I. Introduction

This proceeding arises under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) and Article 89 of the New York State Education Law.  Petitioner (the parent) appeals from a decision of an impartial hearing officer (IHO) which denied her request that respondent (the district) fund her son's compensatory education services for the 2023-24 school year.  The appeal must be sustained in part.

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 IHO (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]).  The appealing party or parties must identify the findings, conclusions, and orders of the IHO with which they disagree and indicate the relief that they would like the SRO to grant (8 NYCRR 279.4).  The opposing party is entitled to respond to an appeal or cross-appeal in an answer (8 NYCRR 279.5).  The SRO conducts an impartial review of the IHO's findings, conclusions, and decision and is required to examine the entire hearing record; ensure that the procedures at the hearing were consistent with the requirements of due process; seek additional evidence if necessary; and render an independent decision based upon the hearing record (34 CFR 300.514[b][2]; 8 NYCRR 279.12[a]).  The SRO must ensure that a final decision is reached in the review and that a copy of the decision is mailed to each of the parties not later than 30 days after the receipt of a request for a review, except that a party may seek a specific extension of time of the 30-day timeline, which the SRO may grant in accordance with State and federal regulations (34 CFR 300.515[b], [c]; 8 NYCRR 200.5[k][2]).

III. Facts and Procedural History

The student has received diagnoses of cerebral palsy, epilepsy, left-sided hemiplegia, dysphagia, intellectual disability (mild), language disorder, developmental coordination disorder, polymicrogyria, heterotopia, and global developmental delays (Parent Exs. F at p. 3; L at p. 1; N at pp. 6-7; P ¶ 5).[1]  The student received early intervention (EI) services in another state prior to relocating to the district in summer 2021 (Parent Ex. P ¶ 9 ).  According to the parent, although she reached out to the district at that time, the student "did not receive his first pre-school IEP until November 2, 2022" (id.).

On November 2, 2022, a Committee on Preschool Special Education (CPSE) convened and found the student eligible for special education services as a preschool student with a disability (see generally Parent Ex. C).  The CPSE recommended a 12-month program that consisted of a 12:1+2 special class together with three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual occupational therapy (OT), and three 30-minute sessions per week of individual physical therapy (PT) (Parent Ex. C at pp. 1, 17-18).  Additionally, the November 2022 CPSE recommended individual health paraprofessional services for the student (id. at p. 18).  The November 2022 CPSE recommended that the student attend ADAPT Community Network (ADAPT) for preschool (Parent Exs. D; P ¶¶ 11-12, 15).

The district's final notice of recommendation dated November 2, 2022 and notice of placement (for 12-month services) stated that the student's placement consisted of a 12:1+3 special class and not the November 2022 IEP recommendation for a 12:1+2 special class (compare Parent Exs. B; D, with Parent Ex. C at pp. 1, 17).

Next, on April 24, 2023, the CSE convened without the parent and found the student eligible for special education services as a student with multiple disabilities (see generally Parent Ex. F).[2]^, [3]  The April 2023 CSE recommended 12-month services in a district specialized school which consisted of a 12:1+1 special class in math, English language arts (ELA), social studies, and science together with three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual PT, and three 30-minute sessions per week of individual speech-language therapy (Parent Ex. F at pp. 17-18, 22; Dist. Ex 2 at pp. 1-2).  The April 2023 CSE also recommended full time individual paraprofessional services for the student's health, ambulation, seizures, and safety/comfort needs (Parent Ex. F at p. 18).  In addition, the April 2023 CSE recommended special transportation accommodations/services which consisted of a 1:1 paraprofessional, lift bus, air conditioning and climate control, limited time travel, route with fewer students, door-to-door busing, and wheelchair access (id. at pp. 21-22).  On April 27, 2023, the district sent the parent a prior written notice of the recommendations contained in the April 2023 IEP and a consent for the initial provision of services (see Dist. Ex. 2).

The student began attending pre-kindergarten in a 12:1+3 classroom with related services at ADAPT in April or May 2023 and continued there to mid-August 2023 when he aged out of preschool services (Parent Exs. N at pp. 1, 2; P ¶ 12).

