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 district) appeals from a decision of an impartial hearing officer (IHO) which determined it failed to provide respondents' (the parents') son an appropriate educational program for a portion of the 2023-24 school year and awarded compensatory education.  The appeal must be sustained.

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 of the 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

According to the hearing record, the CSE began discussing placing the student at the Wildwood School (Wildwood) during summer 2021 (Dist. Ex. 24 at p. 2).  The student began attending Wildwood in September 2021 (third grade), where he received a combination of in-person and virtual instruction during the 2021-22 school year (Parent Exs. F at p. 1; G at p. 1; Dist. Exs. 8 at p. 1; 9 at p. 1; 11 at p. 1; 24 at pp. 2, 3).  The student continued to be placed at Wildwood by the district for the 2022-23, 2023-24 and 2024-25 school years (Parent Exs. C at pp. 4, 6; D at pp. 4, 5; E at p. 5; Dist. Exs. 6 at pp. 4, 5; 7 at pp. 1, 6-7; 27 at p. 1; 28 at p. 1; 36 at p. 1).[1]

On July 27, 2023, September 19, 2023, October 5, 2023, November 2, 2023, and November 20, 2023, the student was referred to the district by bus drivers for behavioral infractions such as hitting things, spitting at staff, refusing to be seated, or refusing to leave the bus (Parent Exs. J-N).

The CSE convened on November 29, 2023 (Parent Ex. C at pp. 1, 4).[2]  The November 2023 IEP reflected that the November 2023 CSE continued to find the student eligible for special education and related services as a student with multiple disabilities (id. at p. 1).[3]  The November 2023 IEP also indicated that the student had been recommended to receive 12-month services for the 2023-24 school year to be implemented on July 3, 2023 at Wildwood (id. at p. 18).  For summer 2023, the student was recommended to receive five hours per day of instruction in a 6:1+3 special class, three 30-minute sessions per week of a 6:1+3 adapted physical education class, two 30-minute sessions per week of individual speech-language therapy, one 30-minute session per week of individual physical therapy (PT), two 30-minute sessions per week of individual occupational therapy (OT), and one 30-minute session per week of individual psychological counseling services (id.).  For the 10-month 2023-24 school year, the November 2023 IEP reflected that the student's services were to be implemented on September 6, 2023 (id. at p. 15).  The CSE recommended that the student receive five hours per day of instruction in a 6:1+3 special class, three 30-minute periods per week of a 6:1+3 adapted physical education class, three 30-minute sessions per week of individual speech-language therapy, three 30-minute sessions per week of individual OT, one 30-minute session per week of individual PT, one 30-minute session per week of individual music therapy, one 15-minute session per day of individual skilled nursing services, and one 30-minute session per week of individual psychological counseling services (id. at p. 15).  The student was also recommended to receive an assistive technology device, two 15-minute sessions per month of speech-language consultation, monthly social work consultation, and the CSE recommended his parents receive parent counseling and training at least four times per year (id. at pp. 15-16).  The student was recommended for alternate assessment and special transportation (id. at p. 17).  The student's special transportation recommendation included a bus attendant and a buckle guard (id.).

 In a prior written notice dated December 6, 2023, the parents were notified that a CSE had determined that the student's unspecified conduct was a manifestation of his disability (Dist. Ex. 34 at p. 1; see Tr. pp. 127, 143).  The CSE convened on December 7, 2023, and continued to recommend the same 6:1+3 special class and related services as reflected in the November 2023 IEP (compare Parent Ex. D, with Parent Ex. C).

On December 11, 2023, and December 18, 2023, the student was once again referred to the district by the bus driver due to his behavior (Parent Exs. O-P).

In a prior written notice dated January 26, 2024, the district notified the parents that the CSE had recently reviewed the student's special education services and recommended no changes to the student's program (Dist. Ex. 35 at p. 1).

