New York City Department of Education, Impartial Hearing Decision

Case Number: 607185 – NYC: 254357

FINDINGS OF FACT AND DECISION

Case Number	254357
Student’s Name	Student
Date of Birth	Birthdate
District	School District
Hearing Requested By	Parent
Date(s) of Hearing	10/8/23; 11/8/23
Actual Record Close Date	November 14, 2023
Time Sensitive	Yes ☒ No ☐
Hearing Officer	Virginia Tillyard

NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS

SPECIAL EDUCATION HEARINGS DIVISION

In the matter of Student, a Minor, by her/his Parent(s), against THE NEW YORK CITY DEPARTMENT OF EDUCATION

FINDINGS OF FACT AND DECISION

Impartial Hearing No. 254357

Virginia Tillyard, Impartial Hearing Officer

BACKGROUND AND POSITION OF THE PARTIES

Parent, through counsel, filed a due process complaint (the “DPC”)^[1] under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 ff (the “IDEA”), Article 89 of the New York State Education Law and Section 504 of the Rehabilitation Act of 1973, against the New York City Department of Education (the “DOE”) on 9/5/2023, alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2023-2024 school year.

As remedies in the DPC, Parent requests a revised Individualized Education Program (“IEP”) that recommends placement at a New York State approved nonpublic school, specifically at the Non-Public School’s Specific Location, for the remainder of the '23/'24 school year and appropriate special transportation to and from this approved nonpublic school, for the rest of the '23/'24 school year. As more fully discussed below, I find that (a) the DOE failed to meet its burden of defending the allegations in the DPC, including showing that it offered Student a FAPE for the year at issue; and (b) the equities support the Parent’s requested relief.

JURISDICTION

The IDEA and its implementing regulations and Article 89 of the New York State Education Law and its implementing regulations provide jurisdiction for this decision.^[2]

PROCEDURAL HISTORY

I was appointed as Impartial Hearing Officer to this case on September 7, 2023. After due notice to the DOE, and an opportunity to respond, on September 15, 2023 I ordered Student’s pendency at the Non-Public School by signing the Parent’s proposed interim order on pendency.^[3]

At hearing, the Parent submitted an exhibit packet and all exhibits were admitted. The Parent’s exhibit packet included the affidavit testimony of the Non-Public School Witness and the Parent. The DOE’s attorney cross-examined the Non-Public School Witness. Both parties made an oral closing.^[4]

LEGAL FRAMEWORK

Decisions of impartial hearing officers must be on substantive grounds based on a determination of whether the student received a free appropriate public education (“FAPE”), 8 NYCRR § 200.5(j)(4)(i). Under the IDEA and New York law, where there is procedural violation resulting in a deprivation of educational benefits to a student or the student’s right to a free appropriate public education is significantly impeded, a hearing officer may find that a child did not receive a FAPE.^[5]

The IDEA is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (“IEP”) (34 C.F.R. § 300.13). Two purposes of the IDEA 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).

Burden

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998). Since this is not a tuition reimbursement case, the DOE has the burden of proof on all issues.

FINDINGS OF FACT AND DECISION

The DOE’s case – provision of a FAPE

As defined in the IDEA, a FAPE consists of special education and related services provided at no cost to a parent. Special education means “specially designed instruction...to meet the unique needs of a child with a disability” and “related services” are various supportive services “as may be required to assist a child with a disability to benefit from special education”.^[6] A school district has offered 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). The IDEA’s procedures require the school district’s IEP Team, in developing an IEP, to consider (i) the strengths of the child; (ii) the concerns of the parents for enhancing the education of their child; (iii) the results of the initial evaluation or most recent evaluation of the child; and (iv) the academic, developmental, and functional needs of the child. 20 U.S.C. § 1414(d)(1)(A)(i)(I)-(IV). An IEP Team is a group of individuals, including the student’s parents. 20 U.S.C. § 1414(d)(1)(B).

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.” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15- 827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). When an IEP is disputed, a school district is expected to be able to offer a “cogent and responsive explanation for their decisions” to show that a student’s IEP meets that standard. The court in Endrew F. said that “the adequacy of a given IEP turns on the unique circumstances of the child for whom it was created.” A student's recommended program must also be provided in the least restrictive environment with non-disabled peers. See 34 C.F.R.§§300.114 through 300.117; Walczak v. Florida Union Free Sch. Dist., supra.

