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CASE NUMBER: 600452 - NYC: 248788
FINDINGS OF FACT AND DECISION
Student’s Name: Redacted (“Student”)
Date of Birth: Redacted
School District: NYC DOE
Hearing Requested by: Redacted (“Parent(s)”)
Request Date/Date Complaint Filed: 6/6/2023
Date(s) of Hearing: 8/7/2023
Actual Record Closed Date: 08/29/2023
Date of Decision: 08/30/2023 Time Sensitive No Hearing Officer: Daniel M. Hochbaum
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”), the New York Education Law, and Section 504 of the Rehabilitation Act of 1973. This case concerns Student, a redacted-year-old student with a disability in the NYC Department of Education (“DOE”). Ex. W:1. In the Parent’s Due Process Complaint (“DPC”), the Parent alleged that the DOE failed to provide the Student a Free Appropriate Public Education (“FAPE”) for the 2021-2022 and 2022-2023 school years. Ex. A.
The Parent requests that I order the DOE to: (1) reimburse the Parent $10,000 for money spent on counseling from 1/2022-4/2023, (2) pay for a private residential school (the “Private School”) (including
Speech-Language Therapy, Counseling, and Occupational Therapy) as compensatory services for 12-months, (3) reimburse the Parent for mileage and tolls for visits to the Student and for the Student’s trips to and from the Private School, (4) reimburse the Parents for additional compensatory Counseling they obtained between 5/2023-6/2023, and (5) extend the Student’s eligibility for a FAPE, as well as the opportunity to earn a regular high school diploma for six months past the date on which he will turn twenty-two if he has not already earned a regular education diploma by that date. IHO Ex. V:14-15. Given the Student’s prior difficulties, the Parent further requests a flexible remedy in the event the Student is unable to remain at the Private School, and specifically requests: (6) five hours per day of compensatory education, one our per week of Counseling, one hour per week of Speech-Language Therapy and one our per week of Occupational Therapy for any week that the Student is not enrolled at the Private School, or (7) that the Parent be permitted to convert these hours into tuition at an alternative private school based on a conversion rate of $200 per hour for each of the hours of compensatory education for however many hours are awarded. Id at 15-16.
As discussed below, the DOE conceded that it denied the Student a FAPE for the 2021-2022 and 2022-2023 school years. For the reasons stated below, I grant the relief as outlined by the Parent.
PROCEDURAL HISTORY
The Parent filed this case on 6/6/2023. Ex. A:1. The DOE appointed me to hear this case on 6/8/2023.
On 6/9/2023, the Parent’s attorney requested leave to file a motion to compel the DOE to respond to the DPC consistent with the IDEA’s requirements. IHO Ex. II:8. I granted the Parent’s request for leave to file a motion to compel. Id at 4. On 6/21/2023, the Parent filed the Motion to Compel. IHO Ex. III. On 6/23/2023, I emailed the DOE at two centralized inboxes and CC’ed the DOE’s Attorney/case contact in the DOE’s case management system explaining that I received the motion and that the DOE had until close of business on 6/26/2023 to respond. IHO Ex. II:1. The DOE did not file a response to the motion or respond in any way. On 7/5/2023, I ordered the DOE to respond to the DPC, but the DOE did not comply with the Order.
I conducted a Pre-Hearing Conference (“PHC”) 7/5/2023. Tr. 2. The DOE’s attorney did not appear at the PHC. Tr. 3. I set hearing dates for 7/17/23 and 7/19/23. Tr. 33-34.
On 7/13/2023, the DOE’s attorney emailed explaining that he was experiencing an extremely serious health condition and was seeking a delay of the hearing. IHO Ex. IV:15. The Parent’s attorney agreed to a delay of the hearing.
Given that the DOE did not submit a proper response to the DPC, did not comply with the Order to Compel, and did not participate in the PHC, I set a deadline of 7/21/2023 for the DOE to email me its position (whether it would be arguing that it provided the Student with a FAPE) or else I would treat the DOE as conceding that it denied the Student a FAPE for the years at issue. IHO Ex. IV:1. The DOE did not respond by the deadline.
I held a hearing on 8/7/2023. Tr. 54. At the hearing, the DOE did not enter any exhibits into evidence or call any witnesses to testify. Tr. 59, 66. I offered the Doe the opportunity to submit a closing brief, but the DOE did not submit a closing brief. Tr. 109-110.
The Parent’s attorney delivered a detailed opening statement recounting the Student’s educational history and the ways in which the Parent alleges he was denied a FAPE. Tr. 67. The Parent entered into evidence exhibits A-X.[1] Tr. 65. The Parent’s attorney submitted two affidavits containing the testimony of the Parent and a Director from the Private School. Ex. V, W. The DOE cross examined both witnesses. Tr. 85, 102. The Parent submitted a closing brief on 8/16/2023. IHO Ex. V.
FINDINGS OF FACT
In this case, the Parties did not dispute any material fact concerning the provision of a FAPE to the Student. As such, I will provide an abbreviated recitation of the relevant facts, and I refer the reader to more complete recitations in the Parent’s DPC and affidavit.
The Student is currently redacted years old. Ex. W:1. The Student was eligible for special education during both years at issue in this case. Id at 6-13. On 4/11/2023, the DOE classified the Student with Autism. Ex. R:1.
