New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 545049 - NYC: 201635

FINDINGS OF FACT AND DECISION

Case Number: 201635

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date(s) of Hearing: May 12, 2022

June 27, 2022

Actual Record Close Date: June 27, 2022

Hearing Officer: Katia Mehu, Esq.

INTRODUCTION

On September 22, 2020, [REDACTED] (Parent), the parent of [REDACTED] (Student), filed a due process complaint (DPC) for the 2020-2021 school year pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. section 1415(f), Article 89, Section 3602-c and Section 4404(1), of the New York State Education Law. The DPC was subsequently amended on November 8, 2021. (Parent Exh. A.) At Parent’s request, a pendency hearing convened on February 4, 2022, and a pendency order was issued on March 4, 2022. A due process hearing scheduled for May 12, 2022, was adjourned and reconvened on June 27, 2022. A list of the documentary evidence submitted and admitted into evidence is appended to this Order. Documents the undersigned deemed relevant to the render of a decision are made part of the hearing record and the list is also appended to this Order. The compliance date for issuing a decision in this proceeding has been extended. This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO).

BACKGROUND

Student, DOB [REDACTED], is presently [REDACTED] years old, and in 2016, Student’s disability classification was [REDACTED]. (Parent Exh. C-1.) The IESP developed on November 21, 2016, was scheduled to be implemented on December 7, 2016. (Id.) After Parent filed the DPC at issue on September 22, 2020, the CSE team developed an IESP for Student on February 5, 2021. (Parent Exh. B.) Student’s disability classification was changed to [REDACTED], and the IESP developed on February 5, 2021, was scheduled to be implemented on March 1, 2021. (Id. at B-1.) Parent’s request for a pendency order for the 2020-2021 school year was granted. (IHO Exh. I.) In relevant part, Student’s pendency placement was as recommended and memorialized in the November 21, 2016 IESP. (Id. at I-6.) District was ordered to provide special education teacher support services (SETSS) and related services to Student retroactive to September 22, 2020, the filing date of the original due process complaint, until February 29, 2021, the date the 2016 IESP expired. (Id. at I-6.) District was ordered to provide Student the services delineated in the February 5, 2021 IESP from March 1, 2021, the implementation date of the February 5, 2021 IESP, until the resolution of this dispute. (Id.)

DUE PROCESS HEARING

In the DPC, Parent had requested compensatory SETSS and related services for any periods not provided during the 2020-2021 school year. (Parent Exh. A-3.) The hearing proceeded on that basis and, testifying by affidavit, Parent requested the DOE fund a bank of compensatory services as follows:

5. As a result of the above, [Student] did not receive SETSS from the NYCDOE from [REDACTED] until [REDACTED].

6. I am requesting that [Student] receive a bank of [REDACTED] of SETSS corresponding to the [REDACTED] during which the District failed to implement its own recommendations.

(Parent Exh. E-2.) District admitted no exhibits into evidence, had no objections to Parent’s exhibits, and conceded Student was mandated to receive the services. Further, the District did not exercise the right to cross-examine Parent, and she did not appear in the proceedings.

LEGAL STANDARDS

A. The IDEA’s Legal Framework

A board of education must offer a FAPE to each student with a disability, residing in the school district, whom requires special education services or programs. 20 U.S.C. § 1412(a)(1)(A); Educ. Law § 4402(2)(a), (b)(2)). Students who are enrolled in nonpublic schools, however, are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school. See 34 CFR 300.134, 300.137(a), (c), 300.138(b)).

Under the dual-enrollment statute—Education Law § 3602-c—students who reside in New York and attend nonpublic schools located within the state are eligible for special education services. Article 73 of the New York State Education Law allows for the creation of an IESP upon the written request of the parent. Education Law 3602-c(2)(a) directs parents to file a request for services on or before the first day of June preceding the school year for which the request for services is made.^[1] The task of creating an IESP is assigned to the same committee that designs educational programming for students with disabilities under IDEA, namely 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 §§ 3602-c; 4402; 8 NYCRR 200.3, 200.4(d)(2); Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007; see generally 20 U.S.C. § 1414(d)(1)(A)-(B); 34 CFR 300.320, 300.321.