The Second Circuit has confirmed that its pre-existing FAPE standard is consistent with the Supreme Court’s decision in Endrew F. Mr. P. & Mrs. P. v. West Hartford Board of Educ., 885 F.3d 735 (2d Cir. 2018).

In this case, Parent alleges, among other things, that the DOE failed to recommend an appropriate IEP and appropriate school placement for Student for the 2023-24 twelve month school year.^[7] The DOE did not introduce any documentary evidence or put on any witnesses regarding the development of Student’s IEP for the 2023-24 school year, and conceded that the DOE did not recommend an appropriate placement for Student for the 2023-24 school year.^[8]

Other evidence in the record, including Parent’s testimony, provides unrebutted evidence supporting many of the DPC’s allegations. As just one example, not only did Parent disagree with the CSE’s placement recommendation in the T-5 IEP of a 12:1:1 class as opposed to the 8:1:2 class that Parent believed is appropriate for Student, but the DOE did not offer any placement that could implement that placement recommendation. Parent had visited the CSE’s recommended placement for the 2023-24 school year, the Public School, before the meeting for the T-5 IEP. She contacted it again after being notified of the placement, and found out that it did not have a 12:1:1 class, so could not implement the T-5 IEP.

Based on the above, I find that the DOE failed to provide Student with a FAPE for the 2023-2024 school year.

REMEDIES

Having determined that the DOE denied Student a FAPE, the remaining issue to be decided is appropriate relief. Any relief must be “appropriate in light of the purpose of the Act."^[9] The intent of the IDEA was "to ensure that children with disabilities receive an education that is both appropriate and free."^[10]

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 FAPE.^[11] An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period of time and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. Compensatory awards should aim to place students in the same position they would have occupied but for the school district's violations of IDEA.^[12] It is "discretionary, prospective, injunctive relief rafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student."^[13]

In order to determine whether Parent’s requested remedies are appropriate, some discussion of Student's educational needs and potential is warranted.

Student’s Needs

There is no dispute about Student’s classification and the nature of her disabilities. She is now [REDACTED] years old and was diagnosed with Autism when she was two years old.^[14] She received special education services through Early Intervention and attended a special program in an 8:1:2 class, with speech-language therapy (“SLT”), occupational therapy (“OT”), and physical therapy (“PT”) starting at age 3. She has moderate to severe delays in receptive and expressive language, pragmatic language delays, delays in gross and fine motor skills, and sensory processing and modulation difficulties.^[15] She has difficulty with transitions to different environments or activities, becomes easily dysregulated and has severe, prolonged tantrums in response to minor routine changes or other events, flopping to the floor, yelling and kicking for prolonged periods. She needs highly structured activities and maximal adult assistance during transitions.^[16] She has a severe adverse response to changes in routine.^[17] She needs individualized support to address anxiety and stress due to changes in routine, and to enable her to stay on task for academic learning. She needs behavioral coaching and support throughout the day.

For these reasons, she needs a small class with available adult 1:1 support.^[18] Despite emotional difficulties, she has “tremendous” potential and a very strong capacity to learn^[19].

On August 10, 2022 the Committee for Preschool Special Education (CPSE) developed an IEP (the “CPSE IEP”) for Student recommending twelve month placement consisting of a special class, 8:1:2, in an Approved Special Education Program, with related services of SLT (2x30, 1:1); OT (2x30, 1:1); and PT (2x30, 1:1).^[20] The DOE implemented the CPSE IEP at the Non-Public School.^[21] Student made significant, sometimes “tremendous” progress in that placement, including in behavior, pre-academic skills and all related services.^[22] Her tantrums diminished and she was toilet trained by summer 2023.^[23]

