New York City Department of Education, Impartial Hearing Decision

Case Number: 618674 – NYC: 265298

FINDINGS OF FACT AND DECISION

Case Number: 265298

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 12/19/2023

12/21/2023

Actual Record Close Date: 12/28/2023

Decision Date: 01/01/2024

Hearing Officer: Daniel Ajello Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/19/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], Attorney — DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/21/2023

(All Parties Appeared Via Teleconference)

[REDACTED], Attorney — Student

[REDACTED], Founder and Director of [REDACTED] — Student

[REDACTED] — Parents

[REDACTED], Attorney — DOE

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 12/19/2023 Exhibit Description Date Page(s) A Individualized Education Program (IEP) 4.8.2021 27 B Individualized Education Program 2.28.2022 30 C Neuropsychological Evaluation 4.22.2022 15 D Individualized Education Program 11.30.2022 30 E Correspondence from [REDACTED] 8.14.2023 1 F Affidavit of [REDACTED], Director [REDACTED] 12.13.2023 3 G Affidavit of [REDACTED], Parent 12.14.2023 4 H Request for Impartial Hearing/Due Process Complaint (DPC) 11.8.2023 9

DEPARTMENT OF EDUCATION (DOE)

Entered 12/19/2023 Exhibit Description Date Page(s) 1 Excluded Duplicate 2 Individualized Education Program (IEP) 7.20.22 31 3 Excluded Duplicate 4 Prior Written Notice 12.9.22 2 5 Prior Written Notice 7.22.22 9 6 Prior Written Notice 3.21.22 9 7 OT Progress Report 2.14.22 2 8 OT Progress Report 3.26.21 3 9 Speech Progress Report 2.25.22 2 10 Individualized Education Program 12.4,23 37 11 Prior Written Notice 12.6.23 4 12 Progress Report 12.8.23 2

IMPARTIAL HEARING OFFICER

Entered 12/19/2023 I Notice of Appointment, 11/10/2023, 4 pages II Notice of Appearance, 11/14/2023, 1 page

INTRODUCTION

On 11/10/2023, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Hearing commenced, on 12/19/2022, to allow an opportunity for the DOE to defend against the allegations contained in the DPC.

Ultimately, the DOE was not able to avail itself of the opportunity to defend against the allegations contained in the DPC, beyond submitting Documentary Evidence. The DOE Representative had tried unsuccessfully to obtain several witnesses for the Hearing. (T 16-20)

The IHO directed the DOE Representative to have any desired witnesses available for the next Hearing date, at which time it was anticipated the Hearing may be completed. (T 21-22)

Parent Attorney advised that aspects of the case had been resolved. Resolution had been reached regarding requested evaluations and having another IEP meeting conducted, for the Student. (T 9)

Issues relating to the alleged denial of a Free Appropriate Public Education (FAPE), for the 22-23 and 23-34 school years, as well as sought after Compensatory Relief, remained. (T 9-10, Ex H)

The IHO inquired as to the number of missed Related Service Sessions, and the DOE acknowledged it would endeavor to calculate any missed sessions. (T 11-13)

Student is attending public school, in a [REDACTED] class. (T 11-12)

Hearing continued, and concluded, on 12/21/2023.

Appended to the record are lists of persons in attendance and the documents received in evidence.

Due Process Complaint (DPC) relates to the 22/23 and 23/24 School Years, and presently relevant allegations include: - Student is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Learning Disorder in Mathematics; - Student was placed in the Early Intervention Program at age

[REDACTED], and she received services of speech therapy, occupational therapy, and physical therapy; - Due to significant difficulties, Student has been in various school environments that have not met her needs, including [REDACTED]

