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CASE NUMBER: 516643 - NYC: 176054
FINDINGS OF FACT AND DECISION
Case No: 176054
Student’s Name: [Redacted text]
Date of Birth: [Redacted text]
District: REDACTED
Hearing Requested By: Parents
Record Closed Date: February 1, 2022
Hearing Officer: Diane Cohen, Esq.
On February 17, 2021, I was appointed hearing officer pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §1415(f)(1), in this matter. The matter was remanded to me after a decision of the State Review Officer (the “SRO”), Appeal No. 20-174. A hearing officer had issued a findings of fact and decision, dated October 9, 2020 (IHO Exh. I). The SRO found that the hearing officer had erred in concluding that the district offered a free appropriate public education (a “FAPE”) for the 2017-2018 school year, vacated that finding, and remanded the matter to the hearing officer who had issued the decision. Apparently, that hearing officer was not available, and I was appointed to the case.
We convened for status conferences on February 23, 2021, March 26, 2021, April 16, 2021, May 18, 2021, July 13, 2021, September 21, 2021, November 17, 2021, and December 15, 2021. During that period of time, the Parents were first considering whether to appeal the remand. They later requested delays to see whether they could resolve the matter in the federal court case. The DOE joined the extension requests.
We convened for a pre-hearing conference on December 23, 2021. We scheduled an additional status conference on January 13, 2022.
We convened for a hearing on the merits on January 27, 2022.
The DOE did not present a case. The DOE had no objection to the specific compensatory services requested by the Parents.
The parties requested several extensions of the compliance date. I granted those requests and extended the compliance date to March 8, 2022 for the reasons set forth above, after considering all relevant factors. I set the record closed date as February 1, 2022. My decision is therefore due no more than two weeks later, on February 15, 2022.
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 v. T.A., 557 U.S. 230, 239 (2009); Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 (1982)); Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 69 IDELR 174 (Mar. 22 2017). 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 a child to make progress appropriate in light of the child’s circumstances. Rowley; Endrew F.
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 M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010)).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The DOE did not present a case. I therefore find that the DOE failed to offer a FAPE for the 2017-2018 school year.
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]). Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to such students if there has been a denial of a FAPE (see P. v. Newington Bd. of Educ., 546 F.3d 111, 23 (2d Cir.2008) (stating that "[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and... compensatory education is an available option under the Act to make up for denial of a (FAPE)"); Student X. v. New York City Dep't of Educ., 2008 WL 4890440, at *23(E.D.N.Y. Oct. 30, 2008). I note that an award of compensatory services for the failure to provide FAPE 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 (2nd Cir. 2008).
The Parents request compensatory services consisting of 240 hours of speech-language therapy (“SLT”), 690 hours of 1:1 instruction implemented by a SETSS (special education teacher support services) teacher, 42 hours of occupational therapy (“OT”), 63 hours of physical therapy (“PT”), 50 hours of assistive technology training (“AT”) and 92 hours of parent counseling and training (“PCAT”) (Tr. 705). The DOE did not object to these compensatory services (Tr. 711).
The Parents requested the opportunity to choose a provider at prevailing market rates. They also requested that -- if the Parent is unable to find a provider –and if they were to ask the DOE to identify a provider -- that the DOE would have 30 days to implement the compensatory award. The DOE agreed to those requests (Tr. 727 – 735).
The Parents withdrew without prejudice any requests for translation (Tr. 712) and evaluations (Tr. 724).
ORDER
I THEREFORE ORDER that the DOE shall fund the following compensatory services by providers selected by the Parents, at prevailing market rates, for the failure to offer FAPE for the 2017-2018 school year:
(1) 240 hours of SLT;
(2) 690 hours of 1:1 instruction implemented by a SETSS teacher,
(3) 42 hours of OT;
(4) 63 hours of PT;
(5) 50 hours of AT training; and
(5) 92 hours of PCAT
I FURTHER ORDER that in the event that the Parents request assistance from the DOE in identifying a provider for any of the services set forth above, the DOE shall locate a provider, inform the Parents of the name of the provider, and implement the compensatory service, within 30 days of any such request.
Date: February 2, 2022
DIANE COHEN, ESQ.
Impartial Hearing Officer
NOTICE OF RIGHT TO APPEAL Within 40 days of the date of this decision, the parent and/or the Public-School District has a right to appeal the decision to a State Review Officer (SRO) of the New York State Education Department under section 4404 of the Education Law and the Individuals with Disabilities Education Act. If either party plans to appeal the decision, a notice of intention to seek review shall be personally served upon the opposing party no later than 25 days after the date of the decision sought to be reviewed. An appealing party’s request for review shall be personally served upon the opposing party within 40 days from the date of the decision sought to be reviewed. An appealing party shall file the notice of intention to seek review, notice of request for review, request for review, and proof of service with the Office of State Review of the State Education Department within two days after service of the request for review is complete. The rules of procedure for appeals before an SRO are found in Part 279 of the Regulations of the Commissioner of Education. A copy of the rules in Part 279 and model forms are available at http://www.sro.nysed.gov
DOCUMENTATION
DOE Exhibits
1 – 17 as set forth in the findings of fact and decision, dated 10/9/20.
Parent Exhibits
A-BB, DD-II, MM – UU, as set forth in the findings of fact and decision, dated 10/9/20
VV. Updated Report by [Redacted text], 12/21/21, 7 pages
WW. Statement of [Redacted text], 1/20/22, 5 pages
IHO Exhibits
I. Findings of Fact and Decision, 10/9/20, 20 pages
II. Hearing Request (Case Number 182226), 3/25/19, 5 pages
III. Order on Consolidation – (initially) denied – (Case Numbers 176054 and 182226), 4/4/19, 3 pages
IV. Order on Consolidation and Interim Order IEE – Consolidation Granted – (Case Numbers 176054 and 182226), 5/4/19, 4 pages
V. Email from IHO to parties, setting record closed date, 1/31/22, 1 page
WITNESS TESTIMONY:
DOE WITNESSES:
None
PARENT WITNESSES:
[Redacted text] (By affidavit, Exh. WW, and by Tel. on 1/27/22)