New York City Department of Education, Impartial Hearing Decision

NEW YORK CITY OFFICE OF ADMINISTRATIVE

TRIALS AND HEARINGS (OATH)

SPECIAL EDUCATION HEARINGS DIVISION

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

PETITIONER FINDINGS OF FACT AND

DECISION

against Case # 248811 THE NEW YORK CITY Dustin Johnson, Esq. DEPARTMENT OF EDUCATION, Impartial Hearing Officer

RESPONDENT

FINDINGS OF FACT AND DECISION

I. Introduction

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

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

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding "any matter relating to the identification, evaluation or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][6]-[7]; 34 CFR 300.503[a][1]-[2], 300.507[a][1]). First, after an opportunity to engage in a resolution process, the parties appear at an impartial hearing conducted at the local level before an Impartial Hearing Officer (“IHO”) Findings of Fact and Decision (Educ. Law § 4404[1][a]; 8 NYCRR 200.5[j]). An IHO typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine, and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five business days before the hearing; and obtain a verbatim record of the proceeding (20 U.S.C. § 1415[f][2][A], [h][1]- [^[3]]; 34 CFR 300.512[a][1]-[^[4]]; 8 NYCRR 200.5[j][3][v], [vii], [xii]). The IHO must render and transmit a final written decision in the matter to the parties not later than 45 days after the expiration period or adjusted period for the resolution process (34 CFR 300.510[b][2], [c], 300.515[a]; 8 NYCRR 200.5[j][5]). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations (34 CFR 300.515[c]; 8 NYCRR 200.5[j][5]). The decision of the IHO is binding upon both parties unless appealed (Educ. Law § 4404[1]). A party aggrieved by the decision of an IHO may subsequently appeal to a State Review Officer (“SRO”) (Educ. Law § 4404[2]; see 20 U.S.C. § 1415[g][1]; 34 CFR 300.514[b][1]; 8 NYCRR 200.5[k]). III. Background and Procedural History

Petitioner is the parent of REDACTED (“Student”). On June 7, 2023, Petitioner filed a Due Process Compliant (“Complaint” or “DPC”) against Respondent, the New York City Department of Education (“NYC DOE” or “DOE” or “District”) (see DOE-21).

The undersigned Hearing Officer was appointed to preside over the DPC on June 9, 2023. On July 11, 2023, a prehearing conference was held (See IHO-I). On August 1, 2023, an impartial hearing on the merits of the DPC was held and completed the same day.

By email dated June 7, 2023, that served as her DPC notice, the pro se parent alleges primarily that she is not in agreement with the May 31, 2023, IEP generated for the student for the 2023-2024 school year and its change of placement recommendation into a public school (DOE-21). A broad reading of the parent’s DPC also includes claims related to a deprivation of educational benefits during the 2020-2021 school year resulting from the COVID-19 pandemic, and general issues with the student’s placement for the 2022-2023 school year (DOE-21).

For relief, the parent is requesting that the student be placed in a non-public school of the parent’s choosing for a 12-month program (DOE-21). IV. COVID-19 FAPE-related Claims and Statute of Limitations

During the August 1, 2023, hearing on the merits, while attempting to clarify the exact issues of the impartial hearing request, the parent made a colorable claim to a deprivation of educational benefits during the 2020-2021 school year resulting from the COVID-19 pandemic, which was also alluded to in her June 7, 2023, DPC notice (DOE-21).

The District objected to any claims related to the 2020-2021 school year as being barred by the Statute of Limitations.

Findings of Fact and Decision

The parent's allegations related to any educational deprivation as a result of the COVID- 19 pandemic are similar in nature to allegations raised by other petitioners on behalf of other students in the district which have been discussed in recent decisions by State Review Officers (see Application of a Student with a Disability, Appeal No. 22-017; Application of a Student with a Disability, Appeal No. 22-016; Application of a Student with a Disability, Appeal No. 21- 241; Application of a Student with a Disability, Appeal No. 21-110; Application of the Dep't of Educ., Appeal No. 21- 188; Application of the Dep't of Educ., Appeal No. 21-187).