Preschool, PS[REDACTED], Charter schools, PS [REDACTED] and the [REDACTED] school; - The Committee on Special Education (CSE) convened on February 28, 2022; classified Student as a student with a Speech or Language Impairment; and found that without supports in place, Student was functioning at an instructional [REDACTED] level in reading, 1st grade level in writing, kindergarten level in math was able to identify the setting, main characters, and problems in a story; noted that Student read monotone and often struggled with appropriate phrasing and expression; found her to be hesitant when reading aloud and read softly while taking time to read each word rather than read a sentence fluently (Ex H 1); and struggles included frustration with academics and anxiety (Ex H 2-3); - IEP recommendations were made, and Parent expressed that Student required a private school (Ex H 3, Ex B); - Concerned with lack of Student progress Parent obtained independent evaluation (Ex H 3, Ex C); - CSE convened again on 11/30/2022, at which time Student was in the [REDACTED], and noted continued Student struggles, noting the current placement is not meeting the Student’s needs, and Parent raised the option of a specialized school (Ex H 4-6, Ex D); and - Parent alleges the Student continues to regress without appropriate support and services, resulting in a denial of FAPE to the Student. (Ex H 6)

Parent alleges the DOE failed to: properly evaluate the Student; failed to provide Student’s mandated supports; and recommended an inappropriate program for the Student for the 22-23 and 23-24 school year. (Ex H 6)

Presently, Parent seeks relief to remedy the alleged failure, including: - Compensatory Educational Services: 600 hours of compensatory tutoring at the enhanced rate, based on the denial of an appropriate placement, services and FAPE, for the 2022-2023 and 2023-2024 school years; and - The NYCDOE shall provide at least 40 hours each of compensatory PT, OT, SLT, and counseling at the enhanced rate, based on the denial of an appropriate placement, services and FAPE, for the 2022-2023 and 2023-2024 school years.

(Ex H 7)

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.

THE POSITION OF EACH PARTY

Hearing continued, and concluded, on 12/21/2023.

At Hearing, of 12/21/2023, the DOE was not able to defend any offer of a Free Appropriate Public Education (FAPE), for the Student, for the 22-23, or 23-24 school years. (T 22)

The DOE Representative also was not able to ascertain whether or not the Student received appropriate related services over the 22-23 and 23-34 school year. (T 26-27)

The DOE does not dispute that if there are indeed missed sessions the Student is entitled to make up those sessions. (T 27-28)

Parent Attorney outlined the Parent’s case; reviewed the relevant evidence; and facts alleged to support the allegations, and sought after relief. (T 68-72)

The DOE argus that it followed the recommendations provided, by the Neuropsychological Evaluation, of 04/22/2022, by giving the Student more individualized support; that the evaluation conducted by Dr. [REDACTED] (Ex E & F) is not thorough enough to determine the needs of the Student; and that the DOE satisfied its obligation to the Student by issuing Related Service Authorizations (RSAs) for any services not provided. (T 73-74)

The above arguments are not convincing since the DOE has evidenced neither a specific RSA and has not defended any IEP related to the Student. The IEPs submitted in evidence, as reviewed below, actually weigh against the DOE and evidence a failure to address the special education needs of the Student over several years.

The DOE also argus there is no evaluation or report which recommend placement in a specialized school. (T 75) This argument is without merit since, in part, the Neuropsychological Evaluation, of 04/22/2022, which the DOE notes as relied upon, makes specific recommendation for a specialized school placement. (Ex C 6)

At Hearing, the Parent supported its position via Documentary Evidence and Oral Testimony. The Parent’s evidence is found to be credible and supportive of the Parent’s position, as considered below:

[REDACTED], ED.D., Director, [REDACTED]

Witness provided Testimony via Affidavit (Ex F), supplemented with Testimony at Hearing which included: - [REDACTED] evaluation was provided, to the Student, at no cost (T 41); - A review of what the evaluation included (T 41-42, 45); - Student tested below grade level; - Student was entering [REDACTED], and performing at levels ranging from 2nd to low [REDACTED] (T 42); - Recommendation for tutoring services is made based upon the [REDACTED] evaluation, Student’s IEP (Ex D), and neuropsychological evaluation (Ex C), and Witnness experience in special education (T 45-46, 48-49); - Based on the above factors that “…I came up with the recommendation of an average of approximately six to eight hours per week over, roughly, a two-year school time period for a total of 600 hours.” (T 46); - Witness Testified about the overall purpose of the evaluation, and recommendation: “The purpose of my evaluation was to determine [Student] grade level functioning in each of the core academic skill areas and my recommendations for remediating those skills. And as I've described, she needs remediation across the board…I would say that writing was her weakest skill, where she came out at an upper-[REDACTED] level, but her other skills are not that far off. She was also at an upper-[REDACTED] level for math. So she really needs help across the board…Again, I would say we would maybe start with a slightly higher emphasis on writing and math, with a little bit less of an emphasis on reading. But again, reading affects math and affects so many other skills. So I really feel strongly that she needs help across the board.” (T 50); - Rate for tutoring service is [REDACTED] per hour (T 51); and - Witness recommends the service hours be without expiration, to ensure they can be delivered if there is some intervening event that precludes service delivery (T 53-54).

