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) to the extent it limited aspects of compensatory education awarded to remedy respondent's (the district's) failure to provide her son with an appropriate educational program or services for the 2021-22, 2022-23, and 2023-24 school years.  The district cross-appeals from the IHO's award of compensatory education.  The appeal must be dismissed.  The cross-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 in this matter has been the subject of prior State-level administrative appeals (see Application of a Student with a Disability, Appeal No. 24-167, and Application of a Student with a Disability, Appeal No. 17-109).  Accordingly, the parties' familiarity with the student's educational history preceding these matters is presumed.

Briefly, the student has diagnoses of autism spectrum disorder, attention deficit hyperactivity disorder (ADHD), intellectual disability, global developmental delay, Tourette's syndrome, and anxiety (Dist. Exs. 1 at pp. 1, 4-5, 9, 12; 8 at p. 2; 15 at p. 1; 17 at p. 1).  He had been placed at Manhattan's Children Center at district expense but came to a point when he could no longer attend that setting due to escalation of his behaviors (Application of a Student with a Disability, Appeal No. 17-109). A plan was developed in 2019 to have the student attend a specialized public school within the district but the student briefly moved to another district within the State before returning to the district in October 2019 (Application of a Student with a Disability, Appeal No. 24-167).

On February 14, 2020, a CSE convened and continued to find the student eligible for special education and related services as a student with autism (see generally Dist. Ex. 2).  The February 2020 CSE recommended that the student attend a 12-month program consisting of a 6:1+2 special class in a State-approved nonpublic residential school, along with two periods per week of adapted physical education, three 40-minute sessions per week of individual occupational therapy (OT), and three 40-minute sessions per week of individual speech-language therapy, and that the parent receive four 60-minute sessions per year of parent counseling and training (id. at pp. 22-23).  The February 2020 CSE also recommended a daily behavior management/support plan and an individual paraprofessional for behavior support (id. at p. 23), The CSE discussed that because of the "escalation of his self-injurious and aggressive behavior as well as an increase in medical needs" the student would benefit from a residential school placement (id. at pp. 3, 5).  According to the IEP, the CSE recommended deferral of the student's placement to the central based support team (CBST) to identify a residential nonpublic school for the student (id. at pp. 5, 22).  In the interim, the CSE recommended that the student attend a 6:1+1 special class in a district specialized school (id. at p. 22).

The February 2020 IEP and the district's failure to arrange for the student to receive the program recommended in the IEP for the 2019-20 and 2020-21 school year, among other things, were the subject Application of a Student with a Disability, Appeal No. 24-167.  According to the district's events log for the student, no CSE meeting convened after the February 2020 CSE, and the district did not provide any educational programming to the student during the school years at issue in this matter (see Dist. Exs. 13 at pp. 1-3; 16 at pp. 1-4).  According to the parent the student was hospitalized "numerous times during 2020 through 2024, the years which the [district] failed to provide services"(Dist. Ex. 17 at p. 1; see Parent Exs. D at pp. 2, 5; E at p. 1; Dist. Ex. 16 at p. 4).[1]

The student's primary care physician stated that the student was hospitalized in August 2024 due to self-injurious behavior (head-banging) and that in September 2024 the hospital staff attempted to locate a group home for the student but that "no group home ha[d] accepted [the student] as they fe[lt] they c[ould ]not be supportive enough" (Parent Ex. J).

A. Due Process Complaint Notice

In an amended due process complaint notice, dated August 30, 2024, the parent alleged that the district denied the student a free appropriate public education (FAPE) for the 2021-22, 2022-23, and 2023-24 school years (see IHO Exs. IV).[2]  Specifically, the parent alleged that the district failed to offer services or a school placement for the three years at issue (id. at p. 1).  The parent alleged that the student lost skills and failed to make progress needed to transition to adult services (id.).  As relief, the parent requested evaluations of the student and compensatory education (id. at pp. 1-2).

B. Impartial Hearing, Interim Decisions, and March 2025 Due Process Complaint Notice

After prehearing conferences on July 29, 2024 and August 20, 2024, an impartial hearing convened before an IHO with the Office of Administrative Trials and Hearings (OATH) on October 1, 2024 and concluded on February 13, 2025 after six days of proceedings (Tr. pp. 1-357).[3]  In interim decisions dated August 26, 2024, September 19, 2024, and November 4, 2024, the IHO directed the district to conduct and/or fund a "comprehensive evaluation" of the student to include an autism skills assessment or applied behavior analysis (ABA) skills assessment; social history; psychoeducational evaluation; speech-language evaluation; assistive technology evaluation; OT evaluation; physical therapy (PT) evaluation; and transition/post-secondary readiness evaluation (see IHO Exs. V; VI; VII).[4]  In an October 10, 2024 stipulation, the district conceded that it committed a gross violation of its obligation to provide the student a FAPE with respect to the 2021-22, 2022-23, 2023-24 school years in failing to secure a residential nonpublic school for the student and failing to hold a transition meeting with the student (see Tr. pp. 102-03, 105, 268; IHO Ex. II).