The Committee for Special Education (“CSE”) convened on March 24, 2023 and, over two meetings, developed Student’s “turning five” IEP for the 2023-24 school year.^[24] The resulting IEP (the “T-5 IEP) is not in the record. However, according to the Parent’s testimony and the unrebutted allegations of the DPC, it recommended a 12-month school year with placement in a DOE community school in a special class, 12:1:1 class for math, ELA, social studies, and science, with related services of counseling (1x30, group of 2); occupational therapy (2x30, 1:1); physical therapy (2 x30, 1:1); speech-language therapy (2x30, 1:1); and parent counseling and training.^[25] Student’s 2022-23 class teacher from the Non-Public School’s Specific Location attended the meeting for the T-5 IEP and told the committee that two adults are often needed to help Student become regulated, which Student’s class at the Specific Location’s 8:1:2 allowed. However, she explained that this would be impossible in a 12:1:1 classroom because there are only two adults in a class of that type.^[26]

The testimony of the Parent and the Non-Public School Witness fully confirm the above details of Student’s needs.^[27] I found the Non-Public School Witness to be credible, based on her precise, detailed responses to questions. The Non-Public School Witness is currently the Site Director and Principal of the Non-Public School and oversees all educational services. She is a licensed psychologist in New York, and is certified both in school psychology and school administration. She also has a doctorate in school/child clinical psychology and a master’s and bachelor’s degree in psychology.^[28] She has known Student personally since September 2022, when Student began at the Non-Public School. She visits Student’s classroom once a week, greets all students in the morning, and has intervened at crises when Student needed special assistance due to her problems with changes of routine.^[29]

The Parent’s requests for relief are addressed in turn below.

Appropriateness of the Non-Public School to meet Student’s needs

This is not a tuition reimbursement case, in which the Parent would have the burden to prove the appropriateness of a unilateral placement. The Non-Public School does not accept unilateral placements. Instead, students must be placed there by the DOE’s IEP placement and CBST referral process, or by hearing officer order.^[30] Since I am ordering revision of Student’s IEP so as to provide placement in a non-public school (as described in more detail below), I do not believe it is strictly necessary to my decision to decide whether the Specific Location of the Non-Public School can meet Student’s needs. To the extent that determination may be considered necessary, however, I find that the Specific Location of the Non-Public School meets this requirement, as discussed below.

The Non-Public School Witness knows Student personally and is thoroughly familiar with her current needs. She is ultimately responsible for Student’s program. She confirms that Student would be appropriately placed at the Specific Location of the Non-Public School.^[31]

The Non-Public School is a citywide organization that has satellite branches in various boroughs. It serves both typically developing and special needs students, including students with autism, speech and language impairment and behavioral issues. The branch at the Specific Location serves pre-kindergarten students and students from kindergarten through second grade. It has classrooms with either a 6:1:2 or an 8:1:2 ratio, each with one teacher and two teacher assistants. There are two classes of K-2 students. They are grouped according to age, developmental and educational needs, and IEP mandates for class sizes. The Specific Location at the Non-Public School provides PT, OT, SLT and counseling, all from licensed providers.^[32] All head teachers are licensed in special education and have continuing professional training. All students’ programs are individualized. The school also offers parent support and advocacy.^[33] The Specific Location of the Non-Public School uses the TEACCH methodology and incorporates an individualized, multi-level academic curriculum that relies heavily on visual supports. The TEACCH methodology is designed for student with autism.^[34]

Student attended the Specific Location of the Non-Public School for the 2022-23 school year and, via pendency, is currently placed in a K-2 class there now.^[35] She is one of seven total students in a class with one teacher certified to teach students with disabilities, and two assistants.^[36] The other students in her class have a similar classification. They are all verbal, and cognitively in the same range (below average to average). Many have self-regulation challenges similar to Student.^[37] During her time at the Specific Location of the Non-Public School the TEACCH methodology has helped Student self-regulate and increased her availability for learning.^[38] It relies heavily on visual learning. Learning carrels in Student’s classroom provide a private learning space and structured delivery of academic content. Each student’s progress through the content is monitored, and teachers individualize students’ programs by adjusting the content based on recorded progress over the week. Student responds well to this type of instruction. She also receives 1:1 support when needed.^[39] Both the Non-Public School Witness testimony and the Parent’s testimony, as well as other documents in the record, confirm that Student made progress at the Specific Location of the Non-Public School.^[40] In particular, she progressed in language usage, self-regulation and tolerance of direction.^[41] Although Student is placed in a special class, there are general education students enrolled at the Specific Location and Student has many opportunities to interact with them.^[42] Student needs a class with an 8:1:2 teacher ratio to address her challenges with transitions.^[43]