[REDACTED], Parent

Witness provided Testimony via Affidavit (Ex G), supplemented with Testimony at Hearing which included: - Witness does not recall the IEP meeting of July 2022 (T 58 & 62); and - Witness was asked if she recalls discussing her request for a specialized nonpublic school at any IEP meeting: “I've -- I've been discussing nonpublic schools and -- and tutoring with DOE for a few years. And all you guys told me is -- all you guys tell me at these meetings is: We're going to try this; we're going to try this; we're going to try this. And it never works. Whatever you guys try, it never work.” (T 64)

A Individualized Education Program (IEP) 4.8.2021

At the time Student was in the [REDACTED], classified Speech and Language Impairment. (Ex A 1)

IEP includes: - Assessment Data from 01/14/2001 (Ex A 1); - Areas of Special Education need include: Reading, Writing, Math, and Social Development (Ex A 2-3); - Recommendation is made for an Integrated Co-Teaching (ICT) Class, Occupational Therapy (OT), Physical Therapy (PT) and Speech Language Therapy (SLT) (Ex A 20-21); - Student instructional and Functional Levels are noted to be at [REDACTED] for Reading and Math (Ex A 25); and - Standard Promotional Criteria is noted. (Ex A 26);

B Individualized Education Program 2.28.2022

At the time Student was in the [REDACTED], classified Speech and Language Impairment. (Ex B 1)

IEP includes: - Assessment Data of Student Levels:

Reading – [REDACTED]

Writing – 1st Grade

Math – Kindergarten - Areas of Special Education need include: Academics, Speech, and Social Development (Ex B 2-5); - It is noted that Student grade average in Reading as dropped (Ex B 5); - Management needs are noted to include 1:1 support (Ex B 7); - Recommendation is made for a Special Class 12:1, Occupational Therapy (OT), Physical Therapy (PT) and Speech Language Therapy (SLT) (Ex B 22-23); - Student instructional and Functional Levels are noted to be at [REDACTED] for Reading and Kindergarten for Math (Ex B 28); and - Standard Promotional Criteria is noted. (Ex B 29)

6 Prior Written Notice 3.21.22

Confirms Student IEP recent recommendations.

9 Speech Progress Report 2.25.22

Confirms Student need for SLT service. 7 OT Progress Report 2.14.22

Confirms Student need for OT services. 8 OT Progress Report 3.26.21

Confirms Student need for OT services.

It is noted that the current and new annual goals are identical in each OT Progress Report. (Ex 7 & Ex 8)

C Neuropsychological Evaluation 4.22.2022

Details areas of Student delay and need, noting Student history of developmental delays in speech, fine motor skills, and gross motor Skills/ (Ex C 1)

This assessment confirms that Student challenges include: o Attention Deficit Hyperactivity Disorder, Inattentive Presentation o Moderate likelihood of attention deficits o Evidenced notable variability in her scores within and across various tests, reflecting waxing and waning of her attention, confirming inattention o Parent indicates Student is At-Risk for depression and anxiety o Depression and anxiety are now a significant concern of her mother and these issues are more clear now than they were at the time the assessment was conducted o Academic testing reflected a good deal of variability, but most apparent was a clear-cut learning disability involving mathematics o Clear evidence of slow speed of information processing.

