New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Background and Positions of the Parties

On December 6, 2021, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer (IHO), pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. 794, in this matter. I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: January 5, 2022. February 21, 2022, March 10, 2022, April 28, 2022, June 29, 2022, September 14, 2022, October 20, 2022, December 15, 2022, February 16, 2023 and March 16, 2023. Extensions of the compliance date were granted by this IHO due to exploration of possible settlement, availability of witnesses, and time for closing documents from the parties and writing the decision by this IHO. Ultimately, parent counsel submitted a closing document but counsel for the district did not, as confirmed via email on April 14, 2023.

This hearing pertains to the 2018 -19 through the 2020-21 school years. It is the parents' position that district did not provide an appropriate program during each of these school years and as relief, the parent seeks compensatory tutoring and related services. See IHO Exhibit I; Exhibit A-5. (The hearing request, Exhibit A-1, addresses four school years, 2018-19 through 2021-22 but the parent's closing document, IHO Exhibit I, adds 2021-22.) The district chose not to make an opening statement and the district did not submit a closing document. The district did not make any arguments or put on a case of any kind. Tr. 48. The district submitted no documents as evidence and put forward no witnesses at all. During the course of this hearing, I ordered funding by the district for independent evaluations to be conducted. Exhibit II.

Findings of Fact and Conclusions of Law

The obligation of the school district is to provide a disabled child with a Free and Appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to "maximize each child's potential commensurate with the opportunity provided other children." Board of Education v. Rowley, 458