Programs at the Private School testified that when the Student first came to the Private School, he could not sit still for a second and was very distractable, but through the use of ABA and reinforcements, the Student is now “able to sit for at least two minutes and focus.” [118]
Moreover, according to the Student’s SLT 45-Day Progress Report, the Student benefits from ABA methodologies including intermittent breaks, work-to-earn strategies, and first/then statements.[119] In terms of receptive language skills, the Student can follow directions that are onestep or two-step and benefits from repetition of the directives.[120] While the Student usually communicates using two-word utterances, he has “expand[ed] his utterance length to three words when provided with phonemic cues.”[121] Regarding pragmatic language, the Student “responds to adult greetings by waving or verbally expressing ‘hi’ independently.”[122] The Vice President of Educational Programs at the Private School testified that the Student has improved his ability to answer WH literal questions.[123] The speech language pathologist recommended increasing the Student’s SLT to also include group SLT once per week in addition to the three sessions per week of individual SLT that he is already receiving. [124]
Furthermore, according to the Student’s OT 45-Day Progress Report, the Student “tolerates most sensory input” and “completes most therapist directed tasks with moderate to maximal verbal and visual prompts.”[125] The Student needs short sensory breaks after an activity, but “he is however able to sit for up to 2 minutes to complete tabletop activities with maximal verbal, tactile and visual prompts.”[126] Regarding his fine motor skills, the Student “can hold the writing utensil with a tripod grasp for a short period of time.”[127] The occupational therapist utilizes broken crayons and shortened pencils to help the Student develop age-appropriate grasp.[128] In addition, the Student “requires moderate verbal and tactile prompts for pacing, visual motor integration, and visual attention to trace a straight horizontal, vertical, or diagonal line.”[129] The occupational therapist at the Private School created goals for the Student to help the Student improve his pre-writing skills, visual attention on a coloring activity for up to 3 minutes, and improving his hand strength. [130]
Moreover, the Student underwent a FBA at the Private School and a BIP was created for the Student at the Private School.[131] The behavior analyst assessed the Student’s non-compliance behavior, property destruction, and tantrum behavior. The behavior analyst found that the intensity of the Student’s non-compliance behavior was mildly disruptive and “the average duration of a behavioral episode that included an occurrence of noncompliance was 5.8 minutes.”[132] In addition, there has only been two instances in which the Student has destroyed property by throwing objects on the floor.[133] Moreover, the Student’s “average duration of a tantrum behavior was 7.8 minutes per occurrence” and tantrums occurred five times since the Student began at the Private School.[134] As a result of the FBA, the Private School created a BIP for the Student which details how the Private School implements proactive procedures to maintain adaptive behaviors including verbal praise, a structured and consistent environment for the Student, visual supports, individualized instruction, a separate work area, the use of visual timers, scheduled movement breaks, daily social skills training, positive reinforcement, and the use of functional communication skills. [135]
Lastly, regarding PT, the Vice President of Educational Programs at the Private School testified that while the Student is not currently receiving any PT at the Private School, in his physical education class, the teacher noticed the way the Student maneuvers his body and his gait and balance “wasn’t so good.” [136]
CONCLUSIONS OF LAW AND ANALYSIS
This case concerns the DOE’s alleged failure to provide the Student with a FAPE for three school years: 2020-2021, 2021-2022, and 2022-2023. Specifically, the Parent alleged that the DOE failed to: (1) evaluate the Student and recommend an appropriate preschool program and placement for the Student for the 2020-2021 and 2021-2022 school years, (2) provide any related services for those school years, (3) properly evaluate the Student in all areas of suspected disability prior to the beginning of the 2022-2023 school year, (4) create and implement an IEP for the Student prior to the beginning of the 2022-2023 school year, (5) either grant an Independent Educational Evaluation (“IEE”) or initiate a due process hearing to defend its evaluations, (6) create an appropriate IEP for the Student at the November 18, 2022 meeting with measurable goals and accurate present levels of performance, (7) properly implement the IEP that was created, and (8) provide the Parent with evaluations and the IEP in a timely fashion. [137]
FAPE
The IDEA and the New York Education Law require school districts to offer a FAPE to each child with a disability residing in their district who requires special education programs or services.[138] 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.[139] A school district has offered a student a FAPE when it complies with the procedural requirements set forth in the IDEA, and the IEP is reasonably calculated to enable the student to receive educational benefits.[140] Under the IDEA, students with disabilities are entitled to be educated in the least restrictive environment that meets their unique needs. [141]
Parents may allege procedural and/or substantive FAPE violations. For procedural violations, a denial of a FAPE only occurs “if the procedural inadequacies- (I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” [142]
To meet its substantive FAPE obligations, a 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.”[143] The District must offer “an IEP that is ‘likely to produce progress, not regression,’ and ... affords the student with an opportunity greater than mere ‘trivial advancement.’”[144] A school district must be able to “offer a cogent and responsive explanation for their decisions” in creating the IEP.[145] The IEP must be reviewed at least annually, and a district must have an IEP in place for each student with a disability within its jurisdiction at the beginning of each school year.[146] The IEP should: (1) accurately reflect the results of evaluations to identify the student’s needs, 147 (2) provide for the utilization of sufficient special education programs or services,[148] and then (3) the IEP must be properly and timely implemented.[149] Failure to implement substantial or significant provisions of an IEP is a denial of a FAPE. [150]
Furthermore, the IDEA contains a “Child Find” obligation, which is the duty to identify, locate and evaluate students who are suspected of having a disability and who need special education and related services.[151] The obligation extends to all students suspected of having a disability requiring special education, “even if they are advancing from grade to grade.”[152] The school district, parents, or other agencies can trigger the duty to evaluate a student.[153] Once an evaluation request is made, the IDEA requires the school district to evaluate the child within sixty days to determine whether the student is a student with a disability under the IDEA.[154] A school district must begin the evaluation process within a reasonable time after the district is on notice of a likely disability.[155] A violation of the Child Find obligation is a violation of the IDEA. [156]
In due process hearings under the IDEA in New York, school districts have the burden of proof, including the burden of production and burden of persuasion. However, there is an exception in that a parent seeking tuition reimbursement or funding for a unilateral parental placement has the burden of persuasion and burden of production regarding the appropriateness of such placement.[157] In this case, the Parent is seeking tuition funding, transportation, evaluations, and compensatory services.[158] As this case does involve a parental unilateral placement, the burden regarding whether the unilateral placement is appropriate is on the Parent, and the burden regarding all other elements of the case is on the DOE. [159]
147
34 C.F.R. § 300.320(a)(1); 8 N.Y.C.R.R. 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at 6 (S.D.N.Y. July 3, 2008).