On March 5, 2025, after the final hearing date in this matter, the parent filed another due process complaint notice alleging that the district failed to provide the student with services "the last 3 years" and failed to develop an exit plan or a transition plan (IHO Ex. III at pp. 2-3).  The parent sought an IEP for the student with a school recommendation, services, and an exit plan to transition the student to adult services (id. at p. 2).  The IHO issued an interim decision consolidating the March 2025 due process complaint notice with the pending matter, noting that the parent's request for an IEP for the 2024-25 school year "ha[d] already been addressed on the merits" in the pending matter (see IHO Ex. XIV).

C. Impartial Hearing Officer Decision

In a decision dated March 26, 2025, the IHO acknowledged the district's stipulation that it denied the student a FAPE for the 2021-22, 2022-23, and 2023-24 school years and, by this stipulation of facts, the IHO found that the district "conceded that [the] [s]tudent remained eligible through June 2024, the end of the school year in which [the] [s]tudent turned 22" (IHO Decision at p. 10).

In connection with the parent's request for special education for the 2024-25 school year, the IHO held that, at the beginning of the 12-month 2024-25 school year, the student was past his 22nd birthday and, therefore, was not eligible for special education under the IDEA for the 2024-25 school year (IHO Decision at p. 10).  With respect to transition planning, the IHO found that the parent was able to obtain a transition evaluation, did obtain the ABA report which incorporated a transition plan, and, during the impartial hearing, had the opportunity to ask questions of the school psychologist regarding transition planning (id. at p. 11).  Therefore, the IHO found that the district was not required to hold any further CSE meetings or develop an "exit plan" for the student (id. at p. 11).

As relief, the IHO found that the student was entitled to compensatory education for the gross violations committed by the district (IHO Decision at pp. 11-12).  The IHO ordered the district to fund "up to three 12-month years of tuition at an accredited residential non-public school" whether approved or not approved by the New York State Education Department and fund transportation of the student to and from the school and transportation of the parent to visit the student at school for up to four round trips per year (id. at pp. 13-14, 16).  In addition, the IHO ordered the district to fund the following compensatory education services by qualified providers of the parent's choice at enhanced contract rates: 52,560 hours of direct 1:1 hours of ABA services; 312 hours of parent counseling and training in ABA; 3,744 hours of board certified behavior analyst (BCBA) supervision; 780 hours of OT; 624 hours of speech-language therapy; 468 hours of assistive technology training by a competent provider; and 312 hours of counseling (id. at p. 16).  Next, the IHO directed the district to provide assistive technology for the student's use, including a standard-sized iPad; TouchChat® HD-AAC with WordPower™ 60 Basic; SnapType Pro 2; Voice Dream Reader with a Bookshare account; Phonics Genius; and Google Suite (id. at pp. 16-17).  Further, the IHO held that the ordered banks of compensatory services would not expire "except that the total number of hours of each service [would] be reduced by 1/6 . . . for every 12-month year (or pro rata) that [the] [s]tudent [wa]s enrolled and attending a residential non-public school" (id. at pp. 13, 17).

IV. Appeal for State-Level Review

The parent appeals seeking to modify specific items set forth in the IHO's awarded relief.  Specifically, with respect to the award of compensatory education vis-à-vis the student's attendance at a residential school, the parent takes issue with language in the body of the IHO's decision, which stated that "even if Parent immediately secure[d] a residential placement and Student transition[ed] to another adult placement under the auspices of [the Office for People with Developmental Disabilities (OPWDD)], no less than three years' worth of non-expiring compensatory service hours w[ould] remain available to Student" (IHO Decision at p. 13).  The parent requests clarification that the student is entitled to six years of compensatory services regardless of where the student resides and that the award could not be reduced by the student's residence in a noneducational setting, such as an OPWDD group home.

In addition, the parent requests that the district be directed to convene a CSE meeting and develop an IEP that includes an exit summary for the student's transition to adult services.  The parent asserts that the testimony of the school psychologist was insufficient to provide the necessary information to assist the student in transitioning to adult services.