In all of these matters, the parents' allegations surrounded the school closures that took place as a result of the COVID-19 pandemic. Relevant to such circumstances is the decision of the District Court of the Southern District of New York in J.T. v. de Blasio (500 F. Supp. 2d at 145). The Court in J.T. described in detail the March 13, 2020, closure of schools in New York City, and found that the actions taken by the district to deliver services to students with disabilities during the closure through remote delivery to be consistent with federal and State guidance (id. at 181-84).

To the extent that the parent here took issue with the District's actions to deliver instruction and services to students with disabilities remotely during the school closure during COVID-19, those allegations are systemic in nature, and no provision of the IDEA or the Education Law confers jurisdiction upon a state or local educational agency to sit in review of alleged systemic violations (see Levine v. Greece Cent. Sch. Dist., 2009 WL 261470, at *9 [W.D.N.Y. Feb. 4, 2009] [noting that the Second Circuit has "consistently distinguished . . . systemic violations to be addressed by the federal courts, from technical questions of how to define and treat individual students' learning disabilities, which are best addressed by administrators"], aff'd, 353 Fed. App'x 461 [2d Cir. Nov. 12, 2009]; see also Application of a Student with a Disability, Appeal No. 11-091). Thus, an IHO does not have plenary authority to pass judgment on the Governor's or district policies affecting all students. Even if I possessed such authority, courts have held that certain summary administrative actions that have the effect of limiting the availability of protections otherwise afforded by law under ordinary circumstances may be justified as part of the government's response to emergency situations (see, e.g., Hernandez v. Grisham, 508 F. Supp. 3d 893, 979 [D.N.M. 2020]), so it is far from clear that the parent would prevail with that argument in the appropriate forum anyway.

Additionally, the parent’s June 7, 2023, DPC did not allege that the student did not receive any instruction remotely during the school closure, instead taking issue with the amount of instruction remotely provided each day. Nor did the parent here allege that the CSE failed to consider whether the student may need additional services to make up for lost skills due to the closure of schools and the change in the delivery of services as a result of the pandemic, which as discussed further below, is the process contemplated by the United States Department of Education (USDOE) and the New York State Education Department's (NYSED's) Office of Special Education.

While, as noted by the District Court in J.T., the United States Department of Education (USDOE) stated unequivocally in its guidance that compliance with IDEA did not preclude any school from offering educational programs through distance instruction (J.T., 500 F. Supp. 3d at 187; see "Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary Findings of Fact and Decision and Secondary Schools While Serving Children with Disabilities," 76 IDELR 104 [OCR & OSERS 2020]), such guidance merely serves to clarify a district's obligation in the context of an unprecedented public health emergency and does not speak to the actual impact of remote learning on individual students with disabilities. Accordingly, while the pivot to remote learning during the school closure period cannot be the sole basis for finding a denial of FAPE, federal and State guidance suggests that going forward, a CSE should, in the first instance, address questions of educational benefit, loss of academic skills and potential regression during remote learning when recommending educational programming for subsequent IEPs.

For instance, and as illustrated above, both the USDOE and the State Education Department's (NYSED's) Office of Special Education have issued guidance acknowledging that the global pandemic and the resulting closure of schools resulted in "an inevitable delay" in districts providing services to students with disabilities or engaging in the decision-making process regarding such services ("Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities," 76 IDELR 104 [OCR & OSERS 2020]; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 1, Office of Special Educ. Mem. [June 2021], available at http://www.p12.nysed.gov/specialed/publications/ 2020- memos/documents/compensatory-services-for-students-with-disabilities-result-covid-19- pandemic.pdf). In addition, the USDOE has noted reports from some local educational agencies that they were "having difficulty consistently providing the services determined necessary to meet [each] child's needs" and that, as a result, "some children may not have received appropriate services to allow them to make progress anticipated in their IEP goals" ("Return To School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act," 79

IDELR 232 [OSERS 2021]).