Here, the DOE Attorney did not defend Prong 1 of the Burlington/Carter standard and thus, the DOE failed to meet its burden of showing the Student was provided a FAPE for the school years at issue. The DOE Attorney did not seek to admit any documentary evidence into the hearing record, call any witnesses at the hearing, or make an opening statement.[160] Therefore, there is no evidence in the record as to how the CSE made its recommendation, how the IEP appropriately describes the Student, or whether the IEP is meaningfully calculated to confer educational benefit. In short, the DOE declined to “offer a cogent and responsive explanation for their decisions” in creating the November 18, 2022 IEP, and it is “through the IEP that “[t]he ‘free appropriate public education’ required by the Act is tailored to the unique needs of” a particular child.”[161] The DOE did not present any evidence at all and could not rebut the Parent’s allegations. Therefore, I must find that the DOE failed to offer the Student a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years.
Moreover, regardless of whether the DOE attempted to show at the hearing that the DOE provided a FAPE to the Student, a review of the evidence admitted into the hearing record supports a finding that the DOE did not provide the Student with a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. For the 2020-2021 and 2021-2022 school years, the DOE never identified the Student as a student with a disability. The DOE never evaluated the Student despite its Child Find obligation. Once the COVID-19 pandemic started, the Student stopped receiving early invention services and did not attend a preschool program at all from while he was three and four years old.[162] Therefore, I find that the DOE failed to offer the Student a FAPE for the 2020-2021 and 2021-2022 school years.
Moreover, for the 2022-2023 school year, the IEP developed for the Student and the public school placements recommended by the CSE were inappropriate for the Student and could not meet the Student’s unique needs. The evidence in the hearing record shows that the Student needs a 1:1 paraprofessional and tailored instruction using ABA methodologies to allow the Student to access a meaningful education.[163] In addition, the DOE never conducted an FBA and therefore, did not create a BIP for the Student. Nonetheless, the Student’s IEP was never implemented as the Parent was prevented from touring the Recommended Public School and the two additional public school placements did not have room to accommodate the Student.[164] Therefore, I find that the program mandated by the November 18, 2022 IEP is inappropriate for the Student and therefore, the DOE failed to offer the Student a FAPE for the 2022-2023 school year as well.
Tuition Funding for the Unilateral Placement
The Parent seeks tuition funding for the unilateral placement at the Private School for the period of time the Student attended the Private School during the 2022-2023 school year. When a parent believes that a school district has failed to provide a student with a FAPE, a parent may unilaterally enroll the child in a private school and seek tuition payment from the school district by filing a due process complaint.[165] The due process complaint may address “any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education.” [166]
A district must pay for the cost of a student’s tuition at a private school if the three “prongs” of the Burlington/Carter test are met: (1) the district denied the student a FAPE; (2) the private school unilateral placement is appropriate; and (3) the equities favor an order of tuition reimbursement or funding. [167]
Prong 1
As discussed in detail above, the DOE failed to meet its burden at the hearing to show that the Student was provided a FAPE for the 2020-2021, 2021-2022, and 2022-2023 school years. The DOE did not attempt to show that the Student was provided a FAPE. In addition, the evidence in the hearing record shows that despite the Student receiving some early intervention services, the Student was not evaluated until October and November of 2022 and the CSE did not convene to create an IEP for the Student until November 18, 2022.[168] Furthermore, the evidence in the hearing record shows the IEP created was never implemented even though it has an implementation date of December 1, 2022. [169]
Prong 2
Moreover, I now must consider whether the Private School was an appropriate unilateral placement for the Student. A unilateral private school placement is appropriate if it is “reasonably calculated to enable the child to receive educational benefits.”[170] Parents need not show that the unilateral placement is perfect or that it meets all state educational standards.[171] Instead, parents must “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.”[172] In addition, parents seeking reimbursement or tuition funding “bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate.”[173] While there are some exceptions, “’the same considerations and criteria that apply in determining whether the [DOE’s] placement is appropriate should be considered in determining the appropriateness of the parents’ placement.’” [174]
A unilateral placement is appropriate if it provides instruction specially designed to meet the unique needs of a student.[175] The determination of whether the unilateral placement serves a student’s individual needs and is reasonably calculated to enable a student to receive educational benefits does not depend only on one factor. Instead, courts assessing the appropriateness of a unilateral placement must consider the totality of the circumstances, including but not only, academic progress demonstrated through grades, test scores, progress reports, and regular advancement. [176]
The DOE alleged in its closing brief that the Parent’s unilateral placement is not appropriate.[177] I disagree. A private school placement must be “proper under the Act.”[178] This means that the Private School must offer an educational program which meets the student’s special education needs.[179] I find that the Private School meets the Frank G. standard and provides the Student educational instruction that is designed to meet the Student’s unique needs and enable the Student to make progress. Primarily, the Private School is appropriate because it provides the Student with individualized attention and instruction with similarly functioning peers. This “comes within the IDEA definition of ‘special education,’ namely, ‘specially designed instruction . . . to meet the unique needs of a child.’”[180] The hearing record shows that the Private School developed an individualized program for the Student which includes a 1:1 paraprofessional, related services, a BIP, and tailored instruction using ABA methodologies to meet the Student’s needs. [181]
Furthermore, the record demonstrates that the Special Institute at the Private School adapts instruction year-round, providing a high degree of individualized attention to the Student and his educational needs.[182] The main goal of the Special Institute at the Private School is to “serve children on the spectrum who require a high degree of individualized attention and treatment that may not be provided in a mainstream setting.”[183] By developing a BIP for the Student “that outlines reactive strategies to reduce the frequency of maladaptive behavior” and utilizing ABA methodologies, the Special Institute at the Private School helps the Student access a meaningful education and make progress.[184] Through the BIP, the Private School implements proactive procedures to maintain adaptive behaviors including verbal praise, a structured and consistent environment for the Student, visual supports, individualized instruction, a separate work area, the use of visual timers, scheduled movement breaks, daily social skills training, positive reinforcement, and the use of functional communication skills. [185]
Furthermore, the Private School is appropriate for the Student because it provides the Student with the 1:1 paraprofessional. The Vice President of Educational Programs at the Private School testified that the decision to provide the Student a 1:1 paraprofessional was because he did exhibit some behaviors and distractibility and needs someone to help keep him on task and to give him reinforcement.[186] While the Student often has difficulty transitioning from a preferred task to a non-preferred task, the Private School implemented the use of timers, giving the Student a five-minute warning and then a two-minute warning to ease the transitions, and the 1:1 paraprofessional is present to give reinforcement and keep the Student on task.[187] Overall, the record makes clear that there are many examples showing that the Private School is individualizing instruction and behavioral support for the Student, and these examples further support a finding that the Private School is appropriate under Prong 2.