Next, the parent requests that the district be required to authorize providers selected by the parent to deliver compensatory education within 14 calendar days and then pay the providers within 30 days of receipt of invoices.  The parent asserts that the time constraints are warranted to ensure that the student's compensatory services are not "further stalled or delayed."  Finally, the parent also requests that the district "do everything necessary" to locate and place the student in a residential school.  In particular, the parent requests that packets sent to residential schools include a letter explaining the award and its availability to the student beyond the age of 22.

In an answer and cross-appeal, the district denies the material allegations contained in the request for review and argues that the IHO's award of compensatory education should be modified.  In response to the parent's appeal, the district asserts that the parent's concern about the student's residence and his receipt of the compensatory education is based on a misreading of the IHO's award, which did not contain a reduction of compensatory education based on the student's residence.  In connection with the parent's request for an exit summary, the district argues that, since the parent does not appeal the IHO's dismissal of the claims pertaining to the 2024-25 school year, the requested relief is "outside the scope" of her claims and, moreover, the student is no longer entitled to an IEP or special education programming, including transition planning, given the student's age.  As to the parent's request that the district be required to authorize providers and pay invoices within a specified number of days and facilitate the student's placement in a residential school, the district argues that the parent is not aggrieved by the IHO's orders and, moreover, that the district, citing case law, should be afforded "some bureaucratic latitude" with how it complies with the orders.

As for its cross-appeal, the district argues that, despite its concessions at the impartial hearing, the compensatory education award is excessive and punitive and beyond that which is necessary to compensate the student for the district's denial of a FAPE.  In particular, the district notes that the compensatory ABA services were calculated based on 24 hours a day, seven days a week, for three years.  The district argues that the compensatory education award improperly constitutes maximization of services to the student.  The district requests that the award for ABA services and related services be reduced or for a remand to determine the appropriate compensatory award.  The district further argues that the compensatory education award should include "reasonable expiration dates" and that the service providers should not be permitted to simultaneously provide the student services as it constitutes "double-billing."  Next, the district seeks to vacate the assistive technology award as the parent did not request assistive technology services or devices in her due process complaint notices.

In a reply and answer to the district's answer with cross-appeal, the parent reiterates the bases for her requests for modifications to the IHO's awards, asserts that the IHO's award of compensatory education was not excessive, and argues that the district should be held to terms that it agreed to during the impartial hearing.  In a reply to the parent's answer to the cross-appeal, the district argues, among other things, that new issues raised by the parent that were not included in the request for review should not be considered.

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]).  Compensatory education may be awarded to a student with a disability who no longer meets the eligibility criteria for receiving instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]).  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]), or reaches the maximum age of eligibility (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; Katonah-Lewisboro Union Free Sch. Dist. v. New York State Educ. Dep't, 2025 WL 1954074 [3d Dep't July 17, 2025]; see 34 CFR 300.102[a][1], [a][3][ii]).[5]  The Second Circuit has held that compensatory education may be awarded to students who are ineligible for services under the IDEA by reason of age or graduation only if the district committed a gross violation of the IDEA which resulted in the denial of, or exclusion from, educational services for a substantial period of time (see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 n.15 [2d Cir. 2015]; French v. New York State Dep't of Educ., 476 Fed. App'x 468, 471 [2d Cir. 2011]; Somoza v. New York City Dep't of Educ., 538 F.3d 106, 109 n.2, 113 n.6 [2d Cir. 2008]; Mrs. C. v. Wheaton, 916 F.2d 69, 75-76 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071, 1078-79 [2d Cir. 1988], aff'd on reconsideration sub nom., Burr v. Sobol, 888 F.2d 258 [2d Cir. 1989]; Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]).

The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 [2d Cir. 2014] [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; 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 E. Lyme, 790 F.3d at 456; Reid v. Dist. of Columbia, 401 F.3d 516, 524 [D.C. Cir. 2005] [holding that, in fashioning an appropriate compensatory education remedy, "the inquiry must be fact-specific, and to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place"]; Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 [9th Cir. 1994]).  Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the district complied with its obligations under the IDEA (see Newington, 546 F.3d at 123 [holding that compensatory education awards should be designed so as to "appropriately address[] the problems with the IEP"]; see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 [11th Cir. 2008] [holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"]; Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 [6th Cir. 2007] [holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"]; Reid, 401 F.3d at 518 [holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA"]).

VI. Discussion

A. Scope of Review

Initially, the district has not appealed the IHO's determination that it committed a gross violation of its obligation to ensure the provision of a FAPE to the student for the 2021-22, 2022-23, and 2023-24 school years, and the parent has not appealed the IHO's finding that the student was not eligible for special education under the IDEA for the 2024-25 school year.  In addition, neither party appeals the IHO's awards requiring the district to fund a residential nonpublic school for the student for up to three school years and fund up to the equivalent of six years of compensatory education services in addition thereto, with pro rata reductions for periods of time that the student attends a residential school, with the caveat that the district disputes the size of the compensatory education award.  As to those determinations which are not appealed, they 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]).