The Student has a variety of disabilities and has been diagnosed with Autism Spectrum Disorder, (Moderate Without accompanying intellectual impairment, and Without accompanying language impairment), Generalized Anxiety Disorder, and Attention-Deficit/Hyperactivity Disorder (“ADHD”), Combined Presentation, Mild. Ex. L:13. The Student has also been diagnosed with redacted. Ex. W:1; L:13.
According to a 2022 Neuropsychological evaluation, the Student struggles with reading comprehension when asked to use inferential skills, his writing skills are somewhat below average, he has deficits in social communication and social interaction from restricted, repetitive patterns of behavior, interests, and activities, and he has a negative self-image and anxiety. Ex. L:11, 12, 13. The Student also has “perseverative anxieties and concerns” that can cause him to become extremely dysregulated. Ex. W:2. For example, when the Student sees or hears things that he perceives to be “adult content,” he can become scared and anxious as he “organizes his life around what is appropriate or inappropriate for different age groups.” Id. Likewise, when he is placed with children that he perceives as severely disabled and/or not socially typical, he is afraid that such peers can model for him a lower level of functioning. Id. Additionally, the evidence showed that he has extreme sensitivity to noise, significant sensory integration issues, and physical delays, including poor body coordination. Id at 2-3. Despite the Student’s delays in academics, socialization, and pragmatic language, he “has the cognitive ability to pursue a regular high school diploma.” Id at 6.
The Student has a long and complicated school history. Prior to the 2021-2022 school year, the Student attended Private School #2. Id at 5. However, during the 2019-2020 school year, the Parents told the DOE that they wanted a different placement and began searching for other schools, including DOE schools. Id. At that time, the Student expressed that his sense of self was impacted by being in a placement exclusively for children with autism and who had autistic behaviors and social skills. Id at 8. Additionally, the Student started to become frightened when he was around other students’ dysregulated behaviors. Id.
On 1/28/2021 the DOE held an IEP meeting and recommended a 12:1:1 class for 25 periods per week, with the rest of the time in general education. Id at 6. The IEP did not offer 12-month services for summer 2021. Id. Moreover, the Student was transitioning into high school for the 2021-2022 school year, but the DOE only offered the Student a middle school placement, and never offered a high school setting. Id at 7.
Over the course of the 2021-2022 school year, the Student struggled and eventually decompensated. Starting in 1/2022, the Parents began paying for the Student to see a private therapist (the “Counselor”) at an out-of-pocket cost (post insurance reimbursement) of $125 per session. Id at 9. Later, the Student’s mental health needs became so intense that he was hospitalized from 3/9/2022-3/24/2022. Id at 9-10. The Student’s doctor summarized these events as a “6 month-long decompensation marked by impulsive behaviors, restlessness, ruminative anxiety and depressive mood reactive to school stressors.” Ex. H:3.
Following the hospitalization, the Parents requested home instruction for the Student, and the Student remained on home instruction for the rest of the 2021-2022 school year. Ex. W:10. During home instruction, the Student received on average two hours of instruction per school day. Id. The DOE did not provide the Student with any Occupational Therapy, Speech-Language Therapy, or Counseling as required by his IEP. Id.
On 8/17/2022, the DOE held another IEP meeting and recommended a 15:1 special education class in a community high school. Id at 11. The DOE also recommended a 1:1 paraprofessional. Id. Neither party offered the IEP as an exhibit, but the Parent testified that he understood that the Student would still receive Occupational Therapy, Speech-Language Therapy, and Counseling under the IEP. Id. Notably, the DOE developed the IEP towards the end of the summer, and the prior IEP that was in effect for summer 2022 did not include 12-month services. Id at 10.
The DOE required the Parent to reapply for home instruction for the 2022-2023 school year. Id at
11. The Parent reapplied. Id. The DOE approved the home instruction at the end of 9/2022. Id. As a result, the Student missed instruction during 9/2022. Id.
On 9/18/2022, the Parent received a document offering the Student placement at a DOE public school. Id at 12. However, the placement did not have a 15:1 classroom as recommended on the IEP. Id.
During January 2023, the Parent requested an IEP meeting to discuss placing the Student in a non-public school. Id. On 4/11/2023, the DOE held an IEP meeting to discuss this request. Id. At the meeting, the Parent requested a residential program. Id. The DOE rejected this request and recommended a Non-Public School (“NPS”) day program with an 8:1:1 class, a paraprofessional, and an interim placement of an ICT Classroom. Id at 14.
On 5/16/2023, the Parent took the Student to visit NPS #1. Id at 15. NPS #1 was not able to accept the Student until either July or September 2023. Id at 18. Additionally, NPS #1 offered an 8:1:1 class for certain topics, but a 12:1:1 ratio for elective subjects, which was not consistent with the 4/11/2023 IEP. Id.
On 6/15/2023, the Parent signed a contract with the Private School for the Student to attend school there beginning on 7/2/2023. Id at 20. The Parent paid a $5,000 deposit to the Private School. Id.
The Private School is a co-educational boarding school for students with language-based learning disabilities. Ex. V:2. Private School #1 is approved through the New York State Education Department as a Registered Boarding School. Id. The School admits students from 11-23 years old. Id. Students at the school have low IQs and exhibit slow processing speed, working memory, and low executive functioning skills. Id. All students in the school have a disability, but many students have “typically developed or close to typically developed” communication and social skills. Id.