Recommendation is made to continue Student accommodations, including: 50% additional time on exams; and Counseling, both in school as well as outside of school. (Ex C 1)

Report concludes that: “It seems that [Student’s] many challenges, including her cognitive and intellectual challenges, combined with her emotional challenges, articulated by her mother, especially during the feedback session, are not being met by her current school placement. [Student] needs a specialized school placement that can attend to her many special needs…[Student] has significant learning challenges. [Student] “still, at her age, cannot tie her shoes. Her emotional state is worsening. A more appropriate school placement is warranted.” (Ex C 6)

2 Individualized Education Program (IEP) 7.20.22

At the time Student was on her way to the [REDACTED], classified Other Health Impairment. (Ex 2-1)

IEP includes: - Assessment Data of Student Levels:

Reading – [REDACTED]

Writing – 1st Grade

Math – Kindergarten (Ex 2-1) - Areas of Special Education need include: Academics, Speech, and Social Development (Ex 2-1 to 2-5); - It is noted that Student grade average in Reading as dropped (Ex B 5); - Management needs are noted to include 1:1 check ins (Ex 2-8); - Recommendation is made for a Special Class 12:1, Counseling, Occupational Therapy (OT), Physical Therapy (PT) and Speech Language Therapy (SLT) (Ex 2-23 & 2-24); - Student instructional and Functional Levels are noted to be at [REDACTED] for Reading and Kindergarten for Math (Ex 2-29); and - Standard Promotional Criteria is noted. (Ex 2-30)

5 Prior Written Notice 7.22.22

Confirms Student IEP recent recommendations.

D Individualized Education Program 11.30.2022

At the time Student was in the [REDACTED], classified Emotional Disability. (Ex D 1)

IEP includes: - Assessment Data is not dated, but shows areas of academic delay (Ex D 1-2); - Areas of Special Education need include: Academics, Speech, Physical, and Social Development (Ex D 2-8); - Management needs are noted to include 1:1 support (Ex D 7); - Notes the Student’s needs are not being met by the current school placement (Ex D 8); - Recommendation is made for a Special Class 8:1 + 1 Counseling, Occupational Therapy (OT), Physical Therapy (PT) and Speech Language Therapy (SLT) (Ex D 22-23); - Student instructional and Functional Levels are noted to be at Pre-Kindergarten for Reading and Math (Ex D 28); and - Standard Promotional Criteria is noted. (Ex D 29)

4 Prior Written Notice 12.9.22

Confirms Student IEP recent recommendations.

E Correspondence from [REDACTED] 8.14.2023

Assessment of Student, on August 12, 2023, was conducted to determine academic areas of strength and weakness and her specific instructional needs.

Assessments included: Wide Range Achievement Test (WRAT); Test of Written Language (TOWL); and Qualitative Reading Inventory.

Assessments evidence Student levels all below her grade level (soon to enter

[REDACTED]): o upper second grade level for mathematics o upper third grade level for decoding o low fourth grade level for spelling o third grade level for reading comprehension o upper second grade level for writing

Evaluator reviewed IEP dated 11/30/22, her neuropsychological evaluation dated

4/22/22, and this evaluation. (Ex C & D)

Evaluator concludes: “…it is clear that [Student] is in critical need of multi-sensory instruction in reading and spelling, particularly using the Orton Gillingham approach. It is also important that she receive structured, multi-sensory instruction to build her written language, mathematics, and reading comprehension skills.”

Recommendation is made that Student receive 600 hours of one-on-one multi-sensory tutoring using the Orton Gillingham technique to develop her reading and spelling skills, as well as similar multi-sensory instructional tools to build her written language, mathematics, and reading comprehension skills.

Evaluator is confident that this type of instruction will help Student tremendously.