With respect to the parent's appeal, I find that she is not aggrieved from aspects of the IHO's decision from which she appeals.  Although certain language in the IHO's decision references the possibility that the student would attend an adult placement, it appears that the IHO meant to clarify that such a residence would not serve to reduce the student's compensatory award (see IHO Decision at p. 13).  However, even if the IHO's discussion in this regard in the body of the decision caused ambiguity, the IHO's ordering clause is clear in its award of three years of tuition at a residential nonpublic school and six years of compensatory education with pro rata reductions for time during which the student attends a residential nonpublic school (id. at p. 16-17).  The IHO's order makes no reference to a reduction in the compensatory education award based on the student's residence in anything other than a nonpublic school funded by the district.

The parent also expresses concern in her appeal that any provider she selects to deliver the compensatory education services should be approved by the district within 14 calendar days.  However, the IHO's order stated that the parent could choose the providers and there was no requirement in the IHO's order for approval of the selected provider by the district (IHO Decision at p. 16).  Additionally, the IHO already ordered the district to pay the providers of the compensatory services within 30 days of submission of invoices (id. at p. 17).  Accordingly, it is unnecessary to modify the IHO's awards in this regard.

B. IEP, Exit Summary, and Identification of a Residential Nonpublic School

The parent's request for an IEP with an exit summary, appears related both to her desire for assistance in transitioning the student to adult services and to her concern that it will be difficult to identify a residential nonpublic school for the student without an IEP in place.

With respect to the former concern, generally, a district must provide a student with a disability whose eligibility for special education services is ending with a summary of the student's academic achievement and functional performance, including recommendations on how to assist the student in meeting his or her postsecondary goals (20 U.S.C. § 1414[c][5][B][ii]; 34 CFR 300.305[e][3]; 8 NYCRR 200.4[c][4]).  However, as noted, there is no dispute that the district grossly violated its obligations to the student, including its obligation to develop an IEP for the student with an exit summary, which is the basis for the expansive compensatory education awarded by the IHO and herein for the student who has aged out of eligibility for special education under the IDEA.  Further, I agree with the IHO that no further exit summary in this regard is needed given the inclusion in the private ABA report of a transition plan for the student, which specifically makes recommendations for assisting the student in transitioning to adult services (Parent Ex. E at pp. 5-6).  Moreover, as discussed below, the compensatory parent counseling and training awarded in this matter should focus on assisting the parent to understand the adult services available to the student.

The parent's concern about identifying a residential nonpublic school for the student without an IEP is further described in her request that the district be required to "do everything necessary" to locate a residential school for the student.  The parent's concern in this regard is valid insofar as both the parent and the district school psychologist testified that many residential schools will not accept students over the age of 22 (Tr. pp. 286-88, 318-21).  I share that concern that many if not all schools that design residential programing for school-age individuals may be unwilling or entirely prohibited from admitting adults depending on the type of facility or placement and often strict oversight of such matters by other State agencies.  Moreover, despite the parent sharing that one school informed her that it would only consider the student if the district's CBST initiated the request, the district school psychologist could not say that the CBST would assist in that regard given the student's age (Tr. pp. 326-28; see Tr. pp. 38-39).  On the other hand, the parent shared that some school or schools had informed her that, if it was in an order that the student's tuition would be funded, the student could be "considered" (Tr. p. 326).  Ultimately there is no indication in the hearing record that having an IEP in place, a document that is designed for school-aged individuals, would further assist the parent in her plight.  Further, without a particular residential school identified under these specific circumstances, there is little that can be crafted in the abstract to assist either party in identifying a viable option for the student.  This is evident in the parent's request that the district be ordered to "do everything necessary," which is far too broad to have any enforcement effect.  With that said, if either party is aware of an appropriate residential school option available for the student, the district should cooperate with the parent to secure the student's enrollment.  If the district fails to do so, the parents may pursue enforcement of the IHO's order for district funding of a residential nonpublic school through the State complaint process or the judicial system (see 34 CFR 300.152[c][3]; SJB v. New York City Dep't of Educ., 2004 WL 1586500, at *4-*5 [S.D.N.Y. July 14, 2004] [finding that parties need not initiate additional administrative proceedings to enforce prior administrative orders]; see also A.R. v. New York City Dep't of Educ., 407 F.3d 65, 76, 78 n.13 [2d Cir. 2005]).  As noted above, the directive to fund a residential "school," although unappealed, began immediately with potentially impassible hurdles, not the least of which is that the functions of placing an adult in a residential setting is an area where school officials begin to lose their institutional competence. That is why there are other State agencies that specialize in the programming and placement of adult populations with severe disabilities and mental health concerns.     Thus, absent a more defined goal, I do not believe that any further language in the order telling the district to exert greater efforts will assist the parent at this juncture.  My suggestion to reach an outcome that would stabilize the situation would be that the parent should focus her energies on locating an adult residential situation for the student, so that the student can receive the greatest benefit from the  compensatory education services awarded in this matter, as modified below, to remediate the student's unmet educational needs.