B. Burden of Persuasion in New York State IEP Proceedings

Under the IDEA, the burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief. See Schaffer v. Weast, 546 U.S. 49, 59-62 (2005) (finding it improper under the IDEA to assume that every IEP is invalid until the school district demonstrates that it is not). However, under New York State law, the burden of proof is on the school district during an impartial hearing, except for when a parent is seeking tuition reimbursement for a unilateral placement. The parent then has the burden of proof regarding the appropriateness of such placement. Educ. Law § 4404(1)(c); see Hardison v. Bd. of Educ. of the Oneonta City Sch. Dist., 773 F.3d 372, 386 (2d Cir. 2014); C.F. v. New York City Dep't of Educ., 746 F.3d 68, 76 (2d Cir. 2014); R.E. v. New York City Dep't of Educ., 694 F.3d 167,184-85 (2d Cir. 2012).

If disputes arise between parents and school districts related to IESPs, State law provides that “[r]eview of the recommendation of the committee on special education may be obtained by the parent or person in parental relation of the pupil pursuant to the provisions of [Education Law § 4404],” which effectuates the due process provisions called for by IDEA. Educ. Law § 3602-c(2)(b)(1). Incorporated among the procedural protections of the IDEA and the analogous State law provisions governing dual-enrollment programming is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing. Educ. Law § 4404(1); 8 NYCRR 200.5(h)-(l); Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder, 72 NY2d 174, 184 (1988); see also 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 CFR 300.151-300.152, 300.506, 300.511.

C. Compensatory Educational Services Remedy

Compensatory education is an equitable remedy tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp 147 (N.D.N.Y. 1997). An injured party is entitled to compensatory education when the IDEA is violated through the denial of a free and appropriate public education. Phillips ex rel. T.P. v. Dist. of D.C., 736 F.Supp.2d 240, 247 (D. D.C. 2010); accord, Reid v. District of Columbia, 401 F.3d 516, 522 (D.C. Cir. 2005) (reasoning that, if IDEA permits reimbursement for educational services, then it must also allow awards of the services themselves); see also Doe v. E. Lyme Bd. of Educ., 790 F.3d 440 (2d Cir. 2015) ('Doe I'). “Under the theory of ‘compensatory education,’ courts and hearing officers may award ‘educational services... to be provided prospectively to compensate for a past deficient program.’” Reid, 401 F.3d at 522; accord, Jane Doe v. E. Lyme Bd. of Educ., 962 F.3d 649, 659 (2nd Cir. 2020) ('Doe II').

When 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.” Reid, 401 F.3d at 524; P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 123 (2nd Cir. 2008) (compensatory education awards should be designed so as to appropriately address the problems with the IEP). The D.C. District has held, “even if entitlement to an award is shown through a denial of a free and appropriate public education, ‘[i]t may be conceivable that no compensatory education is required for the denial of [a free and appropriate public education]... either because it would not help or because [the student] has flourished in his current placement....’” Phillips, 736 F.Supp.2d at 247 (quoting Thomas v. Dist. of Columbia, 407 F.Supp.2d 102, 115 (D. D.C. 2005)).

FINDINGS OF FACT AND DECISION

Student resides within [REDACTED] and was parentally placed at a non-public school for the 2021-2022 academic year. As a result, Student is eligible to receive special education services under the dual-enrollment statute. The documentary evidence comprising the evidentiary record does not independently establish that Parent, had, in writing, requested special education services from the school district of location by June 1, 2021.^[2] However, educational services may be provided by agreement and, here, the District asserted that the services due to Student for the 2021-2022 academic year were as mandated in the November 21, 2016 IESP. Accordingly District has the obligation to provide the services in conformity with the November 21, 2016 IESP. Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR § 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR § 300.132.

The burden of proof is on the school district during an impartial hearing and, here, the CSE conceded Student did not receive the entirety of the mandated SETSS services. However, a default judgment that Student has been denied a FAPE is not permissible, as an IHO’s decision must be made on substantive grounds based on whether the student received a FAPE. 20 U.S.C. § 1415(f)(3)(E)(i); Branham v. Govt. of the Dist. of Columbia, 427 F.3d 7, 11-12 (D.C. Cir. 2005) (default judgments are disfavored).

With regard to the implementation of a student’s IEP, a denial of a FAPE occurs if there was more than a de minimis failure to implement all elements of the IEP, and instead, the school district failed to implement substantial or significant provisions of the IEP. Houston Indep. Sch. Dist. v. Bobby R., 200 F.3d 341, 349 (5th Cir. 2000); Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d 1243, 1254 (10th Cir. 2008) (inappropriate use of timeout strategy from October 28, 2002, until January 9, 2003).