10 Individualized Education Program 12.4,23

At the time Student was in the [REDACTED], classified Emotional Disability. (Ex 10-1)

IEP includes: - Assessment Data includes academic levels ranging from 1st grade for Math to [REDACTED] for Comprehension (Ex 10-2); - IEP notes Student behaviors and needs interfere with her ability to make greater progress academically (Ex 10-8); - Despite reference to Student behaviors impacting her education, the IEP fails to recommended behavior strategies or a Behavior Intervention Plan (BIP) (Ex 10-11); - Student, at the time, was recommended to an 8:1 class, however, the IEP notes Student is in a 12:1+1 Class (Ex D 8) - Areas of Special Education need include: Academics, Speech, Physical, and Social Development (Ex 10-2 to 10-10); - Management needs are noted to include small group instruction to address individual needs, notably removing reference to previously needed 1:1 support (Ex 10-10 to 10-11); - Recommendation is made for a Special Class 12:1 + 1 Counseling, Occupational Therapy (OT), Physical Therapy (PT) and Speech Language Therapy (SLT) (Ex 10-27 to 10-28); - Student instructional and Functional Levels are noted to be at [REDACTED] for Reading and 1st Grade for Math (Ex 10-34); and - Standard Promotional Criteria is noted. (Ex 10-36)

11 Prior Written Notice 12.6.23

Confirms Student IEP recent recommendations.

12 Progress Report 12.8.23

Counseling Report was completed during Student’s [REDACTED] year, and continues to raise concerns, warranting continued Counseling services.

F Affidavit of [REDACTED], Director [REDACTED] 12.13.2023

Director of [REDACTED], and Student’s evaluator, provides Testimony that includes: - A review of her credentials and experience (Ex F 1); - A review of assessment procedures related to the Student (Ex F 2-3; - A review of the basis of her ultimate recommendation for the Student (Ex F 2-3); - Recommendation is made of 600 hours of individual tutoring to address Student academic delays; - Cost of recommended services, if via [REDACTED], are [REDACTED] per service

hour. (Ex F 3)

G Affidavit of [REDACTED], Parent 12.14.2023

Student’s Parent provides Testimony that includes: - Student is diagnosed with ADHD and Learning Disorder in Mathematics (Ex H 1); - Student IEP, of 04/08/2021, recommended an ICT class (A 20), however the Student was placed in a class with only one teacher, and 28 students (Ex G 2); - Student continued to struggle and Parent recounts Student’s academic challenges, as well as request for Student evaluation, in early 2022; - Parent obtained evaluation privately, and provided it to the DOE (Ex C, Ex G 2-3); - IEP meeting took place, on 11/30/2022, and Student was continuing to lack progress (Ex D); - Student attended the recommended placement, and Parent believes it did not address Student needs (Ex G 3); - Parent details Student frustration, related to school (Ex G 3); - Parent believes Student needs a specialized non public school to meet her unique needs; - Parent attended IEP meeting in November (Ex D), and the CSE indicated that Student made progress, which Parent does not see; - At the meeting, Parent was informed that Student was not receiving her related services because there was a provider shortage at the school. And Parent was provided with a RSA and called providers from the list. However, no one is able to take on the Student; - Parent believes Student requires a lot of remediation because she struggles with basic skills; and - Student continues to struggle without appropriate support. (Ex G 4)

H Request for Impartial Hearing/Due Process Complaint (DPC) 11.8.2023

Details allegations and sought after relief, related to the 22/23 and 23/24 school years.

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (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 v. T.A., 129 S. Ct. 2484, )2491 [2009]; Bd. of Educ. 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; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 [2d Cir. June 24, 2013]; R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012], cert. denied 2013 WL 1418840 [U.S. June 10, 2013]; 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. Florida 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]). 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., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]; Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 [S.D.N.Y. Feb. 9, 2007]).

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; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 [2d Cir. Aug. 16, 2010]; E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 [N.D.N.Y. Aug. 21, 2008], aff'd, 2009 WL 3326627 [2d Cir. Oct. 16, 2009]; Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 [S.D.N.Y. 2007], aff'd, 2008 WL 3852180 [2d Cir. Aug. 19, 2008]).

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 statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and . . . affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 [2d Cir. 2008]; Perricelli, 2007 WL 465211, at *15). 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 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; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 [S.D.N.Y. 2010], aff'd, 2012 WL 4946429 [2d Cir. Oct. 18, 2012]; E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 [S.D.N.Y. 2009]; Patskin v. Bd. of Educ., 583 F. Supp. 2d 422, 428 [W.D.N.Y. 2008]).