C. Compensatory Education Services

Turning to the district's cross-appeal, the scope of my review is also limited in this matter by the fact that, during the impartial hearing the district's representative agreed to and did not contest any of the parent's requested relief (Tr. pp. 267-69, 286).  Specifically, during the impartial hearing the district agreed to the parent's requested relief as follows:

1.         that the district would fund compensatory education for ABA, speech-language therapy, and OT in accordance with the evaluations contained in the hearing record (Tr. pp. 269-70);

2.         that the parent's implementation of the compensatory services on a 24-hour per day / seven day per week basis was not an issue (Tr. p. 283);

3.         that the district would fund three 12-month school years of tuition at a residential nonpublic school (Tr. p. 338);

4.         that the district would fund "up to six years of compensatory a la carte services to be reduced by up to three years of residential placement" at a State-approved or non-approved school or at a school outside of the State (Tr. pp. 345, 347, 351);

5.         that the related services could be used simultaneously for the providers to work together with the student (Tr. p. 347); and

6.         that the compensatory hours would not expire (Tr. p. 347).

Thus, the district failed to dispute the parent's requested relief during the impartial hearing and only now belatedly raises concerns about the excessiveness of the IHO's award.  Nor, for that matter, did the district propose an alternative compensatory remedy.  Given the district's concessions during the impartial hearing, I find no basis to disturb the IHO's findings that the compensatory hours and equipment could be used "simultaneously" for "collaboration and effective delivery of services" or that the ordered banks of compensatory services would not expire (IHO Decision at pp. 13, 17).

Notwithstanding the district's failure to meaningfully present its position during the impartial hearing, an outright default judgment awarding compensatory education—or as in this case, any and all of the relief requested without question—is a disfavored outcome even where the district's conduct in denying the student a FAPE and in failing to actively participate in the impartial hearing process is egregious (see Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 [D.C. Cir. 2005] [rejecting "lump sum" grant of tutoring as a compensatory remedy for a multi-year denial of FAPE]).  Indeed, an award ordered so blindly could ultimately do more harm than good for a student (see M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *8 [S.D.N.Y. Mar. 30, 2017]).  Moreover, if the sum and total of the compensatory education relief requested by the parent was ordered, including the monetization thereof, it could begin to resemble a punitive award (see C.W. v Rose Tree Media Sch. Dist., 395 Fed. App'x 824, 828 [3d Cir. Sept. 27, 2010] [noting that "[t]he purpose of compensatory education is not to punish school districts for failing to follow the established procedures for providing a [FAPE], but to compensate students with disabilities who have not received an appropriate education."]; D.C.G. v. New York City Dep't of Educ., 2024 WL 1435395, at *8 [S.D.N.Y. Feb. 15, 2024] [noting that "the IDEA is not designed to provide a damages remedy, but rather" an award should be designed "to 'make up' for gaps in the student's education"], adopted at, 2024 WL 1343598 [S.D.N.Y. Mar. 30, 2024]).

Further, although the district made numerous concessions at the impartial hearing, the sum and total of the compensatory hours was not outlined as, instead, the evaluations and the parent's requests were phrased in terms of the number of services recommended per day or per week (see Parent Exs. D; E; F).[6]  Moreover, as a general matter, an adjudicator need not "accept such a concession when the law and record do not justify it" (D.S. v. Trumbull Bd. of Educ., 975 F.3d 152, 162 [2d Cir. 2020]; R. F. v. New York City Dep't of Educ., 2025 WL 2695690, at *6 n.12 [S.D.N.Y. Sept. 22, 2025] [declining to accept the school district's concession at the impartial hearing that there were not equitable considerations that weighed against the parents requested relief]).