On February 5, 2024, February 7, 2024, February 14, 2024, March 6, 2024, March 7, 2024, March 8, 2024, March 26, 2024, April 9, 2024, and April 16, 2024, the student was the subject of bus referral forms related to his behavior (Parent Exs. Q-Y).[4]

In an email dated April 16, 2024, the district's CSE chairperson notified the parents that the student was suspended from the bus for the next five days and could return to the bus on April 24, 2024 (Dist. Ex. 41 at p. 1).  The April 16, 2024 email further stated that the student was not suspended from school (id.).  Additionally, the CSE chairperson wrote that the parents could bring the student to Wildwood and pick him up and that Wildwood wanted to hold a meeting to discuss the student's current placement (id.).  In a reply to the CSE chairperson dated April 16, 2024, the parents advised that they brought the student to and from school on April 15, 2024, and picked the student up from school on April 16, 2025, of their own accord (id.).

In a letter dated April 16, 2024, the district's CSE chairperson reiterated that the student's "bus riding privileges" had been suspended for five days "beginning April 17 and commencing [sic] April 23rd" (Dist. Ex. 42).  The letter indicated that the student was suspended because he refused to sit down on the bus and was aggressive toward the bus staff (id.).  The letter further stated that "[d]uring the period of suspension, it [wa]s the responsibility of the parents to provide transportation" (id.).  In an email dated April 19, 2024, the CSE chairperson advised the parents that the meeting requested by Wildwood to discuss the student's placement had been scheduled for the following Monday and the parents replied that they would attend by phone (Dist. Ex. 41 at p. 1).

The CSE convened on April 22, 2024 to conduct the student's annual review and to develop an IEP for the 12-month 2024-25 school year, with a projected implementation date of July 8, 2024 (Parent Ex. E at pp. 1, 13; see Tr. p. 53).[5]  For summer 2024, the student was recommended to receive five hours per day of instruction in a 6:1+3 special class, three 30-minute sessions per week of a 6:1+3 adapted physical education class, two 30-minute sessions per week of individual speech-language therapy, and one 30-minute session per week of individual OT (id. at p. 13).  For the 10-month 2024-25 school year, the April 2024 CSE recommended that the student receive five hours per day of instruction in a 6:1+3 special class, three 30-minute periods per week of a 6:1+3 adapted physical education class, three 30-minute sessions per week of individual speech-language therapy, two 30-minute sessions per week of individual OT, and one 30-minute session per week of individual music therapy (id. at p. 12).  The student was also recommended to receive an assistive technology device, two 15-minute sessions per month of speech-language consultation, and the CSE recommended the parents receive parent counseling and training at least four times per year (id. at p. 13).  The student was recommended for alternate assessment and special transportation (id. at pp. 14-15).  The student's special transportation recommendation included a bus attendant and a buckle guard (id. at p. 15).

In a prior written notice dated May 10, 2024, the district notified the parents that the CSE had recently reviewed the student's special education services and recommended that the parents transport the student instead of bussing, to discontinue PT, social work consultation, and speech-language consultation (Dist. Ex. 36 at p. 1).

In a prior written notice dated August 6, 2024, the district notified the parents that the CSE was proposing to amend the student's IEP to include a harness for special transportation (Dist. Ex. 37 at p. 1).[6]

A. Amended Due Process Complaint Notice

In an amended due process complaint notice dated August 12, 2024, the parents alleged that the district denied the student a free appropriate public education (FAPE) for the 2023-24 and 2024-25 school years (see Parent Ex. B).[7]

Regarding the 2023-24 school year, the parents alleged that the district failed to address the student's transportation needs in the student's functional behavioral assessment (FBA), behavioral intervention plan (BIP) or emergency management protocols (Parent Ex. B at p. 2).  Rather than addressing the student's needs, the district unilaterally decided to remove the student from the bus for the remainder of the 2023-24 school year, which the parents alleged was the functional equivalent of removing him from school (id.).  The parents contended that the district improperly effectuated a change in the student's placement and that without transportation the student did not receive any special education and related services for two months (id. at pp. 2-3).