The Private School provides students with small-group instruction to give individualized assistance to each student. Id. The school works with students to develop self-awareness and social skills to participate appropriately in the community. Id. The school also provides a peer-support system consisting of companionship, friendship, and support. Id. The school also provides related services, including Speech-Language Therapy, Counseling, and Occupational Therapy, either directly or through contractors. Id at 4. The cost of Speech-Language Therapy is included within the cost of the program, but Counseling (typically $100-$200 per session) and Occupational Therapy ($180 per hour) are supplemental. Id.
CONCLUSIONS OF LAW AND ANALYSIS
This case concerns the DOE’s alleged failure to provide the Student with a FAPE for two school years. In the DPC, the Parent alleged that the DOE failed to: (1) recommend an appropriate program in the 1/28/2021 IEP, (2) recommend 12-month/ESY services for summer 2021, (3) offer the Student an appropriate high school placement for the 2021-2022 school year, (4) provide credit bearing home instruction at points during the period the Student received home instruction, (5) recommend 12-month/ESY services for summer 2022, (6) recommend an appropriate program in the 8/17/2022 IEP, (7) timely provide the Student home instruction in 9/2022, (8) offer the Student a placement capable of implementing the 8/17/2022 IEP, (9) offer the student an appropriate program in the 4/2023 IEP, (10) offer a placement capable of implementing the 4/2023 IEP, and (11) provide the Student with his required related services during home instruction. Ex. A.
A. Claims under IDEA The IDEA states that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). To provide a Student with a FAPE, a school district must develop an IEP that consists of specialized instruction and related services designed to meet a student’s unique needs and must then implement the services in the IEP. 34 C.F.R. § 300.13. The law states that a school district offers a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and
(b) the IEP is developed through the IDEA’s procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).
A district offers a FAPE “by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction.” See Rowley, 458 U.S. at 203. 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.” See Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 (2017). 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.” Id.
In IDEA due process hearings in New York, school districts have the burden to show that they provided the Student with a FAPE. 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). The DOE did not deny any of the Parent’s allegations, failed to enter any documents or evidence to show that it provided the Student with a FAPE, and constructively conceded that it denied the Student a FAPE for the two school years by not properly responding to the DPC, complying with the Order to Compel, or providing its position to me via email by the deadline I set. Tr. 59, 66; IHO Ex. IV:1. Therefore, I find that the DOE did not carry its burden and denied the Student a FAPE for the 2021-2022 and 2022-2023 school years.
B. Claims under Section 504
Section 504 prohibits discrimination against qualified students with a disability. 29 U.S.C. § 794(a). Section 504 states, “[n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
Section 504 requires that school districts provide qualified students with a “free appropriate public education… regardless of the nature or severity of the person’s [disability].” 34 C.F.R. § 104.33(a). Under Section 504, an appropriate education means “the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of [] persons [with disabilities] as adequately as the needs of [] persons [without disabilities] are met and (ii) are based upon adherence to [504’s] procedures.” 34 C.F.R. § 104.33(b).
Under Section 504, an individual with a disability includes any person who “(i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having an impairment.” 34 C.F.R. § 104.3(j)(1). However, only students who have a substantial limitation of a major life activity are entitled to a FAPE. 29 U.S.C. § 705(20)(B)(i); 42 U.S.C. § 12102(2). Section 504 and the Americans with Disabilities Act share the same non-exhaustive list of major life activities, which include seeing, hearing, eating, walking, standing, sitting, speaking, learning, reading, concentrating, thinking, writing, and communicating, among others. See 28 C.F.R. § 35.108(c)(1)(ii).
A student’s parents bear the burden of proof, both in production and persuasion, on any claim under Section 504. See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).
In this case, the record clearly demonstrates that the Student was an individual with a disability based on his multiple diagnoses and receipt of an IEP. Ex. W:1; L:13: R:1. At a minimum, the Student has a physical or mental impairment that substantially limited him in the areas of learning, reading, concentrating, thinking, writing, and communicating. Ex. L:13. Additionally, as I noted above, when the DOE did not provide a proper response to the DPC, comply with the Order to Compel, or participate in the Pre-Hearing Conference, I sent an email stating that unless the DOE provided its position in the case by 7/21/2023, I would treat the DOE’s silence as its concession that it denied the Student a FAPE. IHO Ex. IV:1. The DOE did not respond by the deadline, and therefore I find that the DOE denied the Student a FAPE under Section 504 in the manner alleged by the Parent. Additionally, I find the Parent’s testimony persuasive that the DOE failed to offer sufficiently supportive classroom programs to the Student for both years at issue, failed to offer placements that could implement the IEPs, failed to provide credit bearing instruction for the entirety of his time on home instruction, improperly delayed providing home instruction in 9/2022 (leading to a loss in services), and failed to provide the Student with necessary related services during home instruction. Ex. W:5-23.
C. Remedies
In this case, the Parent requested multiple remedies for the DOE’s failure to provide the Student with a FAPE.
A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education 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[.]” 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”).
Under New York’s statute implementing the IDEA, the DOE bears the burden with respect to the remedies. NY Educ. Law § 4404(1)(c). Additionally, even where the DOE admits that it did not provide a FAPE, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district’s failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). “It is not persuasive for the district 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 district's failure to provide the student with a FAPE.” Id. Under Section 504, the Parent bears the burden with respect to the remedies, and I will apply this burden to the Parent only if necessary. See e.g., Mrs. C. v. Wheaton, 916 F.2d 69, 74 (2d Cir. 1990); S.W. by J.W. v. Warren, 528 F. Supp. 2d 282, 290 (S.D.N.Y. 2007).
