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FINDINGS OF FACT AND DECISION
Case Number: 182415
Student’s Name:
Date of Birth:
District:
Hearing Requested By: Parent
Dates of Hearing: November 18, 2020
Actual Record Closed Date: February 7, 2020
Hearing Officer: Judith Schneider, Esq.
APPEARANCES
November 18, 2019
For Parent:
Advocate
For the District:
District Representative
January 8, 2020
For Parent:
Advocate
For the District:
District Representative
January 27, 2020
For Parent:
Advocate
For the District:
District Representative
On November 8, 2019, January 8, 2020 and January 27, 2020 conducted an Impartial Hearing at the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of (“the student”).
Procedural History
The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence dated April 8, 2019. (Ex. D) I was appointed Impartial Hearing Officer on September 5, 2019 after prior recusal/s. A prehearing conference initially scheduled for September 28, 2019 and thereafter rescheduled was held on October 2, 2019. (Ex. I) A hearing was scheduled for November 8, 2019. At the November 8 hearing the parent stated that an amended hearing request would be filed.
An amended hearing request dated December 15, 2019 was entered into Impartial Hearing Office records on January 8, 2020. Amendment was granted by the district which thereafter waived resolution. A hearing with regard to the amended complaint was held on January 27, 2020.
The parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses, the filing of an amended complaint, submission of evidence, receipt of the transcript and issuance of the decision within the permitted time period. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the joint requests for extensions of the compliance dates were granted. (T. 14, 19, Ex. I)
The current compliance date is February 13, 2020. The record closed on February 7, 2020, upon my receipt of the final transcript.
Positions of the Parties and Background
The parent asserted that although the student was mandated to received 7 sessions weekly of SETSS during the 2018-2019 school year, only 69 hours was provided because, among other things, the parent was unable to locate a provider. The parent located a provider who provided 46 SETSS sessions during the summer at the rate of $100 per hour and seeks DOE funding for those services as compensatory services. (T20-21, Exs. A, B)
The DOE did not present any evidence in this matter. It is not disputing that the student missed at least 46 sessions, did not contest the parent’s claims that provider was not identified by the DOE and stated that it was not offering evidence to dispute the parent’s claim that $100 per hour for the compensatory service is a reasonable market rate. (T22-23)
Both parties requested that a Findings of Fact and Decision be ordered. (T23)
Findings of Fact and Conclusions
In New York State the DOE bears the burden of proof with regard to whether a FAPE was provided. Educ. Law 4404[1][c] In this matter the DOE has not disputed the parent’s claim that a FAPE was not provided and I find that claim credible.
It is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) “…[C]ompensatory 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]).” Appeal No. 11-027. The district has not disputed the relief requested by the parent in this matter.
Accordingly, I conclude that it is appropriate to provide the relief requested and specified in ORDER section below.
ORDER
The DOE shall immediately issue authorizations for 46 hours of SETSS at the rate of $100 per hour to be paid for by the DOE.
Dated: February 9, 2020
Judith Schneider
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
The parent and/or the New York City Department of Education has a right to obtain a review of this decision by a State Review Officer of the New York State Education Department under Part 200.5(k) of the Regulations of the Commissioner of Education, Section 4404 of the Education Law, and the Individuals with Disabilities Education Act. The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.
EXHIBITS
District
NONE
Parent
A List of Sessions, 2018-2019, 4 pgs.
B Call List, 6/1/19, 1 pg.
C Amended Due Process Complaint, dated 12/15/19, 2 pgs.
D Initial Due Process Complaint, 4/18/19, 4 pgs.
Impartial Hearing Officer
I Prehearing Conference Summary