As to the 2024-25 school year, the parents asserted that the district did not have "a plan in place for the upcoming" school year (Parent Ex. B at p. 3).  The parents also alleged that the district failed to recommend a program in the least restrictive environment, did not rely on legally sufficient evaluative information, failed to conduct comprehensive evaluations, failed to develop an appropriate FBA and/or BIP, and impeded their right to participate in the decision making process (Parent Ex. B at pp. 3-4).[8]

For relief, the parents requested funding for a bank of "compensatory services for any time that [the student] did not receive his mandated services" (Parent Ex. B at p. 5).  The parents also requested that an evaluator of their choosing determine the amount of services the student did not receive (id.).  Within the request for compensatory education, the parents alleged that they did not receive parent counseling and training services and requested that the district reimburse them for any travel expenses incurred in the absence of the implementation of services (id. at p. 5).  The parents also requested an "emergency" independent educational evaluation (IEE), that the CSE reconvene to consider appropriate services based on the results of future evaluations, and to provide the student with appropriate supports and services to address his behavioral issues (id. at pp. 5-7).

B. Events Post-Dating the Amended Due Process Complaint Notice

In an email dated August 15, 2024, the district's director of special education and pupil services wrote to the student's mother acknowledging that she had requested a harness to be used during transportation, however use of the harness could not be implemented without written consent (Dist. Ex. 17 at p. 1; see Tr. pp. 80-81).  The district's director of special education and pupil services also indicated that a transportation provider had been obtained for the 10-month 2024-25 school year (id.).  Additionally, the August 15, 2024 email included a copy of a social story used by Wildwood and the transportation provider to assist the student (Dist. Ex. 17 at p. 1).  The director of special education and pupil services requested that the parents review the social story with the student, and she further indicated that she had asked Wildwood to develop a plan to further support the student's bus transitions (id.).  Lastly, the district's director of special education and pupil services requested that a CSE meeting be scheduled to review the bus transition plan (id.).  On August 26, 2024, the student's IEP was amended without a CSE meeting to include the addition of the harness (Dist. Ex. 27 at p. 1; see Tr. pp. 79, 81, 277-78).  In a prior written notice dated August 27, 2024, the district notified the parents that the CSE had recommended adding a harness for special transportation as an amendment to the student's IEP (Dist. Ex. 38 at p. 1).

The CSE convened on September 4, 2024 for a requested review of the student's IEP and recommended additional supports to assist the student with transitioning to and from the bus (Dist. Ex. 28 at pp. 1, 14, 17; see Tr. pp. 84-86, 89).

C. Impartial Hearing Officer Decision

An impartial hearing convened on November 5, 2024 and concluded on November 6, 2024 (Tr. pp. 1-400).[9]  In a decision dated January 25, 2025, the IHO found that the district failed to provide the student with the program recommended for the 2023-24 school year from April 19, 2024 through June 21, 2024  (IHO Decision at p. 10).  The IHO further found that the IEPs developed for the 2023-24 school year met the student's educational needs, however the IHO determined that the district failed to adequately address the student's "grossly inappropriate behaviors during his transportation to and from Wildwood" in the student's FBAs and BIPs (id. at pp. 11, 13).  The IHO then determined that the parents' remaining claims were without merit (id. at pp. 11-20).