I will discuss each of the Parent’s requests in the sections that follow.
1. Reimbursement for Counseling from 1/2022-4/2023
The Parent requested that I order the DOE to reimburse him $10,000 for money spent on Counseling from 1/2022-4/2023. IHO Ex. V:14. As discussed above, the Parent initially obtained private
Counseling beginning in 1/2022, during a period of time when they had already informed the DOE that they believed the Student’s program and placement were inappropriate, and just before the Student was hospitalized. Ex. W:9. These sessions then continued during a period of time in which the DOE did not provide the Student with Counseling while on home instruction. Ex. W:10. The Parent explained that he obtained private Counseling for the Student at a cost of $250 per hour, but that the unreimbursed cost after insurance was $125 per session, and the Parent provided the relevant receipts. Ex. W:9, F:1-17.
The DOE did not oppose this request in any way, and therefore did not carry its burden under the IDEA. Tr. 59, 66-67; IHO Ex. IV:1. I agree that this Counseling serves as a partial “replacement of educational services the child should have received in the first place,” and award reimbursement to the parent as outlined in the Order below. Reid, 401 F.3d at 518.
2. Tuition to Private School #1 as Compensatory Relief
The Parent also requested that I order the DOE to pay for the Student’s tuition to Private School #1, including Speech-Language Therapy, Counseling, and Occupational Therapy, as compensatory services. IHO Ex. V:14-15.
As an initial matter, the Parent cited multiple cases supporting the proposition that IDEA hearing officers may award tuition as compensatory relief. See e.g., Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008); Spring Branch Independent School District v. O.W. by Hannah W., 961 F.3d 781 (5th Cir. 2020); I.S. ex rel. Sepiol v. School Town of Munster, 2014 WL 4449898 (N.D.Ind. 2014); Regional School Unit 51 v. Doe, 920 F.Supp.2d 168 (D.Me. 2013); Ferren C. v. School Dist. of Philadelphia, 595 F.Supp.2d 566 (E.D. Pa. 2009); C.L. ex rel. K.B. v. Mars Area School Dist., 2015 WL 3968343 (W.D.Pa. 2015). In Draper, for example, the court awarded tuition to a private school as compensatory relief for three years of IDEA violations and allowed the Student to remain there for multiple school years or until the student received a diploma (whichever came first). Draper, 518 F.3d at 1283-84, 1289. As a result, I agree with the Parent that tuition to the Private School for the 12-month 2023-2024 school year is an available compensatory remedy.
The DOE did not oppose the Parent’s request for tuition to the Private School, and I agree that the Private School is, as best we know at the moment, appropriate compensatory relief for the Student. Tr. 59, 66-67. As the record showed, the Student has a complex educational history with the potential to earn a high school diploma, but with social, behavioral, sensory, attention, and communication difficulties (and periods of deep social-emotional challenges) and has, as the Parent stated, been “difficult to place.” Ex. W:3. However, the Private School offers an environment and services that the Student needs to get him back on track toward a diploma, and I will discuss some of the factors that make it an appropriate compensatory program.
First, the Student’s Counselor endorsed the program as an appropriate option. Ex. P:2-3. In a letter, the Counselor stated that she “believe[s] that [the Student] needs immersive exposure to a structured school-day and extended day/residential program to address a comprehensive [approach] appropriate to developing functional skills (homework completion, social skills, and activates of daily living, development of independent living skills and community navigation), independent leisure skills and have exposure to a curriculum that will prepare him for college academics and college life.” Id at 3. As such, there is expert support for the program from an individual familiar with the Student.
Second, the Private School is able to support the Student’s social-emotional needs. The Student previously expressed that being segregated in a program with children who have severe social, cognitive and behavioral delays is a trigger for his psychological regression and impacts on his self-esteem. Ex. R:33. Likewise, the Neuropsychologist who evaluated the Student in 2022 stated that “[i]t is imperative that [the Student] is not placed in a classroom setting with children who have disruptive and externalizing behaviors, as this will impede his academic, social, and emotional development.” Ex. L:14. As the Director stated, many of the students at the school have typically developed or close to typically developed communication and social skills. Ex. V:4. Additionally, the Student visited the school and the Counselor relayed that the Student “was able to make a strong connection to [the] School” and that he “learned the routine, enjoyed classes, played a team sport, engaged in group leisure activities, enjoyed mealtimes with other students, and made friends.” Ex. P:2-3. For a Student who was isolated from peers while on home instruction and who previously stated that he wanted to be around typically developing students (as opposed to in a program entirely for students with Autism), the fact that the Student was “excited by the prospect of going to school there with socially typical peers” is evidence that the Private School is a school the Student will reliably attend and one which can nurture his social-emotional needs. Id.
Third, the Private School will serve as appropriate compensatory relief for the Student as it will provide the Student an opportunity to earn a regular high school diploma. The Neuropsychologist recommended that the Student “be enrolled in a school that affords him access to the general education curriculum with the goal of earning a regular diploma that also provides access to both appropriate peers and peer models for communication and social skills.” Ex. L:14. Likewise, the Counselor stated that the Student should have “access to [a] college preparation curriculum.” Ex. P:2. The information in the record, both in the Director’s testimony and based on the course schedule, shows that the Private School can provide this opportunity at earning credit toward a diploma. Ex. V:6; C:1; D:1. This is particularly important as compensation because the Student was denied credit bearing instruction while on home instruction.