Additionally, the Private School is appropriate because it provides the Student with instruction from trained teachers. The law in this circuit is that “a private placement need not provide certified special education teachers…for the disabled student,” but in this case, the Private School nevertheless ensures that its teachers have the training and specialization necessary to teach the Student based on his needs.[188] The evidence shows that all of the staff at the Private School are trained in ABA and collaborative problem solving.[189] The ABA training is a 40-hour course, and the Student’s teacher holds a registered behavior technician certificate, a bachelor’s degree in psychology, and is currently in school to obtain a master’s degree in special education. [190] Moreover, staff at the Private School also start with a two-week orientation, learning about effective strategies working with students with autism.[191] Then, the staff take a CPI certification course which is non-violent crisis prevention and intervention.[192] Additional trainings occur throughout the school year, and once per month, there are half days so that all of the staff can participate in training.[193] Therefore, the teachers have sufficient training to teach the Student based on his unique needs and learning profile.
In addition, the Private School is appropriate because the Student is making progress at the school, academically, behaviorally, and in his related services. Significant progress can be a factor weighing in favor of the appropriateness of the parent’s unilateral placement.[194] While a student’s progress at the private placement is not by itself sufficient to determine whether a placement is appropriate, that progress is a relevant factor in assessing the appropriateness of the placement.[195] In this case, the Student has made progress despite only attending the program for a short period of time. According to the Student’s Academic 45-Day Report dated May 18, 2023, the teacher notes that the Student “learns best with a sensory based approach and is an active participant in class activities.”[196] The Student can listen to directions and complete tasks and initiate interactions with his classmates.[197] Moreover, the Student can identify the letters of the alphabet and the sound of each letter, and is working on tracing letters, shapes and lines.[198] In Math, the Student can identify numbers 1 through 17.[199] In addition, the Vice President of Educational Programs at the Private School testified that when the Student first came to the Private School, he could not sit still for a second and was very distractable, but through the use of ABA and reinforcements, the Student is now “able to sit for at least two minutes and focus.”[200] While the Student usually communicates using two-word utterances, he has made progress communicating and has “expand[ed] his utterance length to three words when provided with phonemic cues.” [201]
Overall, the hearing record establishes that the Student’s unique special education needs have been met by the Private School. The instruction offered at the Private School was “reasonably calculated to enable the child to receive educational benefits.”[202] I find the DOE’s arguments concerning the appropriateness of the Parent’s unilateral placement without merit, and I find that the Parent has met her burden in proving that the Private School offered an educational program which met the Student’s needs under Prong 2 of the Burlington/Carter standard.
Prong 3
Under Burlington/Carter, if the parents are financially obligated to pay for the contracted tuition costs and have met their prong 2 burden, the contract must be fully reimbursed or directly funded by the district unless, as a matter of equitable considerations, the costs are excessive or should otherwise be reduced.[203] The courts have “broad discretion to consider the range of all relevant facts in determining whether and to what extent awarding relief is equitable.”[204] 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."[205] “[A] major consideration in deciding whether the third factor is satisfied is whether the parents have cooperated with the [DOE] throughout the process to ensure their child receive[s] a FAPE.”[206] Specifically, equitable considerations include the parents’ participation in IEP meetings, visits to the proposed school placements, and notification of their unilateral placement decision to the District. [207]
In addition, a hearing officer may consider many additional factors, including whether a parent’s unilateral withdrawal of the child from the public school was justified, whether the parent should have sought need-based scholarships or other financial aid from the private school, whether there was any fraud or collusion in generating, or inflating, the tuition to be charged to the school district, and whether the arrangement with the school was fraudulent or collusive in any other respect. [208]
I find that the equities favor the Parent’s claims. Here, not only did the Parent fully cooperate with the CSE, but the evidence also shows that the Parent fully participated in the IEP process. The Parent requested for the Student to be evaluated.[209] The Parent expressed her concerns about the Student’s distractibility, difficulty communicating his needs, and behavior issues at the IEP meeting.[210] The Parent’s cooperation and participation weighs in favor of the Parent’s request for direct tuition funding under Prong 3 of the Burlington/Carter standard. [211]
Furthermore, on April 5, 2023, the Parent provided the necessary Ten-Day Notice of her concerns with the DOE’s offer of FAPE for the Student for the 2022-2023 school year and her intent to unilaterally place the Student in the Private School for the remainder of the school year. [212] In the notice letter, the Parent lists her concerns regarding the November 18, 2022 IEP. [213]
As discussed previously, on April 25, 2023, the Parent signed a contract enrolling the Student at the Private School and unilateral placed the Student at the Private School for the remainder of the 2022-2023 school year, commencing April 26, 2023 until the last day of school June 23, 2023.[214] The total cost of the tuition for the nine weeks was $26,438.75 including related services with a designated 1:1 paraprofessional.[215] As of May 18, 2023, no payments have been made to the Private School and the current outstanding balance due is $26,438.75.[216] I find no issue with the reasonableness of the cost of tuition for the Private School. The Student’s attendance record shows that the Student attended the Private School regularly with only a reasonable number of absences.[217] Overall and after considering the hearing record, I find that the equities support the Parents’ claim for tuition funding.
By way of relief, the Parent seeks to have the cost of the tuition for the period of time the Student attended the Private School during the 2022-2023 school year paid directly to the Private School. Direct tuition funding is relief encompassed by the equitable remedial powers inherent in IDEA.[218] Tuition at the Private School for the 2022-2023 school year, from April 26, 2023 through June 23, 2023, was $26,438.75.[219] Pursuant to the contract, the Parent is liable for tuition, including if the Parent is denied tuition funding through a final decision.[220] Under the law, “once the Burlington prerequisites are met, and a parent shows that his or her financial circumstances eliminate the opportunity for unilateral placement in the non-approved school, the public school must pay the cost of the private placement immediately.”[221] Having reviewed the Parent’s public assistance budget, including cash assistance, SNAP benefits, Medicaid and Section 8 subsidized housing, I find that the Parent cannot afford to pay the tuition and seek reimbursement.[222] Equity demands that the DOE fund the Student’s Private School tuition directly in this instance.