In particular, despite the district's gross violation of a FAPE and the district's expansive concessions made on the record during the impartial hearing, the evidence in the hearing record does not support an award of compensatory education calculated based upon the delivery of ABA services for 24 hours per day, seven days per week, and 365 days per year.  The parent's request for compensatory education was based on the recommendations of the BCBA who had begun working with the student in July 2024 and authored the December 2024 ABA report (Parent Ex. E).  According to the BCBA, the student had regressed without a school placement "to the point that [he] remain[ed] in the Hospital as he need[ed] 24/7 support with skilled providers" (id. at p. 4).  Further, the BCBA indicated that the student's educational and behavioral needs were not being met in the hospital, noting that the student's schedule was "unpredictable," he was at times "up throughout the night," and "[h]ospital staff [we]re not trained in behavior modification and they inadvertently reinforce[d] maladaptive behaviors" (id.).  On this ground, the BCBA recommended "skilled trained providers 24/7" (id.).

During the impartial hearing, the parent testified that, at that time, the student was receiving ABA services from a bank of compensatory education (Tr. pp. 270, 272-73).  She indicated that the student was receiving a "minimum of 10" hours per day of ABA, and generally between "12 to 16 hours" daily, including the weekends, at the hospital (Tr. pp. 270-71).  She further described that, due to the student's "erratic" schedule, he was "sometimes . . . up through the night" at which time, the staff at the hospital were "not trained in . . . behavior modification" (Tr. p. 270).  According to the parent, the ABA providers worked to replace the student's problem behaviors with communication (Tr. p. 277).

Despite the concerns about the student waking up in the night, had the student attended a residential nonpublic school, that would not equate to the delivery of services to the student 24 hours per day, i.e., even when the student slept.  While there is very little, if any, legal authority directly on the question of a district's obligation to a student while the student sleeps, the District Court's decision in Wenger v. Canastota Central School District, 979 F. Supp. 147 (N.D.N.Y. 1997), as well as the administrative proceedings leading up to the decision, are instructive (see Application of a Child with a Disability, Appeal No. 95-010).  In Wenger, the student was hospitalized in a coma and one issue in the matter was the district's obligation to provide compensatory education to make up for services not delivered (see id.).  The district was ultimately required to provided compensatory education for services that had a particular rationale (i.e., OT for sensory stimulation and maintenance of a functional range of motion) (id.).  More recently, another district court has explained that services requiring the student's attentiveness were not required at times that a student was likely to be asleep (Mason v. Carranza, 2023 WL 6201407, at *12 [E.D.N.Y. Sept. 22, 2023] [declining to hold that a student required longer sessions when the student showed minimal and limited responses, slept frequently, was lethargic and medically fragile]).  Here, while the BCBA indicated that the student needed a trained individual accessible in the event the student woke up in the night (Parent Ex. E at p. 4), there are alternatives to requiring the district to fund an ABA provider to sit at all times by the student's bedside overnight in case the student awakes.  To that end, although I am reducing the IHO's award of ABA, I will direct the district to fund up to six hours of training in behavior modification to be made available to hospital staff if it is determined that the student will continue to be hospitalized for the near future, or to the staff any residential setting to which the student may be discharged, if applicable to assist with deescalating the student in the later evening or overnight.

In connection with the ABA compensatory services, although the district did not propose an alternative amount of compensatory education, on appeal it refers to Application of a Student with a Disability, Appeal No. 24-167 where the district was found to also have committed a gross violation of the IDEA for the 2019-20 and 2020-21 school years, and I upheld that IHO's use of 60 hours per week of ABA services which approximated 12 hours of services per day that would cover the majority of the student's wakeful hours in a day.  In line with this reasoning, the district argues that, if approximately 5,000 hours of compensatory education services for a two year violation was appropriate, it does not follow that a three year gross violation would result in 52,560 hours of ABA services.  The district's point is well taken.

Accordingly, and in keeping with my previous decision with respect to this student, I will base my calculation for ABA services on 60 hours per week (approximately 12 hours of services per day) (see Application of a Student with a Disability, Appeal No. 24-167).[7]   As noted above, the district does not challenge the IHO's use of a six years in the calculation of the compensatory education award.  Accordingly, for each of the six years, the student shall be entitled to 3,120 hours (60 hours per week) of compensatory ABA services.  If the student does not attend a residential nonpublic school, the student will be entitled to a total of 18,720 hours of compensatory ABA services.

Next, the ABA report indicated that a BCBA should provide 10-12 hours of supervision and training but provided no rationale for such recommendation (Parent Ex. E at p. 7).  The parent requested 15 hours per week of BCBA supervision, asserting that "[h]aving providers for 24-7 requires much oversight and treatment planning (IHO Ex. XVI at p. 1).  The parent's request for 15 hours of supervision to complement 168 hours (i.e., 24/7) of ABA amounts to a ratio of approximately one hour of supervision for every 11 hours of ABA services.  I will adopt that ratio to craft an award taking into account the reduced amount of ABA awarded, as described above.  Thus, for each of the six years, the student is entitled to 283 hours (3120 hours of ABA services divided by 11) of BCBA supervision.  If the student does not attend a residential nonpublic school, the student will be entitled to a total of 1,698 hours of BCBA supervision for the six years.