Fourth, the Private School is an appropriate remedy for the denial of FAPE during the 2021-2022 and 2022-2023 school years because it can provide or facilitate related services alongside the high school curriculum. Ex. V:4-5. The Student’s most recent IEP recommended Counseling, Speech-Language Therapy, and Occupational Therapy. Ex. R:25-26. While the Private School provides mentorship by staff (which focuses mainly on executive functioning support, transition to the program and adjustments) on a weekly basis, the school also facilitates Counseling via independent therapists and is willing to work with either the Student’s current therapist or another therapist to provide Counseling to the Student. Ex. V:4; Tr. 88-89. The Private School also provides Speech-Language Therapy as part of the overall tuition price, although the therapy is provided by an independent contractor. Ex. V:4. Finally, the school allows students to see a local occupational therapist who charges $180 per hour, and either the districts directly pay the occupational therapist or the parents pay her directly. Id. According to the Parent’s testimony, the 8/2022 IEP contained the following related services:
- Counseling 1x 45 (1:1) - Counseling 1x45 (group)
- Occupational Therapy 2x45 (1:1) - Occupational Therapy 2x45 (group)
- Speech-Language Therapy 1x45 (1:1) - Speech-Language Therapy 2x45 (group)
Ex. W:22. The most recent IEP contained reductions in sessions per week and time per session for some of the services, but the DOE did not defend the reductions in the related services in the 4/2023 IEP during the hearing. Ex. R:25-26; Tr. 59, 66-67. As such, the DOE did not carry its burden. Related services are services that are “required to assist a child with a disability to benefit from special education” and, as such, I find that the Student will need these related services in order to benefit from the compensatory instruction at the Private School.[2] 34 C.F.R. § 300.34. Therefore, I order the tuition to the Private School and the related services at the levels in the 8/2022 IEP on a 12-month basis as part of the compensatory award needed to put the Student back in the position he would have been in but for the denial of FAPE. The specifics are detailed in the Order below.
3. Reimbursement for Parent and Student for travel to and from the Private School The Parent further requested that I order the DOE to reimburse the parents for mileage and tolls for visits to the Student and for the Student’s trips to and from the Private School. IHO Ex. V:14.
State law contains provisions related to payment for transportation of student and escort to and from a residential placement which, while not directly applicable here (because this is a compensatory case and does not involve placement of the Student through an IEP), are nonetheless a useful guide. When a student is placed at a residential program through their IEP, a school district must pay for trips for the student to and from the residential school. 8 NYCRR § 200.12(a). Specifically, a district must pay for the following (with assistance from the State): transportation of the student from the student’s home to the school at the commencement of the school year, from the school to the student’s home at the conclusion of the school year, and no more than…four additional trips to and from school for students enrolled in receiving a 12-month special service and/or program, except as additional trips may need to be provided for the periods during which residential care is not provided to the students attending such school.
Id. Additionally, state law requires a school district to pay for “expenditures for the costs of travel, lodging and meals incurred by a volunteer escort…if the escort is required by the student’s individualized education program.” 8 NYCRR § 200.12(b).
The DOE did not express a position related to cost of travel to and from the school or the number of trips that would be appropriate and, therefore, did not carry its burden. Tr. 59, 66-67. I believe that reimbursement for the cost of transportation for the Parent 3 and Student to and from the residential placement is equitable compensatory relief in light of the compensatory award of tuition to the Private School. I note that while the Parent is not a “volunteer escort” as envisioned by the regulation, I am not bound by the regulation while ordering compensatory relief. I also note that while the regulation covers the cost of “travel, lodging and meals,” the Parent has only asked for reimbursement for travel (mileage and tolls) which is entirely reasonable. IHO Ex. V:14. As outlined in the Order below, I order the DOE to directly pay for or reimburse the Parent for the Student’s transportation (1) from the Student’s home to the school at the beginning of the year, (2) from the school to the student’s home at the conclusion of the school year, (3) to and from the school for four additional trips during the 12 month year, (4) additional trips as may need to be provided for the periods during which residential care is not provided to the students attending the school, and (5) additional trips related to the Student’s social-emotional needs as recommended by either the Student’s counselor or the Director. Additionally, I order the DOE to directly pay for or reimburse the Parent for the Parent’s trips (1) accompanying the Student to or from the School and (2) to visit the Student as recommended by either the Student’s counselor or the Director, as outlined below.
4. Reimbursement for Counseling from 5/2023-6/2023
The Parent further requested reimbursement for Counseling, upon submission of invoices and proof of payment, for any sessions the Student received from 5/2023-6/2023. IHO Ex. V:14. As discussed above, there was no evidence that the DOE provided Counseling to the Student during remote instruction. Tr. 59, 66-67; Ex. W:10. Additionally, although the DOE recommended an NPS on the 4/2023 IEP, the actual NPS to which the DOE referred the Student stated that the Student could not begin attending until either summer or fall 2023. Ex. W:18. Additionally, the DOE did not present any information opposing the Parent’s request for this reimbursement, and I award reimbursement as outlined in the Order below.
