Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 190709

Student’s Name: [Redacted]

Hearing Requested By: Parents

District: [Redacted]

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: January 7, 2022

Table of Contents

I. Introduction 3

II. Overview 3 a. Parents Position 4 b. District’s Position 4 c. Student History 4 d. Student Needs 4 i. Parent Testimony 4 e. SETSS Services 5 i. SETSS Teacher Testimony 5 ii. Parent Testimony 5

III. Legal Background 6

IV. Analysis 7

I. Introduction

This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student. A complaint notice was filed on November 5, 2019. A pendency hearing was held on November 6, 2019, and I issued a pendency order on December 11, 2019, effective November 5, 2019. (IHO #1) A consolidation of two complaint notices (Ex.s A and N) was made on July 30 2021. (IHO #2) For a significant time the parties considered settlement, but ultimately, they reached an impasse. This decision follows^[1].

II. Overview

This case involves a demand for “compensatory education” for the 2018-2019, 2019-2020, and 2020-2021 SYs school years (SYs). Regarding the remedy of compensatory education, I find guidance in Reid v. District of Columbia, 401 F.3d 516, (D.C. Cir. 2005) (finding that compensatory education is not a “form of damages” because the courts act in equity when remedying IDEA violations and must “do equity and... mould each decree to the necessities of the particular case”) (quoting Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944)); See also, Wenger v. Canastota, 979 F. Supp. 147, 150-51 [N.D.N.Y. 1997]. a. Parents Position The Parent alleges that, for the 2018-2019, 2019-2020, and 2020-2021 school years (SYs), the District failed to provide the Student with, inter alia, a Free Appropriate Public Education (FAPE). (Ex. A) As a result, compensatory services are warranted. (Ex. N) b. District’s Position

At the hearing, the District did not present a case to defend a FAPE. They did not call witnesses, nor did they proffer documents for inclusion into the record. After a thorough review of the record, it is my understanding that the District’s position is that a proper remedy should include services the Student should have received under the pendency order but were not provided as well as mandated services under pendency that the Parent obtained independently. c. Student History

At the time the complaint notice was filed, the Student was [Redacted] years old. (Ex.s A, K) The Student has been diagnosed with Epilepsy (Ex. M-1) He presents with severe delays in the areas of cognition, receptive and expressive language, academics, socialization, and activities of daily living. (Ex. M-1) The Student has significant seizure activity, with daily seizures. (Ex. M-1) Due to his seizures, his health is extremely fragile. (Ex. M-1) After the Student has a seizure, it takes him time to resume his prior levels of functioning and he often experiences regression. (Ex. M-1) d. Student Needs i. Parent Testimony The Parent testified that the Student needs intensive home-based and individualized 1:1 instruction, and a program of related services, assistive technology and other supports. (Ex. M-2) e. SETSS Services i. SETSS Teacher Testimony The SETSS Teacher testified by affidavit that she has been working with the Student for approximately five (5) years. (Ex. L-1) During the 2016-2017 SY, she raised her rate from $125 to $150 per hour. (Ex. L-1) She testified that sometime during that year, the District began to reimburse the Parent at $125 per hour. She said that during that SY, the Parent paid the difference but stopped paying her in April 2018. (Ex. L-1) She testified that on January 11, 2019, the District authorized her to bill 383 compensatory hours in Case #159585 but was no longer billing under pendency order for this case. (Ex. L-1) She was funded at the rate from April 2018-November 2018 and December 2018-January 2019. (Ex. L-1) She was not paid for 15 hours from April 2019. (Ex. L-1) In May 2019, the District again paid her at a rate of $125 per hour. (Ex. L-1) She testified that she was not paid from the second half of April 2019 to September 2019. (Ex. L-2) ii. Parent Testimony The Parent testified that the SETSS Teacher had been providing 1:1 services for approximately five years for approximately two hours per day. (Ex. M-2) She testified that during the 2016-2017 SY, the SETTS teacher raised her rate from $125 to $150 per hour, but the District stopped paying that rate and paid her $125 per hour. (Ex. M-2) During the 2017-2018 SY, the Parent said that she had to pay for part of the services. (Ex. M-2) The Parent testified that on January 11, 2019, the District authorized the SETSS Teacher to bill 383 compensatory hours at $150 per hour; she resubmitted the Teacher’s bill for April – November 2018, which were paid. (Ex. M-3) The District also paid for December 2018 and January 2019. (Ex. M-3) The District did not reimburse the Parent for the amount she had to pay the Teacher to make up for the difference between what she charged and what the District reimbursed. (Ex. M-3) In total, she is owed $3,550, and an additional $275 for the amount unpaid in April 2018 and other charges until the matter is resolved. (Ex. M-4)

III. Legal Background The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

• • (A) have been provided at public expense, under public supervision and direction, and without charge,
• • (B) meet the standards of the state educational agency,
• • (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
• • (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[2]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

IV. Analysis The District bore the burden of both production and persuasion to establish that it provided the Student with a FAPE as well as all other issues alleged in the DPC. N.Y. Educ. Law §4404(1)(c); See Application of a Student with a Disability, Appeal No. (“SRO No.”) 16-028; 13-200; SRO No. 11-091; SRO No. 11-053; (all holding that, in cases that do not involve a unilateral placement, the burden of proof is on the District). See also L.O. v. New York City Dep't of Educ., No. 15-1019, 2016 WL 2942301 (2d Cir. May 20, 2016).