Parent asserts Student did not receive SETSS services for a period of [REDACTED] from [REDACTED], to [REDACTED]. The annual term model of instruction in New York City middle schools provides students with 36 weeks of instruction. SETSS provide specially designed instruction delivered to an individual, and the failure to provide Student with SETSS for [REDACTED] rises to more than a de minimis failure to implement all elements of Student’s recommended program. Consequently, District failed to provide Student with appropriate special education on an equitable basis during the 2020-2021 academic year. Educ. Law § 3602-c(2)(a); (7)(a)-(b).

The compensatory education determination is a fact-specific analysis tailored to meet the unique circumstances of each child. Wenger, 979 F.Supp. at 151. The evidence presented here does not support awarding Student compensatory services. Parent’s evidence is comprised of an affidavit attesting to the inability to locate a SETSS provider from [REDACTED] to [REDACTED].

There is a complete absence of evidence regarding any lack of progress towards Student’s IESP goals, loss of academic skills, potential regression from the failure to receive SETSS, and the damage Student sustained. See Reid, 401 F.3d at 523 (expert testimony established the damage the student sustained was quite severe, as the student not only failed to keep pace with his peers under the school district's IEP but learned counterproductive compensatory techniques that must be unlearned before he may advance); see also Application of a Student with a Disability, Appeal No. 20-203 (cautioning against entry of default judgement-type relief in the absence of evidence regarding the student); Application of a Student with a Disability, Appeal No. 20-167 (same).

There is no evidence to support a finding that there was a lack of educational benefit or a regression resulting from the failure of the DOE to provide educational services in a timely and consistent manner. See Wenger, 979 F. Supp. at 151. There is no evidence addressing whether the deprivation of SETSS could be remedied through the provision of additional services. Nor is there evidence that an hour-by-hour compensation award is more likely to address Student’s educational deficit successfully. See Bd. of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (“a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully.”); M.M. v. New York City Dep’t of Educ., 2017 WL 1194685, at *8 (S.D.N.Y. Mar. 30, 2017) (noting that “[c]ommon sense and experience teaches that services that may be valuable for, or even critical to, a child’s educational achievement when provided in small to moderate amounts may become close to useless, or even burdensome, if provided in overwhelming quantity.”)

Although the evidence did not establish that Student failed to make progress in the general education curriculum, Parent has the option of requesting the CSE assess whether additional services may be warranted as a result of the pandemic. Were the CSE to determine Student is entitled to compensatory services, State guidance directs school districts to develop a written document to amend or modify the student’s current IEP. See Compensatory Services for Students with Disabilities as a Result of the COVID-19 Pandemic, at p. 5, Office of Special Educ. Mem. (June 2021) (hereinafter “June 2021 Compensatory Services Policy Brief”).^[3]

The United States Department of Education (USDOE) and the New York State Education Department’s (NYSED) Office of Special Education have issued guidance, acknowledging that the global pandemic and the resulting closure of schools resulted in “an inevitable delay” in districts providing services to students with disabilities or engaging in the decision-making process regarding such services. See Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, 76 IDELR 104 (OCR & OSERS 2020) (hereinafter “USDOE Supplemental Fact Sheet”); June 2021 Compensatory Services Policy Brief, at p 1. In addition, local educational agencies advised the USDOE that they were “having difficulty consistently providing the services determined necessary to meet [each] child's needs” and that, as a result, “some children may not have received appropriate services to allow them to make progress anticipated in their IEP goals.” Return To School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act, 79 IDELR 232 (OSERS 2021) (hereinafter, “Return To School Roadmap”).