At hearing, the DOE argued that there were concerns about the appropriateness of this placement for Student, including whether her program was tailored to needs. I disagree. While, as the DOE pointed out, Student is taught using the same methodology and supports as other students in the program, it is clear from the record that Student’s program at the Specific Location includes many individualized components to address her needs, including 1:1 specific interventions and procedures to address her tantrums, 1:1 crisis support, an individualized academic program based on her achievement level, and pull-out, 1:1 related services.

The DOE also argued that it is not clear from the record that Student is placed in the 8:1:2 class at the Non-Public School because that was the class ratio she needed, or simply because it was the only spot available. Based on the record, I find that an 8:1:2 class ratio is appropriate to meet Student’s needs. That placement is therefore appropriate, irrespective of what seats were available.

Based on the above, I find that the Specific Location of the Non-Public School is providing Student with educational instruction specially designed to meet her unique needs and is accordingly an appropriate placement for Student.

Prospective relief -- new IEP and NPS placement

With respect to prospective changes to a student’s IEP, the Office of State Review notes:

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]).^[44]

In V.W. v. New York City Dep’t of Educ., S.D.N.Y. 2022, the court cited Doe v. E. Lyme, and Eley v. D.C., 59 IDELR 189 (D.D.C. Aug. 24, 2012): “The issue of prospective placement generally arises ... only after the IEP has been properly completed and the parent wishes to remove the student from the IEP's recommended location.” When prospective funding is compensatory in nature, it can be appropriate. See, e.g. Sabatini v. Corning-Painted Post Area Sch. Dist., 31 IDELR 183 (W.D.N.Y. 1999).

This is an instance where prospective changes to the IEP are appropriate. Student’s T-5 IEP is still in effect and the requested prospective relief is an appropriate form of compensation for the FAPE denial for the year at issue. Based on the record, I find that an 8:1:2 class size, with the related services recommended in the CPSE IEP,

Based on the foregoing, I am ordering the CSE to revise Student’s IEP to incorporate the recommendations of the CPSE IEP, including an 8:1:2 class size and placement in an NYSED-Approved Non Public School via the CBST referral process. According to testimony at hearing, such an order would effectively result in an application to the Non-Public School’s school-age program.

Regarding Parent’s request for an order specifically naming the Specific Location, I decline to name any specific NPS insofar as the Non-Public School could for some reason no longer have an available seat for Student. The CBST referral process is designed to result in an appropriate NPS placement. However, in the event the CBST is unable to provide the Parent, within 30 days of its receipt of the order, options for an appropriate non-public school placement, my orders are without prejudice to Parent’s right to identify an appropriate unilateral private placement, and seek reimbursement for the same pursuant to a future due process complaint.

Special Transportation

Parent seeks an order requiring the DOE to provide door to door specialized transportation, with a group of similarly aged students and limited travel time of less than one hour.

The school district is responsible for providing appropriate transportation to a nonpublic school for a student with a disability classified as such by the CSE, if the school is located not farther than 50 miles from the student’s home and the student attends the school “for the purpose of receiving services or programs similar to special educational programs recommended for such child by the local committee on special education”.^[45]

The State Education Department has indicated that a CSE should consider whether the student’s disability prevents the student from using the same transportation provided to nondisabled students, or getting to school in the same manner as nondisabled students. In developing transportation recommendations, the CSE should consider and document the needs of a student relating to the student’s disability, and provides several examples including: a student's mobility, behavior, communication, physical, and health needs, when determining whether or not a student requires transportation as a related service, and that an IEP "must include specific transportation recommendations to address each of the student's needs, as appropriate".^[46] Other relevant considerations may include the student's age, ability to follow directions, ability to function without special transportation, the distance to be traveled, the nature of the area, and the availability of private or public assistance.^[47] See guidance available at: Transportation:EMSC:NYSED. Additional New York State guidance is available at: Special Transportation for Students with Disabilities (nysed.gov).