In compensatory education cases, the burden of proof as to liability and remedy falls on the district; when, as here, there is a concession of FAPE. SRO No. 14-014. See also, SRO 16-033.

In this case the District rested without introducing evidence and conceded it failed to offer the Student a FAPE for the SY at issue. Factual allegations in the DPC for which the District bears the burden of proof are deemed admitted if the District fails to address them at the hearing. See SRO No.15-011 (where District conceded and failed to address any allegations, it was deemed to admit deficiencies in IEP); SRO No. 14-179 (same); SRO No. 01-044 (same).

Accordingly, I find that a FAPE was denied for the 2018-2019, 2019-2020 and 202-2021 SYs.

Compensatory Education In fashioning an appropriate award of compensatory education, one must be mindful that the central purpose of such award is to provide a remedy for a specific denial of a FAPE (see Newington, 546 F.3d at 123 [holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE]; see also 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] [holding that "[a]ppropriate relief is to ensure that the student is appropriately educated within the meaning of the IDEA"]).

Therefore, an award of additional services 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. 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, 525 [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"]; Parents of Student W. v. Puyallup Sch. Dist. 31 F.3d 1489, 1497 ["There is no obligation to provide a day-for-day compensation for time missed"]; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091). See, specifically, Application of a Student with a Disability, Appeal No. 14-014.

It is therefore ORDERED a. The District denied the Student a FAPE for the 2017-2018, 2018-2019, and 2020-2021 SYs. b. The District violated the Student’s right to pendency. c. Within 30 days of this decision the District will calculate the following:

• • The number of hours of services in each of the following categories that the student was owed pursuant to pendency during the period between November 6, 2019, and January 7, 2022 (the “Compensatory Time Period”) based on the pendency order in this case, directing the District to provide the Student with 15 hours per week of SETSS, 1 hour per week of OT, 1 hour per week of PT and 2.5 hours per week of SLT. (IHO #1)
• • The number of hours of services in each of the above categories (SETSS, PT, OT and SLT) that the District delivered and/or funded during the Compensatory Time Period.
• • At the end of 30 days, the District will award a bank of hours of SETSS, PT, OT and SLT at a reasonable market rate to providers selected by the parents by subtracting the number of hours of service provided and/or funded from the number of hours owed during the Compensatory Time Period as per paragraph (c). The difference for each service will constitute the compensatory bank for SETSS, OT, PT and SLT. (The District will fund compensatory banks of SETSS at a rate of up to $150 per hour).
• • Further, upon submission of proof of payment and invoices documenting services, the District will also reimburse the Parent for any or all expenses relative to any SETSS that she purchased out of her own funds during the Compensatory Time Period including but not limited to the time period between September 2017 and March 2018 pursuant to which she has an out-of- pocket expense of $3550 due to the differential in the rate that the SETSS Teacher charged ($150 per hour) and the rate that the District paid the SETSS Teacher ($125 per hour).
• • In addition, the District will fund SETSS services provided by the SETSS Teacher at the rate of $150 per hour for all SETSS services she provided to the Student between April 2019 up and November 6, 2019. If the District has already paid the SETSS Teacher for any hours of SETSS at $125 per hour, the District is directed to pay the SETSS Teacher an additional $25 per hour for any hour worked for which she was already paid.
• • Reimbursement to the parent for the services of the trainer she hired to provide modified physical education to the Student upon presentation of proper invoicing for such services.
• • Further, upon submission of proof of payment and invoices documenting services, if the District has not already done so, it will reimburse the Parent for any or all expenses relative to any SLT or OT that she purchased during the Compensatory Time Period. This amount will be deducted from the bank of compensatory services.

Dated: January 7, 2022

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.

Footnotes

[1] A hearing was held on December 11, 2019; January 31, 2020; February 25, 2020; March 4, 2020; May 7, 2020; July 9, 2020; October 28, 2020; November 25, 2020; February 26, 2021; March 9, 2021; April 20, 2021; May 26, 2021; June 21, 2021; July 30, 2021; August 25, 2021; and November 17, 2021.

[2] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).