5. Extended eligibility
The Parent also requested that I “extend the Student’s eligibility for a FAPE, as well as the opportunity to earn a regular high school diploma for six months past the date on which he will turn twenty-two if he has not already earned a regular education diploma by that date.” IHO Ex. V:15.
According to Second Circuit IDEA case law, courts have the authority to extend a student’s IDEA eligibility if the district committed a gross violation of the IDEA which resulted in the denial of, or exclusion from, educational services for a substantial period of time. See Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 n.15 (2d Cir. 2015); French v. New York State Dep’t of Educ., 476 Fed. App'x 468, 471 (2d Cir. Nov. [3], 2011); Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 n.2, 113 n.6 (2d Cir. 2008); Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); Burr v. Ambach, 863 F.2d 1071, 1078-79 (2d Cir. 1988), aff'd on reconsideration sub nom., Burr v. Sobol, 888 F.2d 258 (2d Cir. 1989); Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001)). At least one court has held that when a student misses critical time that the student should have had access to instruction and courses necessary for the student to earn a diploma, an extension of eligibility is also appropriate relief. M.W. v. NYC Dep’t of Educ., 2015 WL 5025368 (S.D.N.Y. August 25, 2015). In other words, even where the student is ineligible for services under the IDEA because they have aged-out of school or graduated, an IHO may require a district to educate them and provide a FAPE under limited circumstances.
In this case, the DOE committed gross violations of the IDEA which resulted in the denial of, or exclusion from, educational services for two school years. As discussed above, the DOE failed to offer sufficiently supportive classroom programs to the Student for both years at issue, failed to offer placements that could implement the IEPs, failed to provide credit bearing instruction at all times when the Student was on home instruction, improperly delayed providing home instruction in 9/2022 (leading to a loss in services), and failed to provide the Student with necessary related services during home instruction. Ex. W:6, 7, 10, 11, 12, 18, 19. These violations were particularly egregious in light of the Parent’s repeated pleas to the DOE and efforts to obtain appropriate services and in light of the Student’s clear and ongoing crisis. Id at 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 18, 19. To fail to provide Counseling, for example, to a recently hospitalized student is shocking. Id at 9-10. Likewise, to fail to offer the Student credit bearing work left the Student spinning his wheels and no closer to his goal of graduating with a high school diploma. Id at 10. Finally, to fail to offer placements that could implement the class ratios on the Student’s IEP is bureaucracy at its worst and resulted in the Student remaining segregated and isolated from his peers, which is antithetical to the law’s dual purposes of an appropriate education in the least restrictive environment. Ex. W:11, 12, 16; 34 C.F.R. §§ 300.17, 300.114(a). I believe that these gross violations clearly merit an extension of the Student’s IDEA eligibility as the Parent proposes.
Some courts have held that it may be improper to award extended eligibility to a student years in advance of the expiration of their eligibility by reason of age or graduation, but I reject that argument in this case. See Application of the New York City Department of Education, Appeal No. 23-105 (SRO NY 2023). First, in this case, the Student’s rights were grossly violated, and if one were to delay relief until the Student is closer to age 22 to see if the Student “needs” extended eligibility in order to have chance at graduating, it would be too late as the statute of limitations on these violations will have run. 34 C.F.R. § 300.507. Second, the remedy I am ordering is contingent; if the Student graduates, then he will not be entitled to extended eligibility. Third, I believe this case is distinguishable from other cases, like Appeal No. 23-105, because in that case the Student “made gradual progress” despite the violations whereas in this case there was no evidence that the Student made progress in light of his circumstances. Application of the New York City Department of Education, Appeal No. 23-105 (SRO NY 2023). Finally, if the DOE wished to argue against an extended eligibility award, it should have either defended its provision of FAPE or filed a closing brief[4] arguing against the Parent’s request for extended eligibility, but it did not do so.
I am also awarding this relief under Section 504. A Section 504 claim predicated on the denial of a FAPE “requires proof of bad faith or gross misjudgment.” C.L. v. Scarsdale Union Free Sch. Dist., 744 F.3d 826, 841 (2d Cir. 2014). This case is somewhat analogous to R.B. ex rel. L.B. v. Bd. of Educ., a case in which the Plaintiffs survived a motion for summary judgment and met the “bad faith and gross misjudgment” standard where they alleged that the district failed to take any action to implement the Student’s IEP from May to September and failed to timely implement an Interim Service Plan. 99 F. Supp. 2d 411, 419 (S.D.N.Y. 2000). Rather than repeating all of the instances of gross misjudgment discussed in the IDEA sections above, I will simply highlight a few of the worst violations related to this Student that warrant extended eligibility under 504. Here, it was gross misjudgment for the DOE to fail to confirm that the schools that it offered the Student had the class ratios available to implement the Student’s IEPs (actions that ultimately left the Student on home instruction and out of classrooms with peers). Ex. W:11, 12, 16. Likewise, it was gross misjudgment for the DOE to fail to provide the Student with the related services on the Student’s IEPs while the Student was on home instruction. Id at 10. This is especially true of Counseling, which was a service the Student needed due to his fragile social-emotional state. Id. As a result of these violations of Section 504, I believe that the Student’s eligibility should be extended and order it in the section below.