Student’s CPSE IEP recommended special transportation.^[48] However, Student requires the special transportation that Parent requests due to her age and particular needs. A group of similarly aged students is necessary to reduce distractions, which would lead to anxiety in Student’s case. Limited travel time is required in order for her to be mentally and emotionally available for instruction at the time she arrives at school. Based on that, as confirmed by the above review of Student’s needs, I find that Student requires the specialized transportation that Parent requests to assist her in benefiting from special education and am ordering for special transportation as requested.

Equitable Considerations

Consideration of the equities is a necessary part of any remedy granted under the IDEA: "[E]quitable considerations are relevant in fashioning relief and the court enjoys broad discretion in so doing."^[49] Equitable considerations apply in fashioning compensatory education relief.^[50] Equitable factors may include, for example, consideration of the parties' conduct, such as when the school system reasonably "require[s] some time to respond to a complex problem," or when parents' refusal to accept special education delays the child's receipt of appropriate services.^[51]

There are no equitable considerations weighing against the Parent in this case. She diligently toured as many as 12 different public school open houses to learn more about the different special education programs that the DOE offered.^[52] She attended both sessions of the meeting for the 2023 T-5 IEP.^[53] She communicated extensively with the CSE regarding her disagreements with the recommendations in the T-5 IEP, and again regarding the fact that the Public School could not implement the recommendations of the T-5 IEP.^[54]

Other remedies

I have reviewed Parents’ other requests and claims and find them either to be without merit, not supported by the record, not within my jurisdiction or beyond the scope of my authority. Accordingly, any relief not specifically discussed in this decision is denied, and all the Parents’ remaining claims not discussed herein are dismissed with prejudice.

ORDERS

IT IS HEREBY ORDERED that the New York City Department of Education (“DOE”) shall, within 15 days of the date of this decision, convene a Committee on Special Education (“CSE”) meeting to review this decision and develop an appropriate IEP for Student that recommends the following program, on a twelve month basis, for at least the remainder of the 2023-24 school year:

• placement in a full time, twelve month specialized program for school aged students with autism spectrum disorder and developmental disabilities (such as, for example, the [REDACTED]) with instructors and therapists experienced with such a student population, and that has a currently available seat
• a class setting no larger than 8:1:2
• Physical therapy, 2 X 30 per week, 1:1
• Speech-language therapy, 2X 30 per week, 1:1
• Occupational therapy, 2X30 per week, 1:1
• Other appropriate supports and services for the above student population
• appropriate door to door special transportation for the rest of the 2023-24 school year consisting of limited transportation time of less than one hour, and with a group consisting only of students within Student’s approximate age group; and it is further

ORDERED that the CSE shall defer Student’s IEP, as revised in accordance with the preceding order, to the New York City Department of Education’s Central Based Support Team which shall, within 15 days, locate an appropriate non-public school that can implement the revised IEP.

November 14, 2023

________________________________

Virginia Tillyard, 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

CERTIFICATION OF IMPARTIAL HEARING OFFICER

I, Virginia Tillyard, Impartial Hearing Officer in this matter DO HEREBY CERTIFY that the below list of exhibits included in this decision, taken together with any prior submissions with certifications, identifies each exhibit admitted into evidence in the above matter as of this date.

In addition, the full record of this case, maintained by the district, includes all briefs, arguments or written requests for an order filed by the parties; all written orders, decisions or subpoenas issued by me; and transcripts of all proceedings on the record, along with any other applicable items described in 8 NYCRR §200.5(j)(5)(vi)(a).

I FURTHER CERTIFY that upon information and belief, the materials included in the record are either the original or true copy of the original documents submitted in this matter.