Accordingly, to address these delays and other delivery-related issues that occurred as a result of the pandemic, OSEP and NYSED's Office of Special Education have indicated that, when school resumes, a CSE should convene and "make individualized decisions about each child's present levels of academic achievement and functional performance and determine whether, and to what extent, compensatory services may be necessary to mitigate the impact of the COVID-19 pandemic on the child's receipt of appropriate services" ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at pp. 1, 3; see also "Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities," 76 IDELR 104; "Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak," 76 IDELR 77 [OCR & OSERS 2020]; "Supplement #2 - Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at pp. 2-5, Office of Special Educ. Mem. [June 2020], available at http://www.p12.nysed.gov/specialed/publications/2020- memos/special-education-supplement-2- covid-qa-memo-6-20-2020.pdf). The CSE's review might include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or a lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was Findings of Fact and Decision delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student's needs ("Return To School Roadmap," 79 IDELR 232; "Compensatory Services for Students with Disabilities as a Result of the COVID19 Pandemic," at pp. 3-4; see "Supplement #2 - Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 1; see also Z.Q. v New York City Dep't of Educ., 2022 WL 903003, at *5 [S.D.N.Y. Mar. 28, 2022] [noting that "[t]he 2020 COVID-19 guidance . . . provides that CSEs may coordinate with parents to make [an] individualized determination" about whether a student is entitled to compensatory services]).

In the event that a CSE "decides not to provide compensatory services to a parent and the parent disagrees with that decision," State guidance provides that:

Parents of students with disabilities may resolve disputes with school districts regarding the provision of FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j). ("Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic," at p. 5; "Supplement #2 - Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State," at p. 6).

In sum, the USDOE and NYSED's Office of Special Education have indicated that, under these unique circumstances, a CSE should have the first opportunity to consider the student's needs and whether any additional services may be warranted as a result of the pandemic.

Here, the parent stated in her June 7, 2023, due process complaint notice that she complained about the delivery of instruction to her student during the COVID-19 pandemic, the school ignored her concerns, the parent believed her student was one year behind as a result of this, and this was the main reason the parent sought to remove her student from the student’s previous placement (DOE-21). To the extent that the parent's June 7, 2023, due process complaint notice does not contain an allegation that a CSE has inappropriately addressed or refused to consider the student's alleged regression, the parent will not get far with her FAPE claims based solely on the district's failures related to school closure and remote delivery of services.

Additionally, while the parent is of the opinion that the student has regressed, it appears that the parties have since conducted a review of the student's present levels of academic achievement and functional performance, as envisioned by federal and State education authorities, convened multiple new CSE meetings to engage in educational planning for the student, and have issued subsequent IEPs (see DOE-2; DOE-10; DOE-19).

Findings of Fact and Decision

As is apparent from the May 20, 2022, November 7, 2022, and May 31, 2023, IEPs, the CSE has already reconvened and developed new IEPs for this student as contemplated by the above-mentioned OSEP and NYSED guidance.

Nevertheless, the parent does not have any actionable claims with respect to the student's alleged regression due to the COVID-19 school closures, taking into account that a school closure during the relevant time period would not, in and of itself, constitute a denial of a FAPE, as discussed above.

In summary, REDACTED was controlling authority establishing that the change to remote delivery of services did not constitute a change in placement and is not a denial of FAPE.

In addition to my determinations above, the District is correct in that the statute of limitations would bar the parent from making such claims as they relate to the 2020-2021 school year.

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

Exceptions to the timeline to request an impartial hearing apply if a parent was 1) prevented from filing a due process complaint notice due to a "specific misrepresentation" by the district that it had resolved the issues forming the basis for the due process complaint notice; or 2) the district withheld information from the parent that it was required to provide (20 U.S.C. § 1415[f][3][D]; Educ. Law 4404[1][a]; 34 CFR 300.511[f]; 8 NYCRR 200.5[j][1][i] R.B., 2011 WL 4375694, at *6).

In the instant case, as discussed above, the hearing record shows that the parent was aware of and took issue with the student’s delivery of remote education during the COVID-19 pandemic and the effect it allegedly had on the student. Furthermore, the parent failed to make any allegation of specific misrepresentation or that the District withheld information from the parent.