As I have found that the Burlington/Carter test has been met, that there is no evidence that the tuition amount sought is unreasonable, and that there is evidence that the Parent is unable to pay for the Private School, I am granting the request for direct tuition payment to the Private School for the cost of tuition $26,438.75 for the period of time the Student attended the Private School during the 2022-2023 school year.
Transportation to the Private School 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.”[223] 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.’” [224]
In addition, New York State Education 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.”[225] The requested transportation must also be “reasonable when all of the facts are considered.”[226] In a guidance document, the State Education Department has indicated that the CSE should consider and document a student’s mobility, behavior, communication, physical, and health needs when determining whether or not a student requires transportation as a related service, that the IEP “must include specific transportation recommendations to address each of the student’s needs, as appropriate,” and that when determining a student’s special transportation needs, such as the need for door-to-door transportation, it must document them.[227] Other relevant considerations may include the student’s age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance. [228]
In the DPC, the Parent requested an Order directing the DOE to provide appropriate special education transportation services for the Student to and from the Private School.[229] I find that transportation services are appropriate and that the Student is entitled to such. I find that Student is entitled to specialized transportation to access and benefit from his special education program. Although the 2022-2023 school year has ended, I am ordering the DOE to provide appropriate transportation for the Student as a declaration of his entitlement to such.
Independent Educational Evaluations
In the DPC, at hearing, and in the Parent’s closing brief, the Parent made requests for independent neuropsychological, speech-language, OT, and PT evaluations, via providers chosen by the Parent at market rate. The Parent argued that she was entitled to these assessments as an IEE.
An Independent Educational Evaluation (IEE) is “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.”[230] The IDEA and state and federal regulations allow a parent to request an IEE at public expense if the parent disagrees with a school district’s evaluation.[231] In Shaffer v. Weast, the Supreme Court explained the role an IEE plays in parental participation and the IDEA’s regulatory scheme as follows: “[an IEE] ensures parents access to an expert who can evaluate all the materials that the school must make available, and who can give an independent opinion. They are not left to challenge the government without a realistic opportunity to access the necessary evidence, or without an expert with the firepower to match the opposition.” [232]
If a parent requests an IEE, the school district must provide the parent with information about where they can obtain an IEE.[233] A school district can set criteria regarding the IEE, including the qualifications of the examiner, but the district’s criteria must be the same as the criteria it uses for its own evaluations, and the district cannot impose additional conditions or timelines related to the IEE.[234] For example, a school district may not compel the use of a particular evaluator or its own chosen evaluator for an IEE,[235] nor can it deny an IEE at public expense based solely on financial cost.[236] A parent’s right to an IEE at public expense may not be conditioned on the school district’s ability to first conduct its own assessment before granting the parent’s request for an independent IEE.[237] Finally, while the school district may “ask for the parent’s reason why he or she objects to the public evaluation,” the district cannot require an explanation or delay providing the IEE until the parent provides an explanation.[238] When a parent disagrees with a school district’s evaluation and 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 impartial hearing to establish that its evaluation is appropriate or that the evaluation obtained by the parent does not meet the school district criteria. [239]
In this case, I disagree with the DOE’s argument that the Parent did not properly disagree with the DOE’s evaluations. I find that the Parent properly expressed her disagreement with the DOE’s evaluations in the Ten-Day Notice/DPC. Although the Parent is not required to provide an explanation, the Parent thoroughly explained her concerns regarding the psychoeducational, speech-language, and OT evaluations conducted by the DOE.[240] The Parent testified credibly that she disagreed with the DOE’s evaluations of the Student because the evaluations did not accurately reflect what the Student knew and did not know and the Student actually knows a lot more than what the evaluation reports were stating.[241] In addition, the evaluations conducted by the DOE state that the results should be interpreted with caution due to the impact of the Student’s behaviors during the assessments, which is also noted in the Student’s IEP. [242]
The DOE did not respond to the Parent’s concerns provided in the Ten-Day Notice that was sent to the DOE on April 5, 2023. The District did not initiate an impartial hearing to establish that its recent evaluations were appropriate, nor did it take the necessary action to ensure that the Parent’s requested IEE was provided at public expense.
Moreover, a parent is entitled to an IEE when the district does not conduct a sufficiently comprehensive evaluation or fails to test the student in an area of need.[243] In D.S., the court stated that, “[n]othing in the statute or regulations suggests that a parent cannot challenge an evaluation on the ground that it was too limited. To the contrary, because the IDEA requires an evaluation to be comprehensive, one would expect that a parent is free to disagree with an evaluation based on its deficient scope.”[244] The U.S. Department of Education’s Office of Special Education Programs (“OSEP”), has similarly stated that when 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.” [245]
Here, I find that the Parent properly expressed her concerns regarding the lack of a comprehensive evaluation of the Student in all areas of suspected disability.[246] At the IEP meeting, the Parent expressed concerns about the Student walking up and down the stairs one step at a time.[247] However, the DOE did not conduct a PT evaluation for the Student. The DOE should have conducted a more thorough evaluation that assessed the Student in all areas of suspected disability as required by law including the Student’s possible need for PT. In the Student’s physical education class, the teacher noticed the way the Student maneuvers his body and his gait and balance “wasn’t so good,” so a PT evaluation is necessary for the Student. [248]
Moreover, once the Parent expressed her disagreement with the scope of the evaluations conducted and with the evaluations specifically, the DOE should have either initiated an impartial hearing to establish that its evaluation was appropriate or take the necessary action to ensure that the Parent’s request for a comprehensive IEE was provided at public expense. The DOE did neither. The Parent is therefore entitled to have the requested evaluations conducted at public expense by a duly qualified evaluator selected by Parent.
Furthermore, regarding the cost of publicly funded evaluations, while a school district may establish criteria to ensure that the cost of an IEE at public expense is reasonable, the U.S. Department of Education has stated the following:
[i]n order to avoid unreasonable charges for IEEs, a district may establish maximum allowable charges for specific tests. If a district does establish maximum allowable charges for specific tests, the maximum cannot simply be an average of the fees customarily charged in the area by professionals who are qualified to conduct the specific test. Rather, the maximum must be established so that it allows parents to choose from among the qualified professionals in the area and only eliminates unreasonably excessive fees. When enforcing reasonable cost containment criteria, the district must allow parents the opportunity to demonstrate that unique circumstances justify an IEE that does not fall within the district’s criteria. If an IEE that falls outside the district’s criteria is justified by the child’s unique circumstances, that IEE must be publicly funded. [249]
Here, while the Parent provided ample evidence of the current market rate costs of evaluations including affidavit testimony and rate sheets, the DOE failed to offer any evidence at all.[250] Therefore, I have no basis for finding the rates presented by the Parent to be unreasonable. Overall, I find that the DOE did not follow the procedure required by law, and the Parent is entitled to an independent neuropsychological evaluation, speech-language evaluation, OT evaluation, and PT evaluation.