In conclusion, the IHO stated that the only remaining issue was "how -- if at all-- to address the fact that [the d]istrict provided no education program to [the s]tudent for the period from April 24, 2024 to June 21, 2024 …a total of forty (40) days" (IHO Decision at p. 20).  The IHO further stated that it was "truly impossible to determine where [the s]tudent would have been had [the d]istrict been able to provide the necessary transportation [the s]tudent required to attend his placement" (id.).  The IHO found that the parents' testimony provided "absolutely no information sufficient to confirm that [the s]tudent suffered any loss due to his inability to attend his program" (id. at p. 21).  In addition, the IHO found the compensatory education recommendation of the parents' proposed independent evaluator "to be totally unreliable and entitled to no weight" (id.).  The IHO opined that the credibility of the parents' witness "was destroyed immediately upon her recanting of the accuracy of her credentials" (id.).  The IHO also noted that the witness' compensatory education recommendation "was based on many factors clearly beyond the scope of the claim asserted in this proceeding" (id.).  As a result, the IHO then determined that "[w]ithout any evidence of loss," he presumed that, "while some deleterious effect might be attributable to [the d]istrict's failure to provide [the s]tudent with his educational program" for a period of 40 days during the 2023-24 school year, such a loss could be adequately addressed by providing the student with "the same amount of [c]ompensatory [e]ducation of which he was deprived" (id.).

As relief, the IHO determined that the student was entitled to the program recommended for the 2023-24 school year for a period of 40 days (IHO Decision at p. 22).  Specifically, the IHO awarded the student 200 hours of placement in a 6:1+3 special class setting, 24 30-minute periods of adapted physical education, 24 30-minute periods of speech-language therapy, 24 30-minute sessions of OT, 9 30-minute sessions of PT, 9 30-minute sessions of music therapy, 40 15-minute sessions of skilled nursing services, and 9 30-minute sessions of psychological counseling services (id. at pp. 22-23).  The IHO ordered that these services be provided by the Wildwood staff as they were familiar with the student and his needs and were "far better equipped and prepared to deliver such services than any other possible providers" (id. at p. 23).  The IHO also dismissed all of the parents' claims related to the 2024-25 school year (id.).

IV. Appeal for State-Level Review

The district appeals and argues that the IHO erred in calculating the total number of hours of compensatory education that the student is owed.  The district contends that the hearing record is devoid of any evidence that the student suffered any adverse effects from the missed days or loss due to the student's non-attendance.  The district asserts that the student made progress in light of his circumstances, even with the missed school days.  The district also argues that the IHO found that the student was not removed from his educational program.  The district asserts that the IHO found that the parents agreed to transport the student to and from Wildwood while the district sought alternate transportation for the student.  The district contends that the IHO's conclusion was contrary to the weight of the evidence, which showed that the student made progress during the 2023-24 school year, and that his needs were not impacted by the period of non-attendance.  The district argues that the IHO ignored evidence of the student's progress and disregarded his own conclusions.  Next, the district alleges that the IHO erred in using a day-for-day calculation to determine the amount of compensatory education owed to the student.  Specifically, the district asserts that the IHO erred in awarding compensatory education that the district has no practical way of providing to the student, as he is attending a full day program in a 6:1+3 special class and the district has no way to offer additional time in this placement.

According to the district, the IHO also erred in awarding 40 15-minute sessions of skilled nursing services, again arguing that the hearing record does not support a finding that the student suffered any adverse effects due to missing services.  Additionally, the district contends that the relief ordered was contrary to the purpose of compensatory education as the student was recommended for skilled nursing services to monitor his general health and development.

The district also asserts that the IHO erred by specifying that Wildwood staff must provide the student with the compensatory education services.  The district argues that the hearing record does not support a finding that only Wildwood staff could provide the student's services and further argues that qualified district staff are capable of providing the student compensatory education services.  Further, the district alleges that the IHO exceeded his authority in ordering Wildwood staff to provide compensatory education, because Wildwood is not a party and the IHO cannot force Wildwood to deliver services.  As relief, the district requests that the IHO's calculation of the number of hours of compensatory education owed to the student be amended, that the IHO's award of 40 15-minute sessions of skilled nursing services be reversed, and that the IHO's determination that the student's compensatory education must be delivered by Wildwood staff be reversed.[10]