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

In the instant case, the hearing record shows that the District provided the Parent with at least a June 22, 2022, prior written notice, wherein the District informed the Parent of the right to request mediation or an impartial hearing and where to address such requests (see DOE-3).

Based on the foregoing, the evidence in the hearing record leads me to conclude that none of the permissible exceptions to the Statute of Limitations applies to the Parent's claims for the 2020-2021 school year, which are therefore untimely and are barred by the IDEA's two-year statute of limitations.

V. Findings of Fact

On May 20, 2022, the District generated an IEP for the Student and classified the student with an Emotional Disturbance, recommended the Student receive a special education program in a 12:1+1 setting in a special education classroom, along with related services of individual and group counseling, within a 12-month program at a NYSED-Approved Non-Public Day School, rejecting other options and indicating that the student “continues to require the intensive supports and services available in the NPS Day program” (see generally DOE-2; DOE-3).

On September 16, 2022, updated evaluations, assessments, and interviews of the student and parent were conducted (see generally DOE 14; DOE-15; DOE-16; DOE-17).

Findings of Fact and Decision

On November 7, 2022, the District generated an IEP for the Student and classified the student with an Emotional Disability, recommended the Student receive a special education program in a 12:1+1 setting in a special education classroom, along with related services of individual and group counseling, within a 12-month program at a NYSED-Approved Non-Public Day School, rejecting other options by indicating that the student “requires a small class setting in a highly therapeutic program” (see generally DOE-10).

On May 30, 2023, the District generated a meeting notice to inform the parent that the District has scheduled a meeting of the Committee on Special Education to discuss the student’s educational needs. That meeting was being scheduled for the next day, May 31, 2023, at 10:00am. (see DOE-18).

The parent’s unrebutted testimony was that she was not notified until minutes before the meeting while she was at a doctor’s appointment. 1 On May 31, 2023, the District generated an IEP for the Student and classified the student with an Emotional Disability, and made substantial changes to the student’s recommended special education programs and services. The May 31, 2023, IEP recommended that the Student receive a special education program in a 15:1 setting in a special education classroom, along with related services of individual and group counseling, within a 10-month program at a NYC DOE Non-Specialized School, rejecting other options by indicating that the student “has made significant progress 2 in his current school and no longer exhibits behavioral difficulties. He can now be supported in a regular public school small class with counseling services 2x weekly” (see generally DOE-19; DOE-20).

One week later, on June 7, 2023, the parent filed this due process complaint crying foul (DOE-21).

The parent’s unrebutted testimony was that the District’s actions amounted to a “rush job” and that services are being taken away from the student because the student’s prior NYSED-Approved Non-Public Day School was shutting down.

The District offered no testimony or persuasive evidence to support its recommended changes to the student’s IEP. Additionally, the record is devoid of any updated evaluations or assessments that were conducted after the September 16, 2022, evaluations and assessments or after the previously generated November 7, 2022, IEP which contained recommendations contrary to those contained in the May 31, 2023, IEP.

Something is rotten in the state of Denmark (William Shakespeare, Hamlet, Act 1, Scene 4). VI. Applicable Standards

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

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]). "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]). The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. __, 137 S. Ct. 988, 999 [2017]). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]). Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 137 S. Ct. at 1001). The statute ensures an Findings of Fact and Decision "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 [2d Cir. 1989] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 [citations omitted]; see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 137 S. Ct. at 1001 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (“LRE”) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

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

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

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

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

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

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

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

A. FAPE

Based on a thorough and independent review of all the documentary evidence and testimony, as further discussed below, I find that the District failed to offer the student a FAPE as required by Federal and State law for the 2022-2023 and 2023-2024 school years.

In the June 7, 2023, DPC, the Parent outlines a litany of reasons why the District failed to provide this Student with a FAPE over various years (DOE-21). At the August 1, 2023, hearing on the merits, the District failed to offer any witness testimony or persuasive evidence to explain any of the reasoning behind any of its recommendations, actions, or inactions, resting its case on the submission of documentary evidence only. A reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.” Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 1002 (2017).