Compensatory Services
The Parent further requested compensatory services to compensate the Student for the denial of FAPE. While the denial of FAPE lasted over the course of the three school years at issue, the Parent requested an order for compensatory services in one of two proposed ways: 1) as a quantitative measure to make up for the denial of FAPE over the 23 weeks between the November 18, 2022 IEP and April 25, 2023, the last day he attended the Public School. Specifically, the parent is requesting 2 hours per day of 1:1 instruction by an ABA-trained special education teacher (230 hours) with 23 hours of ABA supervision by a licensed board certified behavior analyst (“BCBA”), 1:1 speech language therapy at a frequency of three 30-minute sessions per week (34.5 hours), and 1:1 occupational therapy at a frequency of two-30 minute sessions per week, (23 hours); or 2) require the neuropsychological, PT, OT, and SLT evaluators to recommend the amount of compensatory services needed for the Student and direct the DOE to fund such services by providers chosen by the Parent, at market rate. [251]
A hearing officer may award compensatory services relief in the form of supplemental special education or related services when there has been a denial of a FAPE.[252] Compensatory services can serve as a “replacement of educational services the child should have received in the first place,” and any award “should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA[.]” [253]
In the DOE’s closing brief, the DOE argues that the hearing record lacks sufficient information to support an award of compensatory services.[254] However, under the law, it was the DOE’s burden at the hearing to develop the hearing record to establish the appropriate amount of relief needed to remediate the DOE’s failure to provide the Student a FAPE for the school years at issue.[255] The DOE failed to do so. The State Review Office (“SRO”) has clearly indicated that “it is not persuasive for the [DOE] to simply fault the [Parent’s] request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the [DOE’s] failure to provide the [Student] with a FAPE.”[256] Therefore, I find that an award of compensatory services is warranted to not leave the Parent with an “empty victory.” [257] In addition, despite the DOE’s failure to develop the hearing record regarding the appropriate remedy for the DOE’s failure to provide the Student a FAPE, I find that the evidence in the hearing record nonetheless supports an award of compensatory services as discussed further below.
a. 1:1 Instruction by an ABA-trained Special Education Teacher Supervised by a
BCBA
The Parent requested 230 hours of 1:1 instruction by an ABA-trained special education teacher to make up for the 23 weeks between the Student’s November 18, 2022 IEP and April 25, 2023, the last day the Student attended the Public School to address the DOE’s failure to provide the Student with an appropriate special education program. The Parent also requested 23 hours of ABA supervision by a licensed BCBA, which would amount to one hour of supervision per week for the 23-week period. I find this request very reasonable. There was copious information in the record about the Student’s current deficits and the need for remediation. In addition, there is evidence in the hearing record that the Student benefits from ABA methodologies and has made progress at the Private School where ABA methodologies are utilized daily. For example, the Student’s Academic 45-Day Report and the testimony of the Vice President of Educational Programs at the Private School both demonstrate the Student’s need for ABA. According to the Student’s Academic 45-Day Report dated May 18, 2023, the teacher uses ABA methodologies to assist the Student throughout the day and thus, according to the Vice President of Educational Programs at the Private School, “through the use of ABA and reinforcements, the Student is now “able to sit for at least two minutes and focus.”[258] Therefore, I find that the compensatory services award for 230 hours of 1:1 instruction by an ABA-trained special education teacher and 23 hours of supervision by a licensed BCBA can remediate the DOE’s failure to provide the Student a FAPE from the date of his IEP November 18, 2022 until the last day he attended the Public School, April 25, 2023. The DOE has failed to provide any evidence that the number of hours requested or the rate requested is unreasonable. As such, I find the record support this number of hours.
b. Speech-Language
Moreover, the Parent requested 34.5 hours of compensatory SLT services. The hearing record clearly demonstrates that the Student needs speech-language services to access his education and the DOE provided no evidence at all as to whether the Student received any SLT between November 18, 2022 to April 25, 2023. It is undisputed that the Student’s November 18, 2022 IEP mandates individual SLT three times per week for 30-minute sessions.[259] In addition, according to the Student’s SLT 45-day Progress Report, in terms of receptive language skills, the Student can follow directions that are one-step or two-step and benefits from repetition of the directives.[260] While the Student usually communicates using two-word utterances, he has “expand[ed] his utterance length to three words when provided with phonemic cues.”[261] Regarding pragmatic language, the Student “responds to adult greetings by waving or verbally expressing ‘hi’ independently.”[262] The Vice President of Educational Programs at the Private School testified that the Student has improved his ability to answer WH literal questions.[263] The speech language pathologist recommended increasing the Student’s SLT to also include group SLT once per week in addition to the three sessions per week of individual SLT that he is already receiving. [264] Therefore, there is ample evidence in the hearing record supporting a compensatory services award of SLT and the DOE has failed to provide any evidence that the number of hours requested or the rate requested is unreasonable. As such, I find the record supports this number of hours.
c. Occupational Therapy
The Parent requested 23 hours of compensatory OT services. The hearing record clearly shows that the Student needs OT services to access his education and the DOE provided no evidence at all as to whether the Student received any OT between November 18, 2022 to April 25, 2023. It is undisputed that the Student’s November 18, 2022 IEP mandates individual OT two times per week for 30-minute sessions.[265] According to the evidence in the hearing record, while the Student “appears right hand dominant… he often displays immature hand dominance as he tends to switch hands during fine motor tasks. He presents with a 4-finger grasp on his writing utensil during coloring and writing tasks.”[266] In addition, the Student “requires maximal verbal prompts to draw a 3-inch-long single line through a 1-inch-wide path” and he requires maximal assistance for proper use of a scissor.[267] While the Student has made some progress with his cutting skills, “he has demonstrated moderate difficulty when opening and closing the scissor functionally.”[268] Therefore, there is ample evidence in the hearing record supporting a compensatory services award of OT and once again, the DOE has failed to provide any evidence that the number of hours requested or the rate requested is unreasonable. As such, I find the record supports this number of hours.