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]; Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6[S.D.N.Y. July 3, 2008] [noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student]), 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]; see also Application of the Dep't of Educ., Appeal No. 07-018; Application of a Child with a Disability, Appeal No. 06-059; Application of the Dep't of Educ., Appeal No. 06-029; Application of a Child with a Disability, Appeal No. 04-046; Application of a Child with a Disability, Appeal No. 02-014; Application of a Child with a Disability, Appeal No. 01-095; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). 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, 369-70 [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).

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). A private school placement must be "proper under the Act" (Carter, 510 U.S. at 12, 15; Burlington, 471 U.S. at 370), i.e., the private school offered an educational program which met the student's special education needs (see Gagliardo, 489 F.3d at 112, 115; Walczak, 142 F.3d at 129). A parent's failure to select a program approved by the State in favor of an unapproved option is not itself a bar to reimbursement (Carter, 510 U.S. at 14). The private school need not employ certified special education teachers or have its own IEP for the student (Carter, 510 U.S. at 13-14). Parents seeking reimbursement "bear the burden of demonstrating that their private placement was appropriate, even if the IEP was inappropriate" (Gagliardo, 489 F.3d at 112; see M.S. v. Bd. of Educ. of the City Sch. Dist. of Yonkers, 231 F.3d 96, 104 [2d Cir. 2000]). "Subject to certain limited exceptions, 'the same considerations and criteria that apply in determining whether the [s]chool [d]istrict's placement is appropriate should be considered in determining the appropriateness of the parents' placement'" (Gagliardo, 489 F.3d at 112, quoting Frank G. v. Bd. of Educ. of Hyde Park, 459 F.3d 356, 364 [2d Cir. 2006]; see Rowley, 458 U.S. at 207). Parents need not show that the placement provides every special service necessary to maximize the student's potential (Frank G., 459 F.3d at 364-65). 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 final criterion for a reimbursement award is that the parents' claim must be supported by equitable considerations. Equitable considerations are relevant to fashioning relief under the IDEA (Burlington, 471 U.S. at 374; R.E., 694 F.3d at 185, 194; M.C. v. Voluntown Bd. of Educ., 226 F.3d 60, 68 [2d Cir. 2000]; see Carter, 510 U.S. at 16 ["Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required. Total reimbursement will not be appropriate if the court determines that the cost of the private education was unreasonable"]; L.K. v. New York City Dep't of Educ., 674 Fed. App'x 100, 101 [2d Cir. Jan. 19, 2017]). With respect to equitable considerations, the IDEA also provides that reimbursement may be reduced or denied when parents fail to raise the appropriateness of an IEP in a timely manner, fail to make their child available for evaluation by the district, or upon a finding of unreasonableness with respect to the actions taken by the parents (20 U.S.C. § 1412[a][10][C][iii]; 34 CFR 300.148[d]; E.M. v. New York City Dep't of Educ., 758 F.3d 442, 461 [2d Cir. 2014] [identifying factors relevant to equitable considerations, including whether the withdrawal of the student from public school was justified, whether the parent provided adequate notice, whether the amount of the private school tuition was reasonable, possible scholarships or other financial aid from the private school, and any fraud or collusion on the part of the parent or private school]; C.L., 744 F.3d at 840 [noting that "[i]mportant to the equitable consideration is whether the parents obstructed or were uncooperative in the school district's efforts to meet its obligations under the IDEA"]).