While certain limited circumstances may allow for the DOE to sustain its burden of production and persuasion on substantial and persuasive documentary evidence alone, it is generally problematic and fundamentally unfair to allow either party to rely solely on the submission of documents in meeting its burden under the law where those documents are rife with double, triple and even unidentified hearsay sources that cannot be cross examined. While compliance with technical rules of evidence is not required in administrative hearings, under certain circumstances, the receipt of hearsay evidence may be so prejudicial as to have a tendency to deprive a party of a fair hearing (see Strain v. Sarafan, 57 A.D.2d 525, 393 N.Y.S.2d 572, N.Y.A.D. (1977), where the hearsay testimony was of vital importance and should have been subjected to cross-examination by the petitioner…the petitioner was deprived of a meaningful hearing; see Dukes v. New York City Housing Authority, 63 A.D.2d 690, 404 N.Y.S.2d 889, N.Y.A.D. (1978), holding that the excessive reliance on hearsay evidence effectively denied petitioner the right to cross-examine adverse witnesses; see Claim of Evans, 254 A.D.2d 564, 678 N.Y.S.2d 696, N.Y.A.D. (3 Dept. 1998), where in an unemployment compensation proceedings, an administrative law judge properly exercised discretion to exclude hearsay evidence to protect employer’s fundamental right of cross-examination, where claimant proffered written hearsay statement, authored by acquaintance of the employer’s president, which allegedly indicated that claimant did not resign but was fired, but the acquaintance failed to answer subpoena directing him to testify at hearing, thereby denying employer the opportunity to cross-examine him on the statement; see Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1st Dept. 1985), holding that a license suspension hearing against a boxer and his managers was faulty because of a lack of an opportunity “to cross-examine certain witnesses whose reports were introduced into evidence without their testifying, in violation of SAPA Section 306, subd. (3).”

This matter presents a prime example of the pitfalls associated with the DOE’s strategy of attempting to sustain its burden of proof and persuasion via the submission of documentary evidence alone. Ideally, if a district intends to rest its case on documentary evidence alone, the district should offer into evidence all documentation pertaining to the evaluation of the student Findings of Fact and Decision and the CSE's recommendations, including prior written notices (34 CFR 300.503[a]; 8 NYCRR 200.5[a]; see also L.O. v. New York City Dep't of Educ., 822 F.3d 95, 110-11 [2d Cir. 2016] [discussing the consequences of a CSE's failure to adequately document evaluative data, including that reviewing authorities might be left to speculate as to how the CSE formulated the student's IEP]; see also Application of a Student with a Disability, Appeal No. 23-090).

A review of the record shows that all pertinent documentation is not present in this case and the evidence offered is not sufficient to identify the student's needs and whether the recommended program and services in the May 2023 IEP appropriately addressed those needs.

As an example, the May 2023 IEP refers to “Teacher Reports 2023” and “Clinician Report 2023” in its Evaluation Results section (see DOE-19-1). The record is devoid of any 2023 clinician report. The DOE offered into evidence a document purporting to be a Teacher Report (see DOE-13). This document lacks attribution to any individual and is unsigned and undated. 3 While the May 2023 IEP refers generally to “Teacher Reports 2023” in its Evaluation Results section (see DOE-19-1), it is unclear if the CSE is referring to the purported Teacher Report offered into evidence as DOE-13. And while the May 2023 IEP makes a passing reference to the student’s school teacher stating that the student does not have any behavioral problems that would warrant a highly structured restrictive class setting in an NPS 12 month program (see DOE-19-19), such a statement and conclusion cannot be inferred from a reading of the purported Teacher Report offered into evidence, which makes no reference to the student’s behavior (compare DOE-13 with DOE-19-19). Furthermore, such a statement and conclusion contained in the May 2023 IEP is contradicted by additional evidence offered by the District, specifically the behavioral assessment that was generated for this student in September 2022 which states that the student gets very angry and has significant behavioral and emotional problems (see DOE-17-2; DOE-17-9; DOE-17-12; DOE-17-14; DOE-17-23). And despite the numerous references to this student’s behavioral problems, the May 2023 IEP developed by the CSE concludes that this student does not need strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the student’s learning or a behavioral intervention plan (see DOE-19-3). Such a conclusion is contradicted by the information provided by the parent that the student explodes and has had the police called on him in school (DOE-21). Additionally, such a conclusion is further contradicted by the District’s own evidence which indicates that the student does need strategies, including positive behavioral interventions, supports and other strategies to address behaviors that impede the student’s learning (see DOE-5-4).