A. Due Process Complaint Notice

In a due process complaint notice dated September 11, 2023, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 school year (see generally Parent Ex. A).  In particular, the parent alleged that the district failed to adequately identify the student's needs, and therefore, failed to offer sufficient support and services for the student (Parent Ex. A at p. 5).  The parent also alleged that the April 2023 CSE meeting was held without the parent, and no new testing was conducted, which lead to an IEP that did not reflect the student's current needs (id.).  In addition, the parent alleged that the district did not conduct necessary evaluations for assistive technology, oral/motor, and feeding support, despite the student's needs in these areas (id.).  Further, the parent argued that the April 2023 IEP failed to recommend assistive technology, mobility support, and related services such as aquatic therapy and nursing services for the student's seizure disorder (id. at p. 6).  The parent asserted that the district's recommendations were predetermined, and actions significantly impeded the parent's opportunity to participate meaningfully in the IEP development (id. at pp. 5-6).

Additionally, the parent requested that the student's pendency services consist of the program contained in the November 2022 IEP, which recommended a 12:1+3 special class with related services of three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, and three 30-minute sessions per week of individual PT together with health paraprofessional services, transportation paraprofessional services, and placement at ADAPT (Parent Ex. A at p. 7).

As relief, the parent requested a finding that the district failed to offer the student a FAPE for the 2023-24 school year (Parent Ex. A at p. 7).  The parent also requested that the district conduct an assistive technology evaluation, a PROMPT speech-language evaluation, and fund an independent neuropsychological evaluation (id.).  The parent requested placement of the student at ADAPT and that the student receive appropriate special education transportation to and from ADAPT for the 2023-24 school year (id. at p. 8).  Lastly, the parent requested compensatory education services for any time in which the district failed to implement pendency (id.).[4]

B. Impartial Hearing and Subsequent Events

After a prehearing conference on October 17, 2023, and pendency hearings on November 2, 9, and 17, 2023 (Tr pp. 1-87).  The IHO issued an interim decision regarding pendency dated November 25, 2023, she  ordered the district to fund a 12:1+3 special class at ADAPT with three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual PT, and classroom paraprofessional and transportation paraprofessional services, all retroactive to the date of filing of the due process complaint notice dated September 11, 2023 (see IHO Ex. I). An impartial hearing continued on November 27, 2023 and concluded on October 30, 2024 after an additional 15 days of proceedings (Tr. pp. 88-198).  In an opening statement during the evidentiary phase of the hearing, the parent's attorney explained subsequent events had occurred since the due process complaint had been filed, that the school-aged placement issues had been resolved after a new IEP had been developed for the student in May 2024, and that the only live issue for the hearing was compensatory education due to the student missing the "first semester" of kindergarten, prior to the point in time when the district implemented the student's pendency placement at ADAPT (Tr pp. 156-58).[5]

According to the parent, the student was "home" from September through November 2023 and began attending kindergarten at ADAPT on December 4, 2023 "through a pendency order" (Parent Ex. P ¶ 16; see Parent Ex. N at p. 2).  Also on December 4, 2023, a private neuropsychological evaluation of the student was conducted (Parent Ex. N at pp. 1-10).  The private evaluator recommended that the student "be educated at ADAPT or a facility with similar services and accommodations as he require[d] an educational program in a non-public school in a specialty program" (id. at p. 7).  Additionally, the evaluator determined that because the student "did not receive education for almost 2 years of preschool," he was "entitled to compensatory hours" for "all" of the 2021-22 school year and "most" of the 2022-23 school year (id. at p. 8).  In closing briefs, the parties set forth their arguments regarding compensatory education relief wherein the parent sought 500 hours of special education instruction from a provider of the parent's choosing at "market rate" and the district noted that the student had begun attending ADAPT in accordance with the pendency order argued that the compensatory education should be denied or, in the alternative "limited to the actual missed hours of schooling" because the evidence did not support the 500 hours sought by the parent (IHO Exs. II, III).