In an answer, the parents argue that the IHO properly awarded compensatory education to remedy the district's failure to provide the student a FAPE for a portion of the 2023-24 school year.  The parents acknowledge that the IHO's order directs a private school to deliver the award of compensatory education and argues that the award could be practically implemented at the parents' discretion and that the district is still required to provide "comparable services" consistent with the purpose of the IDEA.  Specifically, the parents request consideration of the variety of ways in which they can utilize the hours of the discrete services to be delivered without restriction to the Wildwood staff or the student's cohort.  The parents also argue that the student is entitled to an award of skilled nursing services and that his health and safety should be monitored during the delivery of compensatory education.  The parents further assert that the IHO correctly ordered Wildwood staff to deliver the student's compensatory education services and that the hearing record supports a finding that Wildwood staff is capable of providing the student with services.

V. Applicable Standards

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

A FAPE is offered to a student when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits (Rowley, 458 U.S. at 206-07; T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d 145, 151, 160 [2d Cir. 2014]; R.E. v. New York City Dep't of Educ., 694 F.3d 167, 189-90 [2d Cir. 2012]; M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 [2d Cir. 2012]; Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 [2d Cir. 2005]).  "'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP'" (Walczak v. Fla. Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998], quoting Rowley, 458 U.S. at 206; see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 [2d Cir. 2009]).  The Supreme Court has indicated that "[t]he IEP must aim to enable the child to make progress.  After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement" (Endrew F. v. Douglas Cty. Sch. Dist. RE-1, 580 U.S. 386, 399 [2017]).  While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (R.E., 694 F.3d at 190-91), the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA (M.H., 685 F.3d at 245; A.C. v. Bd. of Educ. of the Chappaqua Cent. Sch. Dist., 553 F.3d 165, 172 [2d Cir. 2009]; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 [2d Cir. 2003]).  Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies (a) impeded the student's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student, or (c) caused a deprivation of educational benefits (20 U.S.C. § 1415[f][3][E][ii]; 34 CFR 300.513[a][2]; 8 NYCRR 200.5[j][4][ii]; Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 [2007]; R.E., 694 F.3d at 190; M.H., 685 F.3d at 245).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C. § 1415[f][3][E][i]).  A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203).  However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189).  "The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created" (Endrew F., 580 U.S. at 404).  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]).  The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Endrew F., 580 U.S. at 403 [holding that the IDEA "requires an educational program reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances"]; Rowley, 458 U.S. at 192).  The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412[a][5][A]; 34 CFR 300.114[a][2][i], 300.116[a][2]; 8 NYCRR 200.1[cc], 200.6[a][1]; see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 [2d Cir. 2007]; Walczak, 142 F.3d at 132).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320[a][1]; 8 NYCRR 200.4[d][2][i]), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320[a][2][i], [2][i][A]; 8 NYCRR 200.4[d][2][iii]), and provides for the use of appropriate special education services (see 34 CFR 300.320[a][4]; 8 NYCRR 200.4[d][2][v]).[11]

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).

VI. Discussion

While the district asserts in its request for review that the hearing record did not support a finding that the student suffered any adverse effects due to missed services and that the student made progress in light of his circumstances during the 2023-24 school year, the district stopped short of challenging the IHO's determination that the district failed to adequately address the student's behavior during transportation to and from Wildwood or from the IHO's determination that the district failed to provide the student with his recommended program from April 24, 2024 through June 21, 2024.  Further, as described above the district has taken the position that relief ordered by the IHO should be amended and dispensed with in part, rather than eliminated altogether.  In addition, the parents did not cross-appeal from those portions of the IHO's decision which found the IEPs developed during the 2023-24 school year met the student's educational needs and which dismissed their remaining claims for the 2023-24 and 2024-25 school years.  Thus, these IHO findings have 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]).