Additionally, as indicated in a footnote above, the conclusion that the student has made significant progress in his current school and no longer exhibits behavioral difficulties is a perplexing one in light of the evidence in the hearing record that the student failed all of his classes for the last three quarters of the 2022-2023 school year and is exhibiting significant attendance issues (see DOE-11; DOE-12).

Furthermore, the record is devoid of any updated evaluations or assessments that were conducted after the September 2022, evaluations and assessments or after the previously generated November 7, 2022, IEP, which contained contrary conclusions and recommendations to the May 2023 IEP (compare DOE-10 to DOE-19).

A review of the evidence in the hearing record begs more questions than answers and requires a fatal amount of speculation in order to intuit how exactly the CSE formulated the student's May 2023 IEP recommendations. This could have been better clarified had the District offered testimony to supports the CSEs May 2023 recommendations and conclusions, instead of relying on documentary evidence alone.

The DOE has the burden of production and persuasion at an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of production and persuasion regarding the appropriateness of such placement (See Educ. Law § 4404[1][c]). I find here that allowing the DOE to attempt to meet its burden of production and persuasion on documentary evidence alone would be so prejudicial to the Petitioner that it would deprive the Petitioner of a fair hearing.

It is true that there is no requirement that the district must meet its burden through the submission of specific categories of evidence. However, under the circumstances presented by the parent’s DPC and the contents of the hearing record, specifically, the insufficient thoroughness of the May 2023 IEP, which is unsupported by additional evidence utilized by the May 2023 CSE during its IEP development process and fails to adequately explain the CSEs reasoning for changing the student’s placement recommendation, and a hearing record which provided insufficient evidentiary support and an inadequately detailed explanation of the CSE's decisions and recommendations (not to mention being contradicted by other evidence in the hearing record), the District here has failed to sustain its burden of proof and failed to offer a cogent and responsive explanation for their decisions that shows the May 2023 IEP is reasonably calculated to enable this student to make progress appropriate in light of his circumstances.

The District’s arguments and focus on a speculative placement miss the point of the issues alleged within the parent’s due process complaint. The parent here is repeatedly alleging that the District rushed the student’s May 2023 IEP, was taking away services that the student needed (such as a 12-month program in a non-public school setting like the District had previously recommended), that the student is one year behind in school, that the student has not improved after the September 2022 evaluations and IEPs, and that the student’s school has shown no concern with regards to the student’s attendance issues, cumulatively resulting in a denial of FAPE for this student (see generally DOE-21).

For all the above reasons, and as supported by the hearing record, I find that the District here failed to meet its burden in proving that it offered the student a FAPE for the 2022-2023 and 2023-2024 school years as required by federal and state law.

B. Prospective Placement

Findings of Fact and Decision

In her DPC, the Parent requests as relief a 12-month placement at an approved nonpublic school for the student’s 2023-2024 school year, which was recommended in the student’s November 2022 IEP that had a projected date of annual review on November 7, 2023, well into the 2023-2024 school year (see DOE-21; DOE-10).