Reimbursement may be reduced or denied if parents do not provide notice of the unilateral placement either at the most recent CSE meeting prior to their removal of the student from public school, or by written notice ten business days before such removal, "that they were rejecting the placement proposed by the public agency to provide a [FAPE] to their child, including stating their concerns and their intent to enroll their child in a private school at public expense" (20 U.S.C. § 1412[a][10][C][iii][I]; see 34 CFR 300.148[d][1]). This statutory provision "serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a [FAPE] can be provided in the public schools" (Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 [1st Cir. 2004]). Although a reduction in reimbursement is discretionary, courts have upheld the denial of reimbursement in cases where it was shown that parents failed to comply with this statutory provision (Greenland, 358 F.3d at 160; Ms. M. v. Portland Sch. Comm., 360 F.3d 267 [1st Cir. 2004]; Berger v. Medina City Sch. Dist., 348 F.3d 513, 523-24 [6th Cir. 2003]; Rafferty v. Cranston Public Sch. Comm., 315 F.3d 21, 27 [1st Cir. 2002]); see Frank G., 459 F.3d at 376; Voluntown, 226 F.3d at 68).

DOE offer of FAPE for the 22-23 and 23-24 School Years The DOE opted not to present a defense to the Parent’s allegations, beyond submission of documents, and arguments are Hearing. Ultimately, the DOE was unable to support an offer of FAPE for the relevant school years.

The district has presented no witnesses in this matter. Although the district submitted various documents including a IEPs, it is well established that an IEP does not on its own, without testimony to explain its appropriateness, establish that a FAPE has been provided. See e.g. R.E. v. N.Y.C. Dep’t of Educ., 694 F. 3d 167, 185-186 (2d Cir. 2012); L.O. v. N.Y.C. Dep’t of Educ., 822 F2d 95,111 (2d Cir. 2016) Accordingly, I conclude that the district has not met its burden to establish that it provided a FAPE.

The DOE has not evidenced development of appropriate IEPs for the commencement of the 22-23 or 23-24 school years.

A review of the IEPs entered into evidence, viewed individually and historically, expose a variety of deficiencies, weighing against the ability to offer a FAPE for the school years at issue.

Beginning in the Student’s [REDACTED] school year the Student was performing slightly below grade level, with instructional and functional Levels noted to be at [REDACTED] for Reading and Math (Ex A 25); and was subject to Standard Promotional Criteria is noted. (Ex A 26)

While in [REDACTED] the Student was noted to be performing at the same [REDACTED] level for Reading, but somehow regressed to a Kindergarten for Math (Ex B 1 & 28); and was still subject to the same Standard Promotional Criteria is noted. (Ex B 29)

Parent obtained evaluation, of 04/22/2022, noted concerns, and made recommendations that included: “[Student’s] many challenges, including her cognitive and intellectual challenges, combined with her emotional challenges…are not being met by her current school placement. [Student] needs a specialized school placement that can attend to her many special needs…[Student] has significant learning challenges. [Student] “still, at her age, cannot tie her shoes. Her emotional state is worsening. A more appropriate school placement is warranted.” (Ex C 6)

For the 22-23 school year Student was on her way to the [REDACTED], and still subject to Assessment Data which set Students at:

Reading – [REDACTED] - Writing – 1st Grade - Math – Kindergarten (Ex 2-1)

Student instructional and Functional Levels remain at [REDACTED] for Reading and Kindergarten for Math (Ex 2-29); and Student is still subject to Standard Promotional Criteria is noted. (Ex 2-30)

Another IEP, during the 22-23 school year, continues to show academic delay (Ex D 1-2); call for 1:1 support (Ex D 7); notes the Student’s needs are not being met by the current school placement (Ex D 8); Student instructional and Functional Levels are noted to have regressed to a Pre-Kindergarten for Reading and Math (Ex D 28); and Student continues to be subject to Standard Promotional Criteria is noted. (Ex D 29)

Student regression is never addressed by the DOE, though there is acknowledgement of the inappropriateness of the DOE program, at the time.

Another IEP, of 12.4,23, while Student is attending [REDACTED], updates Student academic levels to 1st grade for Math to [REDACTED] for Comprehension (Ex 10-2), still well below Student’s current grade level.