For the reasons explained above, I find that the record supports the Parent’s request for the compensatory services, and I order the services as outlined below.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby:
1. ORDERED that Parent’s claim for direct tuition funding for the student's unilateral placement at the Private School is GRANTED for the period of time the Student attended the Private School during the 2022-2023 school year. The New York City Department of Education shall directly pay the Private School in the amount of $26,438.75 within 15 days of the date of this Order.
2. ORDERED that the Department of Education shall provide to the Student, throughout the 2022-2023 school year, appropriate round-trip special education transportation between the Student’s residence and the Private School with pickup and drop off from the closest safe curb location. The DOE shall fund appropriate transportation consistent with this Order for any time the DOE fails to provide such transportation.
3. ORDERED that the Department of Education shall directly fund an independent neuropsychological evaluation by a provider chosen by the Parent, at a rate not to exceed
$5,500.00. The Department of Education shall pay the provider within 15 days of receipt of an invoice.
4. ORDERED that the Department of Education shall directly fund an independent speech-language evaluation by a provider chosen by the Parent, at a rate not to exceed $1,500.00.
The Department of Education shall pay the provider within 15 days of receipt of an invoice.
5. ORDERED that the Department of Education shall directly fund an independent occupational therapy evaluation by a provider chosen by the Parent, at a rate not to exceed
$1,500.00. The Department of Education shall pay the provider within 15 days of receipt of an invoice.
6. ORDERED that the Department of Education shall directly fund an independent physical therapy evaluation by a provider chosen by the Parent, at a rate not to exceed $1,500.00.
The Department of Education shall pay the provider within 15 days of receipt of an invoice.
7. ORDERED that the Department of Education shall directly fund compensatory services consisting of 23 hours of ABA supervision by a licensed BCBA and 230 hours of 1:1 instruction by an ABA-trained special education teacher by providers chosen by the Parent, at a rate not to exceed $250.00 per hour for BCBA supervision and $140.00 per hour for ABA-trained special education teacher services. The Department of Education shall pay the providers within 15 days of receipt of an invoice for the services rendered.
8. ORDERED that the Department of Education shall directly fund compensatory services consisting of 34.5 hours of individual speech-language therapy provided by a provider chosen by the Parent, at a rate not to exceed $210.00 per hour. The Department of Education shall pay the provider within 15 days of receipt of an invoice for the services rendered.
9. ORDERED that the Department of Education shall directly fund compensatory services consisting of 23 hours of individual occupational therapy provided by a provider chosen by the Parent, at a rate not exceed $210.00 per hour. The Department of Education shall pay the provider within 15 days of receipt of an invoice for the services rendered.
SO ORDERED.
DATED: August 18, 2023
Robin Levin, Esq.
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 B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Ten Day Notice/Impartial Hearing Request 4/5/2023 9 pages
B. Email to CSE [REDACTED] 4/5/2023 1 page
C. Parent referral letter Undated 1 page
D. Psychoeducational Evaluation Report 11/11/2022 8 pages
E. Sample IEP and PWN Various 5 pages
F. Social History Evaluation 10/4/2022 4 pages
G. Classroom Observation 11/17/2022 1 page
H. Individualized Education Program 11/18/2022 25 pages
I. Speech and Language Evaluation 11/21/2022 16 pages
J. Occupational Therapy Evaluation 11/22/2022 11 pages
K. Prior Written Notice/School Location Letter 12/6/2022 6 pages
L. [REDACTED] Admissions Letter 3/14/2023 1 page
M. [REDACTED] Tuition Affidavit 5/18/2023 1 page
N. Parental Guarantee of 2022-2023 Tuition 4/25/2023 2 pages
O. Daily Attendance Record 5/18/2023 1 page
P. Class Schedule 2022-2023 1 page
Q. [REDACTED] Brochure 2016 2 pages
R. [REDACTED] Flyer Undated 1 page
S. Academic 45-Day Report 5/18/2023 2 pages
T. Speech Therapy 45-Day Progress Report 5/31/2023 3 pages
U. Occupational Therapy 45-Day Progress Report 5/30/2023 2 pages
V. Functional Behavioral Assessment 6/2/2023 6 pages
W. Action Plan 6/2/2023 3 pages
X. Parent’s Public Assistance Screenshots Various 4 pages
Y. House Lease 11/17/2022 3 pages
Z. Emails Requesting Student Records Various 2 pages
AA. Affidavit of [REDACTED] 6/9/2023 2 pages
BB. Affidavit of [REDACTED] 6/7/2023 2 pages
CC. Rate Sheet for [REDACTED] Undated 2 pages
DD. Rate Sheet for [REDACTED] Undated 1 page
EE. Parent’s Record Request Various 2 pages
FF. Emails Requesting Student Records Various 3 pages
DOE EXHIBITS
None
IHO EXHIBITS
DEPARTMENT OF EDUCATION
I. – Closing Brief 8/01/2023 12 pages
II. Parent- Closing Brief 8/01/2023 31 pages
Footnotes
[1] Exhibits will be referred to as “Ex.” followed by lettered designations for Parents’ Exhibits, numbered designations for DOE’s Exhibits, and uppercase roman numeral designations for Impartial Hearing Officer’s Exhibits. Exhibit designations will be followed by the page numbers as needed and appropriate. For example, Parents’ Exhibit A, page 1, will be referred to as (Ex. A-1). Transcripts will be referred to as “Tr.” followed by the page number(s) within the transcript and the type of conference or hearing and/or dates as needed.
[2] Ex. H-1.
[3] Ex. A. The DPC also seeks payment of attorney’s fees, but since I do not have the authority to grant payment of attorney’s fees, this requested relief will not be discussed herein.
[4] Ex. A.
[5] Ex. A-2.
[6] Id.
[7] Ex. A-2-5.
[8] Ex. A-5.
[9] Id.
[10] Ex. A-5; Ex. M; Ex. N.
[11] Ex. A-5.
[12] Ex. A-5-6.
[23] DPH 6/13/2023 Tr. 13-14.
[24] DPH 6/13/2023 Tr. 97-98.
[25] See Order of Extension.
[26] The Parent arrived late the hearing after cross-examination of the Parent’s witness already commenced.
[27] DPH 6/23/2023 Tr. 107-124.
[28] DPH 6/23/2023 Tr. 128-140.
[29] Id.
[30] DPH 7/11/2023 Tr. 4.
[31] DPH 7/11/2023 Tr. 5-6; See Order of Extension 2.
[32] IHO Ex. I-12.
[33] IHO Ex. I-2.
[34] IHO Ex. I-4-5.
[35] IHO Ex. I- 5-11.
[36] IHO Ex. II-10.
[37] IHO Ex. II-10-21.