Generally, an award of prospective relief in the form of IEP amendments and the prospective placement of a student in a particular type of program and placement, under certain circumstances, has the effect of circumventing the statutory process, pursuant to which the CSE is tasked with reviewing information about the student's progress under current educational programming and periodically assessing the student's needs (see Adams v. Dist. of Columbia, 285 F. Supp. 3d 381, 393, 396-97 [D.D.C. 2018] [noting with approval the hearing officer's finding "that the directives of IDEA would be best effectuated by ordering an IEP review and revision, rather than prospective placement in a private school"]; see also Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *16 [E.D.N.Y. Oct. 30, 2008] [noting that "services found to be appropriate for a student during one school year are not necessarily appropriate for the student during a subsequent school year"]). However, concerns about circumventing the CSE process arise most prominently in matters where the school year challenged has ended and, in accordance with its obligation to review a student's IEP at least annually, the CSE would have already convened to produce an IEP for the following school year (see V.W. v. New York City Dep't of Educ., 2022 WL 3448096, at *7 [S.D.N.Y. Aug. 17, 2022] [acknowledging that "orders of prospective services are disfavored as a matter of law" and, in the matter at hand, indicating that "the CSE should have already convened for subsequent school years]; M.F. v. N. Syracuse Cent. Sch. Dist., 2019 WL 1432768, at *8 [N.D.N.Y. Mar. 29, 2019] [declining to speculate as to the likelihood that the district would offer the student a FAPE "in the future" and, therefore, denying prospective relief]; Eley v. Dist. of Columbia, 2012 WL 3656471, at *11 [D.D.C. Aug. 24, 2012] [noting that prospective placement is not an appropriate remedy until the IEP for the current school year has been completed and the parent challenges the IEP for the current school year]).

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

Here, I find that this matter presents one of the rare instances where prospective placement is warranted because I am not convinced by the district's conduct that the district's administrative processes are sufficiently intact to effectuate the changes needed to remediate the student's situation on its own. Several factors in this case lead me to conclude that more extraordinary measures are appropriate. First, as of the date of this decision, the student is not Findings of Fact and Decision receiving the 12-month services the student is entitled to and the May 2023 IEP that modified the student’s previous placement has a projected date of annual review on May 31, 2024. Second, despite the conclusions of the CSE’s own November 2022 IEP which recommended the Student receive a special education program in a 12:1+1 setting in a special education classroom, along with related services of individual and group counseling, within a 12-month program at a NYSED-Approved Non-Public Day School, and despite having failed to conduct any updated evaluations after reaching a contrary conclusion and recommendation in November 2022, the District here failed to adequately explain the CSEs reasoning for changing the student’s placement recommendation, which actions do in fact appear to amount to the “rush job” resulting from the student’s previous school closing in June of 2023, as alleged by the parent. 4 Thus, having failed to sustain its burden of persuasion, the District did not rebut the parent’s allegations that the student requires a 12-month program in a non-public setting, and any delay in effectuating that would be detrimental to the student.

For the reasons discussed above, I find that, consistent with the recommendations contained within the November 2022 IEP, the student requires a small class setting in a highly therapeutic program in a 12-month NYSED-Approved Non-Public School.

Notwithstanding the parent’s desire to choose the school herself, I will defer to the district on that decision. However, if the district fails to locate a State-approved nonpublic school as ordered herein, the parent's recourse in that instance would be to seek enforcement, which she could do by filing a State complaint against the district through the State complaint process or by seeking enforcement through the judicial system (see 34 CFR 300.152[c][3]; SJB v. New York City Dep't of Educ., 2004 WL 1586500, at *4-*5 [S.D.N.Y. July 14, 2004] [finding that parties need not initiate additional administrative proceedings to enforce prior administrative orders]; see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [2d Cir. 2005]).

C. Compensatory Services

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014]; Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).

Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address [the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

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

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

Based on a thorough and independent review of the record, I find that the totality of the evidence in the hearing record, including the District's failure to sustain its burden of proof, supports a finding that the Student here is entitled to compensatory education to remedy the District's denial of a FAPE during the school years at issue.

The amount of schooling generally included in a 12-month school year program is approximately 42 weeks; based on the 180 instructional days in a 10-month school year, plus an additional 30 days during the 12-month portion of the school year that occurs over a summer, typically during a six-week program (see Educ. Law § 3604[7]; 8 NYCRR 200.1[eee]; see also Application of a Student with a Disability, 22-145). Thus, for purposes of calculating an award of compensatory education resulting from the District’s failure to provide this student with 12- month services for the period when the student’s previous placement closed down in June 2023 Findings of Fact and Decision and continuing through the 2023 summer months, the District will be ordered to provide the student with an additional 6-weeks’ worth of special education and related services as compensatory education. There is nothing in the hearing record that leads me to conclude that the District itself cannot provide the special education program and related services necessary to compensate this student, especially considering that the instruction should support the Student's in-school academics, which is a core function of the District (see Application of a Student with a Disability, Appeal No. 21-218). As such, this compensatory education shall be delivered by the District, unless the parties shall otherwise agree. VIII. Conclusion