A. Compensatory Education

During the impartial hearing, the district acknowledged that the student was entitled to make-up services for a period of 42 days beginning on April 22, 2024, and continuing through the end of the 2023-24 school year (Tr. p. 24).[12]  The district calculated that the student should receive two hours per day of tutoring for a total of 84 hours, 13.5 hours of speech-language therapy, 13.5 hours of OT, 4.5 hours of PT, 4.5 hours of music therapy, and 4.5 hours of psychological counseling services (Tr. pp. 24-25).  The district further indicated that it "remain[ed] committed to providing these make-up services and ha[d] already proposed to provide them and w[ould] continue to make them available should the [p]arent[s] agree to receive them" (Tr. p. 25).  In its closing brief, the district reiterated its calculation of missed services from "April 23, 2024" through June 21, 2024, consisting of 84 hours of tutoring, 27 30-minute sessions of speech-language therapy, 27 30-minute sessions of OT, nine 30-minute sessions of PT, nine 30-minute sessions of music therapy, and nine 30-minute sessions of psychological counseling services to be provided by the district (Dist. Post-Hr'g Br. at p. 26).

In his decision, the IHO ordered that the student was entitled to the special education and related services recommended in his 2023-24 IEP from April 24, 2024 through June 21, 2024, a period of 40 days (IHO Decision at p. 20).[13]  The IHO calculated that the student was entitled to five hours per day of placement in a 6:1+3 special class for a total of 200 hours, 24 30-minute periods of adapted physical education, 24 30-minute periods of speech-language therapy, 24 30-minute periods of OT, nine 30-minute periods of PT, nine 30-minute periods of music therapy, 40 15-minute periods of skilled nursing services, and nine 30-minute periods of psychological counseling services (id. at pp. 22-23).  The IHO further ordered that all such compensatory education be provided by staff at Wildwood (id. at p. 23).

As indicated above, the district does not challenge the student's entitlement to compensatory education as relief for the period of time the student did not attend Wildwood during the 2023-24 school year.  The district contends that the IHO erred in calculating the total number of hours the student was owed, specifically asserting that a day-for-day calculation was improper and that the district has no practical way of providing a 6:1+3 special class as compensatory education.  The district further asserts that the IHO erred in awarding skilled nursing services and by ordering Wildwood staff to provide the student's compensatory education services.

The parents request that the IHO's decision be affirmed; however, a the same time the parents seemingly acknowledge a potential impracticality of ordering placement in a 6:1+3 special class at Wildwood as compensatory education and assert that the parents could utilize the award of "hours of the discrete services to be delivered without restriction to the Wildwood [s]taff or the [s]tudent's cohort," and ask the undersigned consider the "variety of ways" in which they can utilize hours (Answer at p. 7).[14]

Thus, the parties' arguments highlight that there is no real dispute that the student should receive some form and amount of compensatory education to address period that he did not attend Wildwood from April 24, 2024 through June 21, 2024.  However, the parties disagree about the provision of skilled nursing services, the precise number of hours to which the student is entitled, as well as precisely how and by whom the services should be delivered.  Further, both parties acknowledge—albeit to varying degrees—the difficulty in practical terms of implementing the IHO's order exactly as written.

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"]).

As indicated above, the parties seemingly agree to the extent that IHO's award of hour-for-hour instruction in a 6:1+3 special class at Wildwood cannot be practically implemented as compensatory education.  I agree because when fashioning relief, IHO did not take into account the intensity of the programming that the student was already receiving, in other words,  that there is no point during the 12-month school year that Wildwood as a practical matter, could create and implement a second "compensatory" 6:1+3 special class for the student and deliver that to the student while also delivering the 12-month 6:1+3 special class that was already called for and being implemented on a going forward basis in accordance with the student's IEP.  The parents appear to be amenable to an award of individualized academic instruction, and request that the IHO's award of 200 hours be provided as a bank of hours to be implemented at their discretion.  The district's offer of 84 hours of individualized academic instruction envisions much more intensive individualized time with a special education teacher that reasonably approximates a 40-day period of group instructional time with a special education teacher that he would have received in the 6:1+3 special class had he attended Wildwood.[15]  Review of the hearing record supports the district's position that 84 hours of individual special education instruction is sufficient to remediate the approximate 40-day period the student was without instruction.[16]