Dated: November 14, 2023

__________________________________________

Virginia Tillyard, Impartial Hearing Officer

EXHIBITS ADMITTED INTO EVIDENCE

DOE EXHIBITS

None

PARENT EXHIBITS

Ex.	Date	Description	# of pages
A	9/5/2023	Due Process Complaint	8
B	8/23/2022	Ten Day Notice with Confirmation Receipt	4
C	9/13/2023	Pendency Agreement	1
D	9/15/2023	Order on Pendency	2
E	8/10/2022	CPSE IEP	19
F	June 2023	[REDACTED] Progress Reports	6
G	August 2023	[REDACTED] Progress Reports	6
H	10/26/2023	Attendance Record	1
I	9/5/2023	Class Schedule	1
J	Undated	Program Description	2
K	10/31/2023	Affidavit of Testimony – [REDACTED]	9
L	10/31/2023	Affidavit of Testimony – [REDACTED]	8

IHO EXHIBITS

None

---

Footnotes

[1] Ex. A

[2] Since all the relief that Parent is requesting is available under the IDEA, I do not need to analyze any claims under Section 504.

[3] Ex. D

[4] The transcript of the merits hearing on November 8, 2023 was not available at the time of this decision. However, references to the full transcript, as expected, are included by referring to “Hearing Transcript” and the applicable merits hearing date.

[5] 20 U.S.C. § 1415 (f)(3)(E)(ii) states: Procedural issues In matters alleging a procedural violation, a hearing officer may find that a child did not receive a free appropriate public education only if the procedural inadequacies-- (I) impeded the child's right to a free appropriate public education; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a free appropriate public education to the parents' child; or (III) caused a deprivation of educational benefits.

[6] See the IDEA’s definitions at 20 U.S.C. §1401.

[7] See Ex. A

[8] See Hearing Transcript, 11/8/2023

[9] School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985)

[10] Carter, supra

[11] See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008), citing Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990) and Reid v. District of Columbia, 401 F.3d 516 (D.C. Cir. 2005): “The IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.”

[12] Reid, supra

[13] Reid, quoting G. ex rel. RG v. Fort Bragg Dependent Schs., 343 F.3d 295, 308 (4th Cir. 2003)

[14] Ex. L

[15] Ex. E-3;

[16] Ex. G; Ex. K

[17] Exs. E, F, G, K and L; Testomony of the Non-Public School Witness, Hearing Transcript

[18] Ex. K

[19] Id.

[20] Ex. E.

[21] Ex. K and L

[22] Ex. G

[23] Ex. K;

[24] Ex. L, ¶¶9-10

[25] Ex. L, ¶12

[26] Ex. L

[27] Exs. K and L

[28] Ex. K

[29] Hearing Transcript, 11/8/2023

[30] Ex. K ¶30

[31] Ex. K, ¶20

[32] Ex. K, ¶11

[33] Ex. J

[34] Ex. K

[35] Exs. H, K and L

[36] Ex. K, ¶21

[37] Testimony of the Non-Public School Witness, Hearing Transcript

[38] Ex. K, ¶28

[39] Ex. L-8

[40] Exs. F, G, K and L

[41] Ex. K ¶16

[42] Testimony of the Non-Public School Witness, Hearing Transcript

[43] Id.

[44] Application of a Student with a Disability, Appeal No. 23-059.

[45] N.Y. Educ. Law §4402(4)(d).

[46] Special Transportation for Students with Disabilities," VESID Mem. [Mar. 2005], available at Special Transportation for Students with Disabilities (nysed.gov)

[47] See Donald B. v. Bd. of Sch. Commrs., 117 F.3d 1371, 1375 [11th Cir. 1997]; Malehorn v. Hill City Sch. Dist., 987 F. Supp. 772, 775 [D.S.D. 1997]

[48] Ex. E

[49] Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 (1993) (citation and internal quotation marks omitted).

[50] See, among other decisions, Reid 401 F.3d at 524; French v. N.Y.S. Dep’t of Educ., 476 F.App’x 468 (2d Cir. 2011); Parents of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489 (9th Cir. 1994); Application of a Student with a Disability, Appeal No. 19-120; Application of a Student with a Disability, Appeal No. 18-002; R.L. v. Miami Dade Cty. Sch. Bd., 757 F.3d 1173 (11th Cir. 2014) (parents’ failure to consider more appropriate placements was an equitable consideration in affirming denial of compensatory award).

[51] Reid, citing M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389, 391-92, 396-97 (3d Cir. 1996)

[52] Ex. A; Ex. L ¶11

[53] Ex. L ¶¶10-11

[54] Id. and Ex. L ¶¶15-17; Ex. B