This IEP notes Student behaviors and needs interfere with her ability to make greater progress academically (Ex 10-8), yet despite reference to Student behaviors impacting her education, the IEP fails to recommended behavior strategies or a Behavior Intervention Plan. (BIP) (Ex 10-11)

Student, at the time, was recommended to an 8:1 class, however, the IEP notes Student is wrongly placed in a 12:1+1 Class. (Ex D 8)

Student instruction and functional Levels are noted to be at [REDACTED] for Reading and 1st Grade for Math (Ex 10-34), still well below grade level; and Student again remains subject to Standard Promotional Criteria is noted. (Ex 10-36)

No explanation is offered, by the DOE, as to how the Student was promoted from grade to grade, despite being so far behind academically.

Evidence is not presented as to the capability of each IEP to offer a FAPE, nor as to any progress made by the Student , via the services offered in any IEP.

DOE offered no evidence that the Parent in any way frustrated any attempt of the DOE to offer a FAPE for either the 22-23 or 23-24 school years.

I find the DOE failed to offer the Student a FAPE for both the 22-23 and 23-24 school years.

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]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep.

Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted 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.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v. Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent). There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide FAPE.

A FAPE has already been found to have been denied the Student for the 22-23 and 23-24 school years.

Evidence is not presented to rebut the conclusions of the Parent obtained Student evaluation, and recommendations. (Ex E & F, and T 45-46, 48-49 & 50)

Parent evidences a reasonable basis for award of compensatory services, in light of the DOE failure, as detailed below. (Ex E & F, and T 45-46, 48-49 & 50)

Student delays, and associated regression, are found to have been caused by the DOE failure to offer the Student a FAPE, for the 22-23 and 23-24 schoolyears.

Student is currently in [REDACTED], several years behind academically, and delayed in areas which require a variety of related services. The DOE has also not provided any evidence that the Student’s mandated related services have been delivered.

Student assessment results and recommendation are not contested by any contrary evidence, A review of assessment procedures related to the Student (Ex F 2-3); along with basis for the ultimate recommendation for the Student (Ex F 2-3); are both evidenced.

Recommendation is made of 600 hours of individual tutoring to address Student academic delays, with a cost, if via [REDACTED], are [REDACTED] per service hour. (Ex F 3)

I find this to be an appropriate award of compensatory services, in light of the DOE failure to offer a FAPE for the 22-23 and 23-24 school years.

The Student is mandated to receive a variety of related services through the e 22-23 and 23-24 school years, each delineated in the respective IEPs.

The DOE has not rebutted the Parent’s allegation of a lack of delivery of Student’s recommended related services over the past two years. (Ex H & G 4)

The DOE was unable to evidence any of the related services for the Student for the 22-23 or 23-24 school years. (Ex 2-23 & 2-24, Ex D 22-23 & Ex 10-27 to 10-28)

In light of the DOE failure to offer a FAPE, and failure to evidence any appropriate delivery of Student services, I find the sought after relief of 40 hours each of Compensatory Services for each related service area to be appropriate.

I note that the DOE is encouraged to facilitate the services awarded hereunder, meaning the DOE can propose a service provider for any or all of the awarded services, to be considered by the Parent. Thie would likely both decrease the cost to the DOE and more quickly enable the Student to obtain the awarded services.

ORDER

1. The Department of Education (DOE) failed to offer the Student a FAPE for the 22-23 and 23-24 school years.

2. The DOE shall fund compensatory services for the Student, to be utilized by 12/31/2025, as follows:

- 600 hours of individual tutoring to address Student academic delays, with a cost, of up to [REDACTED] per service hour, via qualified agency, such as [REDACTED].

3. The DOE shall directly authorize and fund the following Compensatory services for the Student via Parent chosen provider, with customary rate to be set by each respective provider, for each service listed below. Customary rate being the rate most commonly charged by the provider for the specific service rendered. Parent shall have until 12/31/2025 to utilize the Compensatory services. o 40 hours of Physical Therapy (PT) o 40 hours of Occupational Therapy o 40 hours of Speech Language Counseling (SLT) o 40 hours of Counseling

4. The DOE shall provide Parent with any documents or forms necessary to facilitate delivery and finding of services under this Order, within ten days of the date of this Order.

5. This decision is subject to appeal and review by the State Review Officer.

DATED: JANUARY 1, 2024

DANIEL AJELLO

DANIEL AJELLO

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.