With respect to parent counseling and training, State regulation defines the service as "assisting parents in understanding the special needs of their child; providing parents with information about child development; and helping parents to acquire the necessary skills that will allow them to support the implementation of their child's [IEP]" (8 NYCRR 200.1[kk]; see 34 CFR 300.34[c][8]).  Here, since the student is now an adult and may be eligible to attend an adult residential setting in the future, it is unknown how much of a role the parent will play in his education going forward.  Although the ABA report recommended one hour per week of parent counseling and training, I will award one hour per month of parent counseling and training for a total of 12 hours per year or a total of 72 hours for six years if the student does not attend a residential nonpublic school.[8]

I find no reason to modify the IHO's award for OT or speech-language therapy.  For OT services, the OT evaluation dated October 30, 2024 recommended five 30-minute sessions per week or 2.5 hours a week (see Parent Ex. F).  Therefore, The IHO's award for 2.5 hours per week of OT services will not be disturbed.  As the IHO indicated, if the student does not attend a residential nonpublic school, the student is entitled to a total amount of 780 hours of compensatory OT services.  For speech-language therapy, the speech-language evaluation conducted on October 31, 2024 did not contain any recommendations for services (Parent Ex. M), but the parent sought two hours per week of speech-language therapy (IHO Ex. XVI at p. 1), which was also the same frequency upon which an award of compensatory education was calculated in the prior matter involving the student (see Application of a Student with a Disability, Appeal No. 24-167).  Therefore, two hours per week amounts to 105 hours per year.  If the student does not attend a residential nonpublic school, the student would be entitled to a total of 624 hours of speech-language therapy.

I find a lack of evidence in the hearing record to support the IHO's award of counseling services to the student (see IHO Decision at p. 16).  In this matter, there was no recommendation for the student to receive counseling services in the June 2019 or February 2020 IEPs or in any of the evaluations conducted during the impartial hearing (see Parent Exs. E-F; M; Dist. Exs. 1-2; 15; 17).  Based upon prior decisions, it appears that the student was last recommended for counseling in an October 2016 IEP (see Application of a Student with a Disability, Appeal No. 17-109).  Also, the parent did not specifically mention counseling in her due process complaint notices and did not discuss it as an additional service sought during the impartial hearing (Tr. pp. 1-357; Parent Ex. D; IHO Exs. III-IV, XIII).  The first time counseling for the student was raised by the parent was in her closing brief thereby not providing the district any notice of this request (see IHO Ex. XVI).  For these reasons, I will reverse the IHO's award of counseling services.

Next, the district argues that the IHO erred in awarding assistive technology services and equipment as the parent did not seek such relief in the due process complaint notice.  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]).  Here, the parent requested evaluations and compensatory education (IHO Ex. IV at pp. 1-2), and the district agreed to "an elaborate or expansive evaluation" of the student, and, as one aspect thereof, conducted an assistive technology evaluation, which was made a part of the hearing record (see Tr. pp. 39-40, 45; Dist. Ex. 15; IHO Exs. V; VI; VII).  At the request of the parent, the IHO agreed to consider the recommendations contained the assistive technology evaluation, and the district did not object (Tr. p. 353).  The IHO ordered the district to procure or fund assistive technology consistent with the device and programs recommended by the district's assistive technology evaluation of the student, to wit an iPad® with TouchChat® HD - AAC with WordPower™ together with several software programs for reading and writing to include SnapType Pro 2, Phonics Genius, Voice Dream Reader with Bookshare Account, and Google Suite (compare IHO Decision at pp. 16-17, with Dist. Ex. 15 at pp. 16-17).  The district argues that it should not be required to procure the device since the student is no longer attending district public schools and is no longer eligible for special education under the IDEA.  However, assistive technology is an appropriate component of a compensatory education award "when necessary to implement the awarded compensatory education" (M.M. v. New York City Dep't of Educ., 2017 WL 1194685, at *9 [S.D.N.Y. Mar. 30, 2017]).  Based on the foregoing, I find no basis to modify the IHO's award of assistive technology.