[38] IHO Ex. II-21-24.
[39] IHO Ex. II-25-29.
[40] Ex. A; Ex. D-1; Ex. F-2.
[41] Ex. J-1.
[42] Ex. D; Ex. H.
[43] Ex. D-1; Ex. F-1.
[44] Id.
[45] Id.
[46] Id.
[47] Ex. D-1.
[48] Ex. C.
[49] Ex. D-1; Ex. F-1.
[50] Ex. F-1.
[51] Ex. F-2.
[52] Ex. F.
[53] Ex. D.
[54] Ex. D-2.
[55] Ex. D-2-3.
[56] Ex. D-4-5.
[57] Ex. D-5-6.
[58] Id.
[59] Id.
[60] Id.
[61] Ex. J.
[62] Ex. J-2.
[63] Id.
[64] Ex. J-5-7.
[65] Ex. J-8.
[66] Ex. J-8-9.
[67] Ex. I.
[68] Ex. I-5.
[69] Ex. I-3.
[70] Id.
[71] Ex. I-10.
[72] Ex. 1-4.
[73] Ex. H.
[74] Ex. H-8.
[75] Ex. A-4.
[76] DPH 6/13/2023 Tr. 71-73, 77, 80-81.
[77] Ex. A-4.
[78] Ex. H-1.
[79] Ex. FF.
[80] Ex. H-17-18.
[81] DPH 6/13/2023 Tr. 87-88.
[82] Ex. H-17-18.
[83] Ex. K-6.
[84] Ex. A-5.
[85] Id.
[86] Id.
[87] Ex. H-1.
[88] Ex. L-1.
[89] Ex. A; Ex. B.
[90] Ex. N.
[91] Ex. N-1.
[92] Ex. M-1.
[93] Ex. X; Ex. Y.
[94] Ex. R-1.
[95] Ex. Q-1.
[96] DPH 6/13/2023 Tr. 24-25.
[97] Ex. Q-1.
[98] DPH 6/13/2023 Tr. 25
[99] DPH 6/13/2023 Tr. 52.
[100] DPH 6/13/2023 Tr. 28.
[101] Id.
[102] DPH 6/13/2023 Tr. 29.
[103] DPH 6/13/2023 Tr. 19.
[104] DPH 6/13/2023 Tr. 22-23.
[105] Ex. L-1; Ex. S-1.
[106] Ex. P-1.
[107] DPH 6/13/2023 Tr. 39.
[108] Id.
[109] Ex. S-2.
[110] Ex. S-1.
[111] Id.
[112] Id.
[113] Id.
[114] DPH 6/13/2023 Tr. 41-42.
[115] Id.
[116] Id.
[117] Id.
[118] DPH 6/13/2023 Tr. 34.
[119] Ex. T-1.
[120] Id.
[121] Ex. T-2.
[122] Id.
[123] DPH 6/13/2023 Tr. 47-48.
[124] Id.
[125] Ex. U-1.
[126] Id.
[127] Ex. U-1.
[128] Id.
[129] Ex. U-1-2.
[130] Ex. U-2.
[131] Ex. V; Ex. W. DPH 6/13/2023 Tr. 42-44.
[132] Ex. V-1.
[133] Id.
[134] Ex. V-2.
[135] Ex. W-1-2.
[136] DPH 6/13/2023 Tr. 51.
[137] Ex. A.
[138] 20 U.S.C. § 1412 (a)(1)(A); 34 C.F.R. §104.33(a); Education Law §§ 4402(2)(a), (b)(2).
[139] 34 C.F.R. §300.13.
[140] Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
[141] Oberti v. Board of Educ., 995 F.2d 1204 (3rd Cir. 1993).
[142] 20 U.S.C. §1415 (f)(3)(E)(ii); 34 C.F.R. §300.513(a)(2).
[143] Endrew F. v. Douglas County Sch. Dist. RE-1, 137 S.Ct. 988, 999 (2017).
[144] Cerra, 427 F.3d at 195, quoting Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 130 (2d Cir. 1998).
[145] Endrew F.,137 S.Ct. 988, 999.
[146] 34 C.F.R. §300.324(b)(1)(i); 8 N.Y.C.R.R. §200.4(e)(1)(ii); Davis v. Wappingers Cent. Sch. Dist., 772 F. Supp. 2d 500, 508 (S.D.N.Y. 2010).
[148] 34 C.F.R. § 300.320(a)(4); 8 N.Y.C.R.R. 200.4(d)(2)(v).
[149] See 8 N.Y.C.R.R. 200.4(e)(7); Application of a Child with a Disability, Appeal No. 08-087.
[150] J.L. v. New York City Dep't of Educ., 324 F. Supp. 3d 455, 467 (S.D.N.Y. 2018); Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Davis v. Wappingers Cent. Sch. Dist., 431 Fed. App. 12, 14 (2d Cir. 2011).
[151] R.E. ex rel. M.E. v. Brewster Cent. Sch. Dist., 180 F. Supp 3d 262, 268 (SDNY 2016).
[152] 34 CFR §300.11(c)(1).
[153] 20 USC §1414(a)(1)(B); 8 NYCRR §200.4.
[154] 34 CFR §300.301; 8 NYCRR §200.4(b).
[155] P v. West Hartford Bd of Ed., 885 F3d 735, 750 (2d Cir 2017).
[156] Id.
[157] NY Educ. Law § 4404(1)(c); M.P.G. v. New York City Dep’t of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).
[158] Ex. A-5-6.
[159] NY Educ. Law § 4404(1)(c).
[160] DPH 6/13/2023 Tr. 6, 10.
[161] Endrew F., 137 S.Ct. at 1002.
[162] Ex. A-2.
[163] Ex. Q; Ex. R; Ex. S; Ex. T; Ex. U; DPH 6/13/2023 Tr. 34, 39.
[164] Ex. A-5.
[165] Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 376 (2d Cir. 2014) (quoting Reyes ex rel. R.P. v. New York City Dep’t of Educ., 760 F.3d 211, 215 (2d Cir. 2014)).
[166] 20 U.S.C. § 1415(b)(6)(A).
[167] Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993).
[168] Ex. H.
[169] Ex. A-5; Ex. H.
[170] Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 (2d Cir. 2006); Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 (2d Cir. 2007).
[171] Frank G., 459 F.3d at 364-65; T.K. v. New York City Dept. of Educ., 810 F.3d 869, 878 (2d Cir. 2016); M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 105 (2d Cir. 2000).
[172] Frank G., 459 F.3d 356, 364; Gagliardo, 489 F.3d 105, 112.