6. Flexible compensatory services
The Parent further requested a flexible remedy in the event the Student is unable to remain at the Private School. IHO Ex. V:15. Essentially, the Parent argued that because the Student has been difficult to place and there is no way of being totally certain that the Student will be able to remain at the Private School, the Student should be entitled to other, contingent compensatory services if circumstances change. Specifically the Parent requested five hours per day of compensatory education, one our per week of Counseling, one hour per week of Speech-Language Therapy and one our per week of Occupational Therapy for any week that the Student is not enrolled at the Private School, or that the Parent be permitted to convert these hours into tuition at an alternative private school based on a conversion rate of $200 per hour rate for each of the hours of compensatory education for however many hours are awarded. Id.
Compensatory awards are uniquely challenging to craft because they require an IHO to look into the future and make a best guess as to what it will take for the Student to be returned to the position they would have been in but for the denial of FAPE. Of course, there are a wide array of factors that could complicate matters when an IHO, looking at conditions in the present, attempts to design an award that will be used slowly, over time, in the future. However, the law is clear that compensatory education awards must be “reasonably calculated” to compensate the student. Reid, 401 F.3d at 524. In this case, the evidence showed that the Student has a remarkably challenging profile and that the Parent has been attempting to locate an appropriate school where the Student can succeed for years. Ex. W: 4, 5, 6, 7, 9, 10, 11, 12, 13, 14, 15, 18, 19. It is also clear that the Student is new to the Private School, and while he has been successful there thus far, there is no guarantee that this will continue for the entirety of the 12 months at the school that I awarded as compensatory service above. Tr. 100-01. It would be a meaningless award if I were to lock the Student into one compensatory provider (the Private School) and he were opportunity to respond, but the DOE then chose not to file a closing brief and oppose the request for extended eligibility. Tr. 109-114. unable to continue there due to his disability. Instead, seeing the record before me, it makes the most sense to hope for the best but plan for multiple potential outcomes that will still compensate the Student for the past denial of FAPE.
Once again, the DOE failed to carry its burden with respect to this remedy when it did not oppose the Parent’s proposed flexible compensatory remedy or present any facts or case law to show that this remedy would be inappropriate. I find the Parent’s requests reasonable as five hours per day of compensatory education, one our per week of Counseling, one hour per week of Speech-Language Therapy and one hour per week of Occupational Therapy is similar to what the Student should have received in any one school year if attending full time. Likewise, I think the alternative (that the Parent be permitted to convert these hours into tuition at an alternative private school based on a conversion rate of $200 per hour) is also reasonable and essentially amounts to 25 hours of academics (5 hours per day, 5 hours per week), plus 3 hours per week of related services, totaling $5,600 per week (28 hours x $200). As such, I order that these remedies be provided to the Student as compensatory relief if the Student is no longer able to attend the Private School between now and 6/30/2024.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
1. The DOE shall, within 35 days of this Order, assign an individual from its Impartial Hearing Order Implementation Unit (“IHOIU”) to serve as a contact person for the Parent regarding the implementation of this Order. The IHOIU contact person shall provide their name, direct phone number, and email address to the Parent and the Parent’s attorney within 35 days of the date of this order. The contact person shall respond to any inquiry by the Parent (or their attorney) concerning the implementation of this order within 2 business days.
2. Within 35 days, the DOE shall reimburse the Parent $10,000 for the cost of Counseling obtained from 1/2022-4/2023.
3. The DOE shall pay for the Student’s 12-month 2023-2024 tuition (inclusive of Speech-Language Therapy) to the Private School. Within 35 days, the DOE shall reimburse the Parent $5,000 for the deposit he paid to the Private School. Within 35 days, the DOE shall directly pay the Private School the remaining balance of $74,500.
4. The DOE shall reimburse the Parent or directly pay for 78 hours of compensatory Counseling to be provided by a provider Parent’s choosing at the provider’s rate for use during the 2023-2024 school year. The DOE shall make payment within 35 days of receipt of an invoice for services.
5. The DOE shall reimburse the Parent or directly pay for 156 hours of compensatory Occupational Therapy to be provided by a provider of the Parent’s choosing at the provider’s rate for use during the 2023-2024 school year. The DOE shall make payment within 35 days of receipt of an invoice for services.
6. The DOE shall pay the provider(s) for the services in 4 and 5, above, within 15 days of receipt of both:
a. Session notes for each session indicating the specific provider’s name, date of service, start and end time of each session, and information describing the skills taught to the Student during each session; and
b. An invoice for the services provided and accompanying sworn affidavit attesting that the services billed for were provided.
7. The DOE shall directly pay for or reimburse the Parent for the Student’s transportation to and from the Private School during the 2023-2024 school year. The DOE shall reimburse the Parent within 35 days of receiving receipts or a sworn affidavit from the Parent attesting to the transportation costs. The DOE shall be required to reimburse the Parent for the following trips: a. from the Student’s home to the school at the beginning of the year; b. from the school to the Student’s home at the conclusion of the school year; c. to and from the school for four additional trips during the 12 month year; d. additional trips as may need to be provided for the periods during which residential care is not provided to the students attending the school; and e. additional trips related to the Student’s social-emotional needs as recommended by either the Student’s counselor or the Director.