Based on the record before me, I find that the District has denied this Student a Free Appropriate Public Education for the 2022-2023 and 2023-2024 school years. I have considered the parties' arguments and find that the hearing record supports an order that the District place this student in a State-approved nonpublic school for a 12-month school year, as well as an award of compensatory education to be provided by a certified special education teacher qualified to instruct students with emotional disabilities. I further find that the hearing record supports an award of compensatory related services for any missed counseling services.

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

IT IS HEREBY ORDERED that, within 7 calendar days of the date of this decision, the district shall convene the CSE that provides that the student attend a State-approved nonpublic school, and within 30 calendar days of the date of this decision, the district shall locate and place the student in such a non-public school program that can offer a highly therapeutic special education program in a 12:1+1 setting, along with related services of individual and group counseling, continuing for the duration of the 12-month 2023-2024 school year, unless the parties otherwise agree to a different placement; and

IT IS FURTHER ORDERED that the District shall provide the student with 6-weeks’ worth of special education and related services as compensatory education; and

IT IS FURTHER ORDERED that the District shall review the student’s September 6, 2022, behavioral assessment and shall generate an appropriate Behavioral Intervention Plan for this student.

DATED: SO ORDERED

8/3/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO Findings of Fact and Decision

NOTICE OF RIGHT TO APPEAL

Within 40 days of the date of this decision, the parent and/or the Public School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under Section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for proceedings before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov.

Findings of Fact and Decision

IMPARTIAL HEARING OFFICER'S CERTIFICATION OF THE RECORD

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

DATED: CERTIFIED BY

8/3/2023 /s/ Dustin Johnson

Dustin Johnson, Esq., IHO

EXHIBITS

DOE Date Title Number of Exhibit Pages DOE-1 5/11/22 Notice 3 DOE-2 5/20/22 IEP 23 DOE-3 6/22/22 PWN 4 DOE-4 5/20/22 Report 1 DOE-5 5/20/22 IEP 9 DOE-6 Undated Report Card 1 DOE-7 Undated Attendance Record 1 DOE-8 9/2/22 Assessment Planning 1 DOE-9 9/13/22 Notice 3 DOE-10 11/7/22 IEP 22 DOE-11 Undated Report Card 1 DOE-12 Undated Attendance Record 1 DOE-13 Undated Teacher Report 1 DOE-14 9/16/22 Interview 2 DOE-15 9/16/22 Interview 3 DOE-16 9/16/22 Psychoeducational Report 13 DOE-17 9/16/22 BASC-3 Report 48 DOE-18 5/30/23 Notice 3

Findings of Fact and Decision

DOE-19 5/31/23 IEP 20

DOE-20 6/7/23 PWN and School Location Letter 6

DOE-21 6/7/23 DPC 1

IHO Date Title Number of Exhibit Pages IHO-I 7/11/2023 PHC Summary and Order 9

Findings of Fact and Decision

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Footnotes

[1] I note also that the notice indicates it was “Mailed To” the parent although in lieu of the parent’s home address there is listed “Microsoft teams by phone, 1B” (see DOE-18-3).

[2] The conclusion that the student has made significant progress in his current school is a perplexing one in light of the evidence in the hearing record that the student failed all of his classes for the last three quarters of the 2022-2023 school year (see DOE-11). 8 Findings of Fact and Decision

[3] Does the DOE wish for the reviewing authorities to speculate as to the authorship of this document, or trust that it is a teacher report based only upon the DOE’s Exhibit List prepared by an attorney for the District in anticipation of litigation? 13 Findings of Fact and Decision

[4] The District’s scheduling an IEP meeting the day before it was held is proof alone of the rush job alleged. 16 Findings of Fact and Decision