C. Impartial Hearing Office Decision

In a decision dated February 5, 2025, the IHO found that the district failed to offer the student a FAPE for the 2023-24 school year but denied the parent's request for compensatory education services (IHO Decision at pp. 17-18).  Specifically, with respect to the parent's request for compensatory education, the IHO noted that the student was making progress at ADAPT and the evidence in the hearing record did not support the assertion by a private expert from EBL Coaching (EBL) that 500 hours were necessary to address the student's educational deficits (id. at p. 17).  The IHO found that the January 2024 progress reports indicated that the student was making progress (id.).  Additionally, the IHO noted that the neuropsychological evaluation stated that compensatory services should be provided for the student's lost educational time from the preschool years, but the IHO found that  "[t]he parent's case is premised on years of failure by the [district] to provide the appropriate placement and services to this student, however the parent has only alleged the [school year] in question and cannot at hearing decide to lump together many additional years of claims" (id. at pp. 17-18).  Furthermore, the IHO found that the parent failed to present witness testimony from ADAPT relating to the student's progress and need for compensatory services (id.).

Next, the IHO found that the witness from EBL who recommended the compensatory tutoring failed to specify how 500 hours of tutoring would "bring the student at the level of his peers" based on the failure of the district to offer the student an appropriate placement from "sometime in August 2023" (IHO Decision at p. 18).  Ultimately, the IHO found that the evidence in the hearing record did not support the parent's request seeking compensatory education relief (id.).  The IHO found a lack of evidence as to the number of days of school the student missed (id.).  Accordingly, the IHO denied the parent's requested relief for 500 hours of compensatory education services from a provider of the parent's choosing at market rate (id.).

IV. Appeal for State-Level Review

The parent appeals, alleging in an amended request for review that the IHO failed to award compensatory education services for the district's failure to offer the student a FAPE from September 7, 2023 through to December 4, 2023.

The parent argues that the IHO failed to apply and consider the correct legal standards  with respect to compensatory education and the decision left the parent with "an empty victory."  The parent asserts that the IHO incorrectly found a lack of evidence as to the number of days the student missed because the evidence in the hearing record "clearly established" that the student missed all days of school between September 7, 2023 through December 4, 2023 since an order of pendency was not issued until November 25, 2023 ordering placement of the student at ADAPT.  The parent calculated that the student missed 53.5 days of school which took into consideration holidays and school closures.

Next, the parent argues that the IHO failed "to consider the [district's] long-term inequitable behavior toward [the student] in refusing to award any compensatory relief."  The parent explained that the IHO incorrectly failed to consider the district's prior denials of education including the 2021-22 school year and "almost the entire" 2022-23 school year.

The parent also argues that the IHO improperly shifted the burden of proof to the parent by requiring evidence that the student could not make future progress without compensatory education.  Further, the parent claims that the IHO erred in requiring the parent to produce a witness from ADAPT to testify about the student's need for compensatory education.  The parent asserts that the IHO failed to consider that the student's "lost time at ADAPT equal[ed] lost educational gains."

As relief, the parent seeks a reversal of the IHO's decision and an award of 500 hours of compensatory special education and "additional compensatory" related services.

In its answer, the district denies the material allegations contained in the request for review.  First, the district argues that the amended request for review should be dismissed because the parent failed to timely serve the verification to the amended request for review or a notice of request for review.  Second, the district argues that the parent's allegations in the due process complaint notice "were restricted" to FAPE deprivations related to the 2023-24 school year and that the parent's arguments for 500 hours continued to be based on additional assertions of deprivations from the 2021- 22 and 2022-23 school years that were not the subject of this proceeding.  Third, the district argues that the parent made contradictory arguments with respect to the number of days requested for compensatory education, i.e., seeking approximately one year of services at one point, then only July through November 2023, and now 53.5 days on appeal from the IHO decision.  Fourth, the district contends that relief should be denied because the evidence in the hearing record failed to demonstrate the student's need for 500 hours of compensatory education and that at hearing the parent "intentionally muddied" the waters to make it appear that the three-month deprivation of FAPE was longer than it was.  Alternatively, the district argues that if compensatory education is awarded it should be limited to the number of hours that correspond to the three-month denial of FAPE which was 53.5 days.

