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CASE NUMBER: 547860 - NYC: 204354
FINDINGS OF FACT AND DECISION
Student's Name: REDACTED
Date of Hearing: Various
Hearing Officer: Michael Lazan, Esq.
The matter of the above Student came before me as Impartial Hearing Officer pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Sect. 1415(f)(1). Appended to the record are the names of the persons who appeared.
The parent brought this complaint to challenge the Student's IESPs for the 2020-2021 school year. The parent is asking for SETTS services, at an "enhanced" rate, as relief. Upon the joint application of the parties, multiple timelines extensions were granted in this case. For each such extension, I reviewed the factors in 8 NYCRR Sect. 200.5(j)(5)(ii) and determined that this was an appropriate matter for extension. There was also no showing of any financial or other consequences to the parties or to the Student's educational well-being. There was no showing of any prejudice to the Department.
CONCLUSIONS OF LAW
In 2007 the New York State legislature passed a bill that was signed by the Governor which switches the burden from parent to school district except for the second criterion in cases for tuition reimbursement or payment. Chapter 583 of the Laws of 2007.
A FAPE is offered to a student when (a) the school district 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 the student to receive educational benefits. While Districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
A free appropriate public education ("FAPE") "must include 'special education and related services' tailored to meet the unique needs of a particular child and be 'reasonably calculated to enable the child to receive educational benefits.' " Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 207 (1982)) (internal citation omitted). Allegations regarding FAPE can be characterized as "substantive" or "procedural" violations. While school districts are required to comply with all IDEA procedures, not all procedural errors render an IEP legally inadequate under the IDEA. Pursuant to the IDEA, when procedural violations are alleged, an administrative officer may find that a child did not receive a FAPE only if the procedural inadequacies (a) impeded the child's right to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE to the child, or (c) caused a deprivation of educational benefits. 20 U.S.C. Sect. 1415(f)(1)(E)(ii); 34 C.F.R. Sect. 300.513(a)(2).
The school district bears the burden of persuasion. However, the school district did not present any witnesses who rebutted Petitioner's claims that the Student's 2020-2021 IESP was not implemented. The school district is therefore deemed to have denied the Student a FAPE.
As relief, Petitioner is seeking that the Department of Education fund [REDACTED]'s SETSS services of seven hours per week for 40 weeks at the enhanced rate of $125 per hour of service. 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). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE. E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 (2d Cir. 2014); 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"].
Under the circumstances, Petitioner's hour for hour proposal is reasonable. Hour for hour compensatory education awards are appropriate in the Second Circuit in cases involving SETTS. State Review Officer Decision, Appeal No. 21-076 (October 22, 2021). Contrary to the school district's suggestion, parents do not have a burden to "prove" an entitlement to compensatory education (other than showing that the Student was denied a FAPE). Cousins v. District of Columbia., 880 F. Supp. 2d 142, 149 (D.D.C. 2012)(hearing officer erred by determining that the plaintiffs adduced insufficient testimony to warrant a specific compensatory education award). There is also no requirement for a "contract" with the provider of services, and there is nothing in this record to suggest that this should be the rare case where a compensatory education award is denied on equitable grounds. The relief will be granted as requested.
ORDER
As a result of the foregoing, I order the following:
1. The Department of Education shall provide the Student with Petitioner with 280 hours of SETTS, in the form of tutoring, by a qualified provider at the rate of $125 per hour.
Dated: April 4, 2023
ACRD: April 4, 2023
Michael Lazan
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.