With respect to the assistive technology services, State guidance describes that "[s]uch services may include teaching the student to use his/her assistive technology device, customizing the device, if appropriate, and/or maintaining and repairing the device" as well as "monitoring student progress with the assistive technology device and, if applicable, providing for the transport of a device between home and school" ("Assistive Technology for Students with Disabilities," at p. 4, Office of Special Educ. [April 2017], available at https://www.nysed.gov/sites/default/files/ programs/special-education/assistive-technology-for-students-with-disabilities-policy-brief.pdf).  The assistive technology evaluation did not contain a recommendation for services (see Dist. Ex. 15).  Further, the parent did not include assistive technology services in her request for compensatory education (IHO Ex. XVI at p. 1).  Rather, the parent sought, as part of "a new IEP," "an additional 1.5 hours" per week of speech-language therapy "to teach [the student] to use [a]ssistive [t]echnology" services (see IHO Ex. XVI at p. 3).[9]  Given the request and the nature of the service, which will require a diminishing amount of support the longer the student uses the device, I will order the equivalent of 1.5 hours per week of assistive technology services for one year (63 hours) and one 30-minute session of the service for each year after during which the student is entitled to compensatory education (21 hours per year), provided that any pro rata reductions made to the award in the event the student is enrolled in a residential nonpublic school should not apply to the first year of assistive technology services with the larger frequency and duration.[10]  If the student does not attend a residential nonpublic school, the student would be entitled to a total of 168 hours of assistive technology services.

In summary, my findings in this case are largely based on the fact that the district specifically agreed on the record to much of the relief ordered by the IHO.  I have increased confidence that the award, as modified, strikes the proper balance remediate the district's three-year gross denial of a FAPE in this case rather than the portions of the award that were designed to educate the student for 24 hours per day, seven days per week, which would neither be physically possible for the student nor educationally sound.  Moreover, I encourage the parent to engage in the process of arranging publicly supported adult services to which he is now likely entitled, which he may receive contemporaneously with the compensatory education services funded by the district that are awarded herein (see Tr. pp. 308-09).  In my view, such efforts would more likely lead to improved outcomes for the student than continuing the efforts of trying to fit him into programs for younger individuals that the witnesses have predicted would be unwilling or unable to accept him.

For the reasons set forth herein, the compensatory education awards shall be modified in accordance with my decision above.

VII. Conclusion

It is undisputed that the district committed a gross violation of the IDEA and denied the student a FAPE for the 2021-22, 2022-23, and 2023-24 school years.  I do not find a basis to modify the IHO's award for the reasons set forth in the parent's appeal; however, the IHO's compensatory education award was excessive and crossed heavily into the realm of maximization.  Therefore, the compensatory education awards must be reduced as described herein.

THE APPEAL IS DISMISSED.

THE CROSS-APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the IHO's decision, dated March 26, 2025, is modified by reducing the award of 52,560 hours of compensatory ABA services to an award of 3,120 hours per year of compensatory ABA services or a total of 18,720 hours of compensatory ABA services which total award of compensatory ABA services is to be reduced by 1/6 for every 12-month year (or pro rata) that the student is enrolled and attending a residential nonpublic school; and

IT IS FURTHER ORDERED that the IHO's decision, dated March 26, 2025, is modified by reducing the award of 3,744 hours of BCBA supervision to an award of 283 hours per year of BCBA supervision or a total of 1,698 hours of compensatory BCBA supervision which total award of compensatory BCBA supervision is to be reduced by 1/6 for every 12-month year (or pro rata) that the student is enrolled and attending a residential nonpublic school; and

IT IS FURTHER ORDERED that the IHO's decision, dated March 26, 2025, is modified by reducing the award of 312 hours of parent counseling and training to an award of 12 hours per year of compensatory parent counseling and training or a total of 72 hours of compensatory parent counseling and training which total award of parent counseling and training is to be reduced by 1/6 for every 12-month year (or pro rata) that the student is enrolled and attending a residential nonpublic school; and

IT IS FURTHER ORDERED that the IHO's decision, dated March 26, 2025, is modified by reducing the award of 468 hours of assistive technology training to an award of 63 for one year and 21 hours per year thereafter of compensatory assistive technology training or a total of 168 hours of compensatory assistive technology training which total award of assistive technology training is to be reduced by 21 hours for every 12-month year (or pro rata) that the student is enrolled and attending a residential nonpublic school; and

IT IS FURTHER ORDERED that the IHO's decision, dated March 26, 2025, is modified by reversing that portion which awarded of 312 hours of counseling services; and

IT IS FURTHER ORDERED that unless the parties shall otherwise agree the district shall within 60 days arrange for up to six hours of training in behavior modification for either the staff at the hospital if it is determined that the student will continue to be hospitalized or for the staff any residential setting that the student may be discharged to, if applicable.