To address these delays and other delivery-related issues that occurred as a result of the pandemic, OSEP and NYSED have advised that a CSE should convene and “make individualized decisions about each child’s present levels of academic achievement and functional performance and determine whether, and to what extent, compensatory services may be necessary to mitigate the impact of the COVID-19 pandemic on the child's receipt of appropriate services.” See Return To School Roadmap; June 2021 Compensatory Services Policy Brief, at pp. 1, 3; see also USDOE Supplemental Fact Sheet; Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak, 76 IDELR 77 (OCR & OSERS 2020); Supplement #2 - Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (Covid-19) Outbreak in New York State, at pp. 2-5, Office of Special Educ. Mem. (June 2020) (hereinafter, “NYSED Supplement #2”).^[4] See generally, NYSED Special Education Resources and Guidance related to Coronavirus (COVID-19).^[5] The roadmap suggests the CSE review include a discussion of whether the student has new or different needs compared to before the pandemic, whether the student experienced a loss of skill or lack of expected progress towards annual goals and in the general education curriculum, whether evaluations of the student or implementation of an IEP was delayed, and whether some of the student's IEP services could not be implemented due to the available methods of service delivery or whether such methods of service delivery were not appropriate to meet the student’s needs. Return To School Roadmap, 79 IDELR 232; June 2021 Compensatory Services Policy Brief, at pp. 3-4; see NYSED Supplement #2, at p. 1.

NYSED reiterates Parents should utilize the due process hearing mechanism if the parent disagrees with a CSE's determination regarding the student’s entitlement to compensatory services and/or type of services:

Parents of students with disabilities may resolve disputes with school districts regarding the provision of FAPE by pursuing one of the dispute resolution options provided for in the IDEA. A parent may file a State complaint directly with NYSED in accordance with Commissioner's Regulation section 200.5(l), request mediation in accordance with Commissioner's Regulation section 200.5(h), or file a due process complaint and proceed to hearing in accordance with Commissioner's Regulation section 200.5(j).

June 2021 Compensatory Services Policy Brief at p 5; NYSED Supplement #2 at p. 6.

The administrative agencies have established guidelines to assist school districts and parents/guardians in making an individualized determination as to whether and to what extent compensatory services may be needed for a student with a disability as a result of the COVID-19 pandemic. A CSE should have the first opportunity to consider the student’s needs and whether any additional services may be warranted as a result of the pandemic. There is no indication that this has yet occurred for this student. Therefore, the parents may request the CSE assess whether additional services may be warranted as a result of the pandemic and the parties may, thereafter, amend or modify Student’s current IESP if the CSE determines Student is entitled to compensatory services. June 2021 Compensatory Services Policy Brief at p 5.

IT IS HEREBY ORDERED

Parent’s request for an order awarding Student a bank of [REDACTED] of SETSS corresponding to the [REDACTED] during which the District failed to implement Student’s IESP is DENIED.

Dated: August 19, 2022 /s/ Katia Mehu

KATIA MEHU

Impartial Hearing Officer

Copies:

[REDACTED] – [REDACTED]; [REDACTED]

[REDACTED] – [REDACTED]; [REDACTED]

[REDACTED] – [REDACTED]

APPEARANCES ON MAY 12, 2022

For Student: [REDACTED], Legal Assistant

For the Department of Education: [REDACTED], District Representative

APPEARANCES ON JUNE 27, 2022

For Student: [REDACTED], Attorney

For the Department of Education: [REDACTED], District Representative

DOCUMENTATION ENTERED INTO THE RECORD

PARENT DISCLOSURE

Exhibit # Date Document Description # of Pages

A 11/07/2021 Amended DPC 5

B 02/05/2021 IESP 12

C 11/21/2016 IESP 9 D 09/21/2020 Ten-Day Notice 2

E 06/23/2022 Parent’s Affidavit 2

IHO DOCUMENTS

Exhibit # Date Document Description # of Pages

I 03/04/2022 Pendency Order 8

II 06/21/2022 Interim Order 3

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] James P. DeLorenzo’s 2007 Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students, instructs: The parent must request special education services in writing to the school district of location by June 1 preceding the school year for which the request for services is made, except that when a student is first identified as a student with a disability after the first day of June preceding the school year for which the request is made and prior to the first day of April of such current school year, the parent must submit the written request for Services within 30 days after the student was first identified.

[2] (See IHO Exh. II.)

[3] Available at https://www.p12.nysed.gov/specialed/publications/2021-memos/compensatory-services-for-students-with-disabilities-result-covid-19-pandemic.pdf (accessed August 16, 2022).

[4] Available at https://www.p12.nysed.gov/specialed/publications/2020-memos/special-education-supplement-2-covid-qa-memo-6-20-2020.pdf (accessed August 16, 2022).

[5] Available at https://www.p12.nysed.gov/specialed/publications/2020-memos/provision-of-services-during-covid-19-pandemic.htm (accessed August 16, 2022).