In a reply to the answer, the parent concedes that an e-mail error on the part of the parent's attorney resulted in late transmission of a portion of the amended documents but asserts that the district failed to demonstrate sufficient prejudice regarding transmission of the verification and notice of request for review that were to accompany the amended request for review.

In this instance, the parent timely initiated this appeal by service the notice of request for review as well as service of a properly verified request for review.  Only upon filing of the original pleadings did the parent then seek permission to amend her request for review after the proceeding was already underway.  Contrary to the district's argument, the defect in service of the amended documents would result not in outright dismissal, but instead the parties would have been required to proceed with the original pleadings served upon the district as carefully outlined to the parties in correspondence from the Office of State Review.  However, the district did not adhere to abandonment provisions that were specified in the correspondence sent by the Office of State Review under my direction that called for the district to answer the original request for review in the event the parent failed to comply with the conditions for amending the request for review.  Instead, the district deviated from those specified procedures and filed an answer to the parent's amended request for review. The amended request for review merely further clarified the same issues and relief sought in the parent's original pleading.  Thus, the net result is that neither party fully followed directions. In this instance, outright dismissal of the appeal as the district requests is not appropriate and, based on the parties' respective conduct, I will instead proceed with the parties' submissions including the amended request for review which was verified by the parent.  However, let this be a cautionary tale to both parties about greater observance and care with the formalities of the process.

V. Applicable Standards

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., 758 F.3d at 451; P. v. Newington Bd. of Educ., 546 F.3d 111, 123 [2d Cir. 2008] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 [2d Cir. 2015]; 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"]).

VI. Discussion

A. Preliminary Matter

1. Scope of Impartial Hearing and Scope of Review

In this case, the IHO found that the district denied the student FAPE for the 2023-24 school year (IHO Decision at 3, 14, 17-18), and this determination has not been appealed by the district.  Accordingly, this finding has become final and binding on the parties and will not be reviewed on appeal (34 CFR 300.514[a]; 8 NYCRR 200.5[j][5][v]; see M.Z. v. New York City Dep't of Educ., 2013 WL 1314992, at *6-*7, *10 [S.D.N.Y. Mar. 21, 2013]).  However, the parties dispute whether and how much compensatory education relief is appropriate. In considering an award of compensatory education services, the parent faults the IHO for not considering the district's "long-term inequitable behavior," pointing to allegations of the district denying the student a FAPE which included the entire 2021-22 school year and a majority of the 2022-23 school year, as well as holding the April 2023 CSE meeting without the presence of the parent.  On the other hand, the district argues that the due process complaint notice only sought relief for deprivations of FAPE for the 2023-24 school year and not for past denials of FAPE including the 2021-22 and 2022-23 school years.

Generally, the party requesting an impartial hearing has the first opportunity to identify the range of issues to be addressed at the hearing (Application of a Student with a Disability, Appeal No. 09-141; Application of the Dep't of Educ., Appeal No. 08-056).  Under the IDEA and its implementing regulations, a party requesting an impartial hearing may not raise issues at the impartial hearing that were not raised in its original due process complaint notice unless the other party agrees (20 U.S.C. § 1415[f][3][B]; 34 CFR 300.508[d][3][i], 300.511[d]; 8 NYCRR 200.5[i][7][i][a]; [j][1][ii]), or the original due process complaint is amended prior to the impartial hearing per permission given by the IHO at least five days prior to the impartial hearing (20 U.S.C. § 1415[c][2][E][i][II]; 34 CFR 300.507[d][3][ii]; 8 NYCRR 200.5[i][7][b]).  Indeed, "[t]he parent must state all of the alleged deficiencies in the IEP in their initial due process complaint in order for the resolution period to function.  To permit [the parents] to add a new claim after the resolution period has expired would allow them to sandbag the school district" (R.E., 694 F.3d 167 at 187-88 n.4; see also B.M. v. New York City Dep't of Educ., 569 Fed. App'x 57, 58-59 [2d Cir. June 18, 2014]).

