Impartial Hearing Decision

DECISION AND ORDER Case Number: 191161 Student’s Name: REDACTED District: Hearing Requested By: Parents Hearing Officer: Martin J. Kehoe III, Esq.

The Student’s Parent(s) are pursuing an impartial hearing request. The Due Process Complaint Notice is in the record as exhibit “A”. It is dated November 26, 2019. I was appointed as the JHO on December 4, 2019. In this case the District did not call witnesses or offer documentary evidence. The Parent did offer exhibits and did testify regarding the allegations in the complaint notice. I take away several points from the Parent’s presentation. First, the Student has the potential for academic success given the proper services to assist with academics. Currently the Student is currently a teenager with a relatively full schedule (See parent’s testimony and Ex. E; ie. “friends in the neighborhood”). The claim that Special Education Teacher Support Services were mandated but never implemented during the 2018-2019 school year is valid. Although I respect the Parent’s choice of identifying a provider of her choice, equitable considerations warrant a limit on the exercise of a virtual veto in eliminating a provider who was ready, willing, and able to work. Compensatory Education 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].

Within the Second Circuit, compensatory education has been awarded to students who are ineligible by reason of age or graduation if there has been a gross violation of the IDEA resulting in the denial of, or exclusion from, educational services for a substantial period of time (see 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 [2d Cir. 1990]; Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Cosgrove v. Bd. of Educ., 175 F. Supp. 2d 375, 387 [N.D.N.Y. 2001]. Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA (see 20 U.S.C. §§ 1401[3], 1412[a][1][B]; Educ. Law §§ 3202[1], 4401[1], 4402[5]). Within the Second Circuit, compensatory education 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. vy. Newington Bd. of Educ., 546 F.3d at 123 [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]"]; see generally R.C. v. Bd. of Educ., 2008 WL 9731053, at 12-13 [S.D.N.Y. Mar. 6, 2008], adopted at 2008 WL 9731174 [Jul. 7, 2008}). Likewise, SROs have awarded compensatory "additional services" to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation (Bd. of Educ. v. Munoz, 16 A.D.3d 1142 [4th Dep't 2005] [finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction]; Application of the Dep't of Educ., Appeal No. 13-236 [upholding an additional service award of physical therapy]; Application of a Student with a Disability, Appeal Nos. 13-226 & 13-228 [awarding additional services in the form of tutoring or other direct support from a special education teacher]; Application of a Student with a Disability, Appeal No. 13-208 [upholding an additional service award of 100 hours of compensatory one-to-one tutoring in math and reading]; Application of the Dep't of Edue., Appeal No. 13-048 [awarding the student with 1:1 counseling services and 1:1 speech-language therapy in compensatory additional services]). 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 "[alppropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the IDEA"). Accordingly, 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]jompensatory 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. vy. Puyallup Sch, Dist. 3\ 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. Enhanced Rate In this type of case before me, where the parties agree regarding services to be delivered, but the Parents cannot find a provider, there are myriad variables that influence the appropriate market rate for enhanced rate services. (i.e. language of delivery, locale of delivery, characteristics of student, agency overhead, frequency of services, etc.) The prospect of developing a full record in each of the numerous “enhanced rate” cases is daunting and while possible, in the existing environment on Special Education litigation in New York City', an option has arisen that allows for flexibility and fairness while expeditiously ensuring the timely provision of services to the Students that all agree, require such services. Over time, I have begun to notice that the District’s “Implementation Unit”, when given the opportunity to execute interim orders and pendency decisions, is adept at identifying providers without issue. In effect that unit is “making the market” for enhanced rate services.* Accordingly, I order that the District pay for a portion of the services identified in the uncontested IESP dated 10/11/16 (Ex. C) at an enhanced market rate to be determined by the District’s “implementation unit” in consultation with the providers and/or their agents. [ recognize there are a finite number of hours per week, and the demands of the ' In overruling the District objection to the instant disposition, I remain focused on the fact that the Student has been denied a FAPE for a long time during his short life and the District has been unresponsive over the course of this case. This is an obvious example of the endemic failures that plague the NYCDOE impartial hearing process. “The failure to promptly resolve due process complaints keeps children in an ‘administrative limbo’ and, for some, delays to free appropriate public education to which they are entitled” Deusdedi Merced, Report External Review of the New York City Impartial Hearing Office, at 18-19 (2019)!, * While it may be inevitable for a provider to reach an impasse with the implementation unit, that has yet to be brought to my attention.

Student’s school year along with significant hours of tutoring, may be daunting. Inherent limits of stamina, pace, concentration and the like could easily place an unintended burden on the Student and the family. I attempt to mitigate these unintended consequences with my order. I therefore direct the District to set up and administer a bank of one hundred and twenty (120) hours of payment at enhanced market rate for SETSS services to be paid to a provider of the Parent’s choice. These hours are to be available for use for one year from the date of this order at the discretion of the Parent. Any unused hours at the end of this time period will be forfeited. Dated: June 23, 2020 So Ordered,

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.

See Attached Parent exhibits: marked with uppercase letters(A-Z); Joint Parent & Deg artm ff of Education exhibits: marked with lowercase letters (a-z)Z | certify thattheevidence listed herein w ithdrawn on thedateindicatedabove.pate.06/23/2020 Impartial Hearing Officer: ] (| Peery (AEF March2020

Please return completedform and evidence to: Student’s Name: Telephone: (718) 935-3280 Fax: (718) 394-6181 Date of aes Pier sheet for each date of hearing) Seater Brief Description of Exhibit: “a a on’ dite PWithatewn A | DPC; 11/26/2019 2 B |NewIESP; 11/6/19 10 C | OldJESP;10/11/16 6 D | Academic Progress Report; 11/1/19 1 E |. Neuropsychological Evaluation;3/1/19 20 * Parent exhibits: marked with uppercase letters(A-Z); Joint Paren i certifythattheevidence listed herein was offered, admittedor withdrawnon thedateindicatedabove. impartialHearing Officer: 342018 (signature) Date: DepartmentofEducation exhibits: marked with lowercase letters (2-2)