8. The DOE shall reimburse the Parent for the Parent’s mileage and tolls to and from the Private School during the 2023-2024 school year. The DOE shall reimburse the Parent within 35 days of receiving receipts or a sworn affidavit from the Parent attesting to the transportation costs. The DOE shall compute the cost of mileage using the Internal Revenue Service rate and formula in effect at the time of the travel. The DOE shall be required to reimburse the Parent for the following trips:
a. All trips accompanying the Student to or from the School; and
b. All trips to visit the Student as recommended by either the Student’s counselor or the Director.
9. The DOE shall reimburse the Parent for the cost of Counseling obtained from 5/2023-6/2023. The DOE shall reimburse the Parent within 35 days of the receipt of invoices or an affidavit from the Parent attesting to the cost of services paid for.
10. The DOE shall provide the Student with a FAPE and the opportunity to earn a regular high school diploma for six months past the date on which the Student turns twenty-two if he has not already earned a regular education diploma by that date.
11. If the Student is no longer able to attend the Private School for any portion of the 2023-2024 school year due to his disability and/or any disability, health-related reason or any other reason outside of the parents’ control, the DOE shall:
a. Pay for the Student to receive five hours per day of compensatory education, one our per week of Counseling, one hour per week of Speech-Language Therapy and one our per week of Occupational Therapy from providers of the Parent’s choosing at a reasonable market rate for any week that the Student is not attending the Private School; or b. Pay for an alternative private school at tuition cost equal to the cost of $5,600 per week.
SO ORDERED.
DATED: 8/30/2023
/s Daniel M. Hochbaum
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. Impartial Hearing Request 06/06/2023 22 pages
B. Private School Contract 2023-2024 06/15/2023 2 pages
C. Private School Schedule Fall 2023-2024 2023-2024 1 page
D. Private School Schedule Summer 2022-2023 2022-2023 1 page
E. Private School Handbook Undated 28 pages
F. Invoices from Counselor 2022-2023 17 pages
G. Home Instruction Report Cards Home Instruction Medically Necessary Instruction: Student 2022-2023 4 pages
H. Application 09/21/2022 6 pages
I. Ten Day Notice 2023 Letter to CSE Regarding Request for Re-convene With Cover 06/19/2023 23 pages
J. Page 01/03/2023 3 pages
K. Ten Day Notice with Proof of Service 2021 Neuropsychological Report by Neuropsychologist, Ph.D., 06/18/2021 15 pages
L. NCSP 05/25/2022 22 pages
M. Psychoeducational Update 03/21/2023 9 pages
N. Omni Rehab Center Psychoeducational Evaluation 12/31/2020 10 pages
O. Transportation Form 06/03/2023 3 pages
P. HIPPA form with Attached Letter from Counselor 06/08/2023 4 pages
Q. Prior Notice Package 04/19/2023 6 pages
R. IEP Various Dates 04/11/2023 36 pages
S. Emails Between Parent and DOE with Attachments between 2021-2023 Various 121 pages
T. Social History 01/20/2023 3 pages
U. Level 1 Vocational Interview Parent/Guardian 01/20/2023 3 pages
V. Affidavit of Director 07/12/2023 6 pages
W. Affidavit of Parent, PhD Emails Between Parent and Private School to Coordinate 07/12/2023 24 pages
X. Meeting with Therapists 07/18/2023 2 pages
DOE EXHIBITS
N/A N/A N/A N/A
IHO EXHIBITS
I. Due Process Complaint 6/9/2023- 6/6/2023 22 pages
III. II. Emails with the Parties 16 6/23/2023 Parent’s Motion to Compel 7/10/2023- 6/21/2023 4 pages
IV. Email with the Parties Memorandum of Law in Support of Petitioner’s Request for 7/18/2023 30 pages
V. Review 8/15/2023 16 pages
Footnotes
[1] A detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[2] I do not believe that awarding reimbursement for prior Counseling and awarding additional Counseling at the Private School would be “double dipping.” The reimbursement for prior Counseling was to make up for the DOE’s failure to provide this service while the Student was on home instruction. An award of Counseling at the Private School is prospective compensatory service meant to support the Student while he receives regular credit bearing instruction through the Private School’s program. Given that I am awarding the Private School as compensatory services and there is no evidence that the Student can succeed in a school environment without Counseling, this additional award is warranted.
[3] I note that while the Student’s father was the only parent listed as the filer on the DPC, the record contains references to two parents and that either or both should be entitled to this relief on each visit.
[4] I note that the Parent requested extended eligibility for the first time in their closing brief, but I do not believe this warrants denying the relief. First, the DOE did not conduct the legally required resolution meeting, which is one time when the Parent might have put the DOE on notice that it was seeking this remedy. 34 C.F.R. § 300.510. Second, the DOE did not participate in the PHC, which is a second occasion when the DOE could have asked for clarification about the Parent’s requested relief. 8 NYCRR § 200.5(j)(3)(xi); Tr. 3-4. Third, in light of the gross violations in this case, I likely would have ordered extended eligibility under my own equitable authority even if the Parent had not requested it. L.O. v. New York City Dep’t of Educ., 822 F.3d 95, 125 (2d Cir. 2016) (stating that courts have broad authority regarding relief, “restrained only by the Supreme Court’s directive that ‘the relief is to be appropriate’ in light of the purpose of the Act.”). Fourth, I ordered non-simultaneous closing briefs in this case specifically because I wanted the Parent to present their proposed order and for the DOE to have an Tr. 59, 66, 109-110. The DOE had the burden on the remedies in this case, and it cannot carry its burden by doing nothing.