When a matter arises that did not appear in a due process complaint notice, the next inquiry focuses on whether the district, through the questioning of its witnesses, "open[ed] the door" to the issue under the holding of M.H. v. New York City Department of Education (685 F.3d at 250-51; see also Bd. of Educ. of Mamaroneck Union Free Sch. Dist. v. A.D., 739 Fed. App'x 79, 80 [2d Cir. Oct. 12, 2018]; B.M., 569 Fed. App'x at 59; J.G. v. Brewster Cent. Sch. Dist., 2018 WL 749010, at *10 [S.D.N.Y. Feb. 7, 2018]; C.M. v. New York City Dep't of Educ., 2017 WL 607579, at *14 [S.D.N.Y. Feb. 14, 2017]; D.B. v. New York City Dep't of Educ., 966 F. Supp. 2d 315, 327-28 [S.D.N.Y. 2013]; N.K. v. New York City Dep't of Educ., 961 F. Supp. 2d 577, 584-86 [S.D.N.Y. 2013]; A.M. v. New York City Dep't of Educ., 964 F. Supp. 2d 270, 282-84 [S.D.N.Y. 2013]; J.C.S. v. Blind Brook-Rye Union Free Sch. Dist., 2013 WL 3975942, *9 [S.D.N.Y. Aug. 5, 2013]).

The due process complaint notice specified on the first page "School Year at Issue: 2023-2024" (Parent Ex. A at p. 1).  Next, the parent sets forth the "Student Background" which provided information pertaining to the September 2022 evaluation process and November 2022 CPSE meeting (id. at pp. 2-4).  The parent also noted that the student began attending ADAPT in May 2023, which continued until August 2023 (id. at p. 4).   In the "Claims" section of the due process complaint notice, the parent specified allegations as to why the district denied the student a FAPE for the 2023-24 school year (id. at pp. 5-7). In a cryptic footnote to the heading the parent also stated "In addition to that which is stated above" (id. at p. 5).  As relief, the parent requested, among other things, a finding that the alleged violations "deprived [the student] of a FAPE for the 2023-2024 school year" and "compensatory education and related services for any time period during which the DOE fails to implement pendency in the last agreed upon placement at Adapt" (id. at pp. 7-8 [emphasis added]).

The parent presented three witnesses: the ADAPT director, the parent, and the director of the agency recommending compensatory services (see Tr. pp. 48-58, 171-76).  The testimony of the ADAPT director related to the student's pendency (Tr. pp. 48-53).  The testimony of the director of the agency recommending compensatory services related to her recommendation for 500 hours of compensatory education (Tr. pp. 171-76; see Parent Ex. O).  However, the district did not present testimony and there was no evidence that the district opened the door to any issues involving the 2021-22 or 2022-23 school years through the cross-examination of the parent's witness (see Tr. pp. 48-58, 171-76).

The IHO made no findings with respect to the 2021-22 or 2022-23 school years and instead concluded that the parent's arguments pertaining school years prior to the 2023-24 school year would not be considered because they were not raised in the due process complaint notice (IHO Decision at pp. 17-18).  Moreover, the IHO found that the parent in her closing added years and facts that were not subject to the 2023-24 school year claims before the IHO (IHO Decision at p. 18; see IHO Ex. II).

The parent's arguments on appeal that the IHO erred and should have found a denial of a FAPE and considered awarding compensatory education for deprivations that included the entire 2021-22 school year and a majority of the 2022-23 miss the mark for several reasons.  During the hearing, the parent stated that the case was specifically about the 2023–24 school year (Tr. p. 156). The parent also indicated that all issues had been resolved except for compensatory education (Tr. pp. 156-57). The request for compensatory education was due to the time it took for the district to implement pendency (Parent Ex. A at p. 8; Tr. p. 158).