As for the parties' dispute over the need for skilled nursing services as compensatory education, I find that relief is not appropriate in this instance.  The skilled nursing services were intended to support the student's attendance at Wildwood, not achieve a separate educational objective in and of itself.  Review of the 2023-24 IEPs indicated that the purpose of the skilled nursing services for 15 minutes per day was to "monitor the student's general health and development and continue ongoing communication with the parents regarding any medical issues or concerns" (Parent Exs. C at pp. 7-8; D at pp. 7-8).  That service was designed to support real-time monitoring and communication for the student during spring 2024 and attempting to retroactively apply these services would not achieve the intended purpose of the support. In addition, the April 2024 CSE did not recommend continuation of the skilled nursing services for the 12-month 2024-25 school year, which was not challenged by the parents (Dist. Ex. 7 at pp. 12-13).  Awarding compensatory skilled nursing services would be more punitive than remedial and the IDEA calls for equitable relief when a school district has fallen short, not punitive relief. Accordingly, I will reverse the IHO's directive that Wildwood must provide compensatory skilled nursing services in 40 15-minute increments.

Overall, the hearing record demonstrates that the student has continued to be recommended for an intensive program at Wildwood over the four years he has attended the school and experienced a very unfortunate interruption of those services for a specific period during the 2023-24 school year with a seemingly unexplained lapse in communication by all involved.  However, the hearing record reflects that the situation seemed to be rectified by the parties' own efforts and the student has been successfully transported to and from Wildwood by a different provider for the 12-month 2024-25 school year and has attended his recommended 12-month program at Wildwood (Tr. pp. 19-20, 24, 71-72, 74, 78, 83, 189-90, 218, 285), leaving only relief for the 2023-24 school year to be addressed.

Based on the foregoing discussion, I find that the IHO's compensatory education requires modification. To remedy the district's failure to provide the student with his recommended special education program from April 24, 2024 through June 21, 2024, the student is entitled to 84 hours of individual special education instruction, nine hours of adapted physical education, 27 30-minute sessions of speech-language therapy, 27 30-minute sessions of OT, nine 30-minute sessions of PT, nine 30-minute sessions of music therapy, and nine 30-minute sessions of psychological counseling to be provided by the district, unless the parties otherwise agree.[17]

VII. Conclusion

In summary, the IHO erred in awarding the student the entirety of his special education program as compensatory education to remedy the district's failure to provide the student with his recommended programming over a 40-day period.  As relief, the student is entitled to compensatory education to be provided by the district consisting of 84 hours of individual special education instruction, nine hours of adapted physical education, 27 30-minute sessions of speech-language therapy, 27 30-minute sessions of OT, nine 30-minute sessions of PT, nine 30-minute sessions of music therapy, and nine 30-minute sessions of counseling, unless the parties otherwise agree.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the IHO's decision dated January 25, 2025, is modified to reverse those portions which ordered skilled nursing services as compensatory education, and ordered that 200 hours of compensatory education must be provided by Wildwood staff in a 6:1+3 special class; and

IT IS FURTHER ORDERED that the district shall provide the student with 84 hours of individual special education instruction, nine hours of adapted physical education, 27 30-minute sessions of speech-language therapy, 27 30-minute sessions of OT, nine 30-minute sessions of PT, nine 30-minute sessions of music therapy, and nine 30-minute sessions of psychological counseling, unless the parties otherwise agree; and

IT IS FURTHER ORDERED that the compensatory education services (less any compensatory education services already provided by the district) shall be provided over the course of three years or less from the date of this decision and shall expire at that time if not accepted by the parent within that timeframe.