[173] Gagliardo, 489 F.3d at 112.
[174] Gagliardo, 489 F.3d at 112, quoting Frank G., 459 F.3d 356, 364.
[175] 20 U.S.C. § 1401(29); Educ. Law § 4401(1); 34 C.F.R 300.39(a)(1); 8 N.Y.C.R.R. 200.1(ww); Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014).
[176] Frank G., 459 F.3d at 364; See Gagliardo, 489 F.3d at 112.
[177] IHO Ex. I.
[178] Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370.
[179] Gagliardo, 489 F.3d 105, 112,115; Walczak142 F.3d 119.
[180] Frank G., 459 F.3d at 365 (citing 20 U.S.C. § 1401(29)).
[181] Ex. Q; Ex. R; Ex. S; Ex. T; Ex. U; DPH 6/13/2023 Tr. 34, 39.
[182] Ex. Q-1.
[183] Id.
[184] Id.
[185] Ex. W-1-2.
[186] DPH 6/13/2023 Tr. 39.
[187] Id.
[188] Frank G., 459 F.3d at 364.
[189] DPH 6/13/2023 Tr. 25
[190] DPH 6/13/2023 Tr. 52.
[191] DPH 6/13/2023 Tr. 28.
[192] Id.
[193] DPH 6/13/2023 Tr. 29.
[194] Frank G., 459 F.3d at 365 (citing Knable, 238 F.3d at 768).
[195] Weaver v. Millbrook Cent. Sch. Dist., 812 F. Supp. 2d 514, 523 (S.D.N.Y. 2011).
[196] Ex. S-1.
[197] Id.
[198] Id.
[199] Id.
[200] DPH 6/13/2023 Tr. 34.
[201] Ex. T-2.
[202] Frank G., 459 F.3d at 364.
[203] See Carter, 510 U.S. at 16.
[204] J.S. v. Scarsdale Union Free Sch. Dist., 826 F.Supp.2d 635, 671 (S.D.N.Y. 2011).
[205] Forest Grove Sch. Dist. v. T.A., 557 U.S. 230, 246-47 (2009).
[206] Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560, at *6 (S.D.N.Y. Nov. 20, 2007).
[207] D.A. v. New York City Dep’t of Educ., 769 F. Supp. 2d 403, 419-20 (S.D.N.Y. 2011).
[208] E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 (2d Cir. 2014).
[209] Ex. C.
[210] Ex. H.
[211] M.H. v. N.Y.C. Dep’t of Educ., 685 F.3d 217, 254 (2d Cir. 2012).
[212] 34 C.F.R. § 300.148(d)(1)(ii); Ex. A; Ex. B-1.
[213] Ex. A.
[214] Ex. N.
[215] Ex. N-1.
[216] Ex. M-1.
[217] Ex. O.
[218] See e.g. Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) (Parents may seek direct funding in the instance in which, “due to a lack of financial resources, [parents of a student with a disability] have not made tuition payments but are legally obligated to do so”).
[219] Ex. N.
[220] Id.
[221] Connors v. Mills, 34 F.Supp.2d 795, 799, 805-06 (N.D.N.Y. 1998); See Mr. & Mrs. A. v. New York City Dep’t. of Educ., 769 F. Supp. 2d at 427 (Stating that where the Burlington factors are met, the court may award retroactive direct payment of private school tuition.)
[222] Ex. X; Ex. Y.
[223] Donald B. by Christine B. v. Board of Sch. Commissioners of Mobile County, Ala., 117 F.3d 1371, 1374 (11th Cir 1997) (citations omitted).
[224] Id. at 1375 (internal citations omitted).
[225] NYS Educ. Law §§ 4401(1); 4402(4)(a); See also NYS Educ. Law § 4401(2); 8 NYCRR § 200.1(ww).
[226] Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1160 (5th Cir. 1986).
[227] “Special Transportation for Students with Disabilities,” VESID Mem. [Mar. 2005], available at http://www.p12.nysed.gov/specialed/publications/policy/specialtrans.pdf).
[228] See Donald B., 117 F.3d at 1375.
[229] Ex. A-6.
[230] 8 NYCRR § 200.1(z).
[231] 20 U.S.C. § 1415 (b)(1); 34 C.F.R. § 300.502(b); 8 NYCRR § 200.5(g)(1); D.S. by M.S. and R.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 158 (2d Cir. 2020) (“[a] parent is entitled to a publicly funded IEE if the parent disagrees with an evaluation obtained by the public agency”) (internal quotation marks and citations omitted).
[232] Shaffer v. Weast, 546 U.S. 49, 60-61 (2005).
[233] 8 NYCRR § 200.5(g)(1)(i).
[234] 34 C.F.R. § 300.502(e)(1); 8 NYCRR § 200.5(g)(1)(ii); Letter to Kirby, 213 IDELR 233 (OSERS 1989).
[235] Board of Education of the County of Nicholas v. H.A., 445 F. App’x 660 (4th Cir. 2011).
[236] Letter of OSERS, 2002.
[237] Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[238] 8 NYCRR § 200.5(g)(1)(iii).
[239] 34 C.F.R. § 300.502(b)(2)(i)-(ii); 8 NYCRR § 200.5(g)(1)(iv).
[240] Ex. A.
[241] DPH 6/13/2023 Tr. 71-73, 77, 80-81.
[242] Ex. D-2-3; Ex. H.
[243] D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 165 (2d Cir. 2020).
[244] Id.
[245] Letter to Baus, 65 IDELR 81 (OSEP 2015); see also Letter to Carroll, 68 IDELR 279 (OSEP 2016).
[246] Ex. A.
[247] Ex. H-8.
[248] DPH 6/13/2023 Tr. 51.
[249] Letter to Kirby, 213 IDELR 233 (OSERS 1989).
[250] Ex. AA; Ex. BB; Ex. CC; Ex. DD.
[251] IHO Ex. II-28.
[252] See P. v. Newington Bd. Of Educ., 546 F.3d 111, 123 (2d Cir. 2008).
[253] Reid v. Dist. Of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); 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”).
[254] IHO Ex. I-2-4.
[255] See Application of a Child with a Disability, Appeal No. 14-014.
[256] Id.
[257] Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011)).
[258] Ex. S-2; DPH 6/13/2023 Tr. 34.
[259] Ex. H-18.
[260] Id.
[261] Ex. T-2.
[262] Id.
[263] DPH 6/13/2023 Tr. 47-48.
[264] Id.
[265] Ex. H-18.
[266] Ex. U-1.
[267] Id.
[268] Id.