The parent contends on appeal that the IHO erred by not finding a denial of FAPE and not awarding compensatory education for the entire 2021–22 school year and a majority of the 2022–23 school year. These contentions are unfounded because they rest on claims that were not properly presented in the operative due process complaint (Parent Ex. A). The due process complaint, drafted and filed by the parent's attorney, explicitly identifies the 2023–24 school year as the school year at issue Parent Ex. A at p. 1 and seeks findings of a denial of FAPE and related relief for that single school year (Parent Ex. A at pp. 1, 7-8). By specifying 2023–24 as the scope of the case and by requesting findings and relief tied to that school year, the pleading provided clear notice that the dispute concerned the 2023–24 school year. The district did not agree to add additional claims and it did not open the door by eliciting testimony from witnesses regarding prior school years.  Accordingly, the IHO correctly confined the proceeding to the 2023-24 school year.

With respect to relief (versus alleged violations), the due process complaint notice must state a "proposed resolution of the problem to the extent known and available to the party at the time" (8 NYCRR 200.5[i][1]; see 20 U.S.C. § 1415[b][7][A][ii]; 34 CFR 300.508[b]). For relief, the parent asked for "compensatory education and related services for any time period during which the DOE fails to implement pendency in the last agreed upon placement at Adapt" Parent Ex. A at p. 8). Pendency or stay-put commenced with the filing of the due process complaint notice dated September 11, 2023, and the parent did not seek compensatory relief for the earlier school years, only for the 2023–24 school year and relief in the form of compensatory education for the preceding school years was relief that should have been stated in the due process complaint notice in accordance with the statutory language.

To be sure, the complaint's background section includes a few narrative references to events in 2021–22 and 2022–23 (Parent Ex. A at pp. 3-4). However, background narratives are not a substitute for clear claims for relief, especially when the leading page of the complaint, and the relief sections so clearly specified that the case was about the 2023-24 school year. The district and the IHO were not required to second guess the parent's representations as drafted by the attorney and again made during the opening statement. A passing or vague footnote cannot override the complaint's unambiguous statement that the case focuses solely on the 2023–24 school year or transform historical context into discrete, justiciable claims for prior years (Parent Ex. A. at p. 5 n2).

Because the due process complaint notice plainly limited this case to the 2023–24 school year, and because the references to the 2021–22 and 2022–23 school years were included only as background and in a vague footnote, the IHO did not err in declining to adjudicate alleged denials of FAPE or compensatory education for those earlier years.  Accordingly, I find that the parent's allegations of the district's "long-term inequitable behavior" from the 2021-22 and 2022-23 school years were outside the scope of the impartial hearing and will not be further discussed or considered in this proceeding.  However, compensatory education for the 2023-24 school year was addressed by the IHO and I will turn next to address the parent's arguments on that front.

B. Compensatory Education Services

Although not pertinent to the ultimate findings in this matter, a brief discussion of the student provides context to understand his needs.  The student's intellectual abilities were in the "extremely low range," he demonstrated a severe to profound expressive language delay, and was found to have a "moderate receptive language delay" (Parent Exs. F at p. 1; M at p. 1; N at p. 6).  He was described as nonverbal and used a combination of sign language, vocalizations, gestures, body language, and facial expressions to communicate (Parent Exs. N at p. 6; P ¶¶ 5-6).  The student was further described to require "full adult assistance" for all activities of daily living skills including dressing and cleaning himself (Parent Ex. N at p. 7; P ¶ 7).  He demonstrated delays in fine motor skills, sensory processing, visual motor and visual perceptual skills, and motor coordination (Parent Ex. L at p. 1).  In addition, the student was non-ambulatory and required the use of a wheelchair for mobility (Parent Exs. F at p. 4; N at p. 1; P ¶ 5).  The student was found to need assistance for standing and could ambulate in a gait trainer with "minimal" assistance (Parent Exs. J at p. 1; L at pp. 1-2).  Further, the parent stated that the student was easily distracted and had difficulty with transitions (Parent Ex. P ¶ 8).

Turning to the points made by the parties' on appeal, the parent first argues that the IHO "improperly shifted the burden to the [p]arent" when she denied any award of compensatory education relief.  Next, the parent argues that the student made "meaningful progress" at ADAPT from the period of May 23, 2023 through mid-August 2023 and from December 4, 2023 through the end of January 2024.  The parent asserts that the student's progress would have continued from September 7, 2023 through December 4, 2023 if the student was in a school program and specifically at ADAPT.  Additionally, the parent argues that the IHO erred in finding that the student's progress at ADAPT when he returned in December 2023 negated any harm to the student during the time he was not in school.  The parent claims that had the student attended school during the first several months of the 2023-24 school year, the student "would have been three months farther along in his progress toward his goals."  Furthermore, the parent states on appeal that the student missed 53.5 days of school between September 7, 2023 through December 4, 2023 and seeks an award of 500 hours of compensatory education for the period of time he was not in school because he "lacked educational foundations across the board, his overall profile, and the assistance he need[ed] to make academic progress" (see also Tr. pp. 171-72; Parent Ex. H).[6]

In contrast, the district argues that the IHO correctly determined that the student did not require compensatory education services to remedy the denial of FAPE and any compensatory education services would be for maximization of the student's education, which is not required by the IDEA.  Alternatively, the district argues that if there is an award of compensatory education the parent was correct that the number of days missed was 53.5 days.  The district argues that the student would be entitled to 1.2 hours of compensatory tutoring per day for the 53.5 days of missed school, resulting in a compensatory award of 64.2 hours (Answer ¶ 10).  The district's argument is derived from a calculation offered by the parent in her closing brief which is based on an argument that 408 school days were missed over three school years and resulting in a conservative suggestion of 1.2 hours per day (IHO Ex. II at p. 26).

As discussed at length above, the IHO properly confined this proceeding to that which was set forth in the parent's due process compliant notice, the 2023-24 school year (Parent Ex. A). As for the parent's burden of proof argument, the parent has made clear that they were not seeking remediation from the district, but from parentally selected providers at "market rates" (Parent Ex. A). Cases on this topic have repeatedly observed that to allow parents to obtain compensatory education from a private provider (particularly at “market” or enhanced rates) without requiring the parent to prove the appropriateness of those services would effectively allow an “end run” around the framework for tuition reimbursement recognized in Burlington/Carter unilateral placement situations, which places the burden to prove appropriateness of the private placement squarely on the parent seeking reimbursement (Application of a Student with a Disability, Appeal No. 25-051; Application of a Student with a Disability, Appeal No. 25-023; Application of a Student with a Disability, Appeal No. 25-023).  In this case, the IHO found that persuasive  evidence in the record was lacking to support the 500 hours of compensatory education relief sought by the parent, and read in its entirely, appeared to impliedly place the burden of production of reliable evidence on the parent (IHO Decision at pp. 17-18).[7]  Where, as here, the parent was seeking compensatory education from a private company at market rates without the consent of public school officials,  I find no error by the IHO in placing the burden of establishing that such relief was appropriate, and the parent's argument to the contrary is without merit.

Turning next to whether the IHO erred in refusing to award any compensatory education relief, the IHO cited numerous legal authorities regarding when it is appropriate to provide compensatory education relief (IHO Decision at pp. 14-15).  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"]).

Before assessing whether compensatory relief is appropriate, I will first examine the alleged deprivations that are within the scope of this proceeding.   The hearing record shows that IHO issued an order of pendency dated November 25, 2023, which found that pendency was based upon the student's November 2022 IEP consisting of a 12:1+3 special class at ADAPT, three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual PT, and individual classroom/transportation paraprofessional services throughout the day retroactive to the date of the filing of the due process complaint notice on September 11, 2023 (IHO Ex. I at p. 5).[8]  The services that the student should have been provided during the first portion of the 2023-24 school year while this proceeding was pending would be consistent with those listed in the November 2022 IEP and there was no dispute that the student did not have any program or placement during the first portion of the 2023-24 school year.  The parties agree that the student missed 53.5 school days for the period of time from September 7, 2023 through December 4, 2023.  Thus I find that the student missed a total of approximately 54 school days.

In connection with the 12:1+3 special class that the student attended, there is no evidence in the hearing record as to the number of hours per day the student received instruction in a special class setting (see Tr. pp. 48-58; Parent Ex. G).  It was also unknown which days of the week the student received related services and whether the student was pulled out of the special class for the related services thereby missing instructional time since the IEP mentioned services being delivered either in the classroom or the therapy room (see Parent Ex. C at pp. 1, 17).  Furthermore, in awarding compensatory services with respect to the special class, the student will not be able to attend an compensatory program at the same time as his current program (see Application of the Bd. of Educ., Appeal No. 25-143 [finding that an IHO erred in ordering 200 hours of placement in a 6:1+3 special class as compensatory education relief when the student was already attending a similar class]).  Therefore, there is no practical way in this case for a 12:1+3 special class to be exactly replicated as compensatory education, in addition to the student's current program, which is a 12:1+4 special class for the 12-month 2024-25 school year (see Tr. p. 52).  However, as described above, the student has substantial cognitive, academic, motor, and language skill needs, and therefore, an award of compensatory education is necessary to remedy the student's lack of programming from September 7, 2023 to December 4, 2023, which was a complete exclusion from services for a significant period of time and thus a gross denial of a FAPE.  I find that an award of 2.5 hours per day of individual instruction for the student is adequate to make-up for the student's lost special class instructional time.[9]  As such, this equates to a total of 130 hours of individual instruction, calculated as 2.5 hours per day for 54 days, to compensate for the lost educational time.  In this case the district did secure placement for the student in ADAPT once the IHO issued the pendency order.  In most cases, the district, as the party responsible to implement special education services in the first place, should be directed to carry out the remedial relief ordered by an administrative hearing officer, and there is no reason in the hearing record to depart from that form of prospective relief (Application of a Student with a Disability, Appeal No. 25-023 [ordering the district to provide prospective compensatory education relief rather than private companies preferred by the parent]).[10]

As for the related services, the November 2022 IEP recommended three 30-minute sessions per week of individual OT, three 30-minute sessions per week of individual PT, and three 30-minute sessions per week of individual speech-language therapy (Parent Ex. F at p. 15).  Therefore, for each related service, the student was entitled to 1.5 hours per week.  In order to remediate the deprivation of related services, he is entitled to 17 hours for each of the related services (OT, PT, and speech-language therapy) as a result of the missed school for 54 days.  Again, the district will be directed to provide these compensatory education services to the student.

With respect to the individual health paraprofessional and individual transportation paraprofessional recommended in the November 2022 IEP, it is impracticable to award paraprofessional service as a compensatory education service in this context because the individual health paraprofessional was recommended to support the student's attendance in the school building including the classroom and therapy rooms and for transportation, during which the student required 1:1 adult supervision (paraprofessional) which cannot be reasonably accomplished through compensatory education services (Parent Ex. C at pp. 6, 18).  Providing additional, compensatory, or make-up paraprofessional hours on top of the existing paraprofessional coverage would not confer an additional meaningful educational or functional benefit. Because paraprofessional services serve an in-the-moment health and safety function in a group setting, retroactive or supplemental hours for this type of service cannot recreate or enhance past access to educational instruction, and they would not further improve the student's current educational experience, progress, or attendance. Again, this would be providing the student with a paraprofessional service on top of the paraprofessional services that the student has been entitled to receive during the pendency of this proceeding, and it is not necessary or appropriate to provide duplicative services in this regard.  Therefore, I decline to award compensatory services for the missed health and transportation paraprofessional services.

VII. Conclusion

Based on the allegations in this proceeding and the evidence in the hearing record, including the severity of the student's needs and lack of any programming or placement for 54 days, I find that the IHO was not required to simply adopt the relief proposed by the parent; however, I find that the IHO nevertheless erred in declining to fashion any relief at all.  Due to the gross denial of a FAPE by the district during the 2023-24 school year, the student is entitled to compensatory education services as detailed herein.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision dated February 5, 2025, is modified by reversing that that portion which found that the student not entitled to any compensatory education services; and

IT IS FURTHER ORDERED that unless the parties otherwise agree, the district shall provide the student with 130 hours of individual instruction by a special education teacher within two years from the date of this decision; and

IT IS FURTHER ORDERED that unless the parties otherwise agree, the district shall provide the student with 17 hours of OT services, 17 hours of PT services, and 17 hours of speech-language therapy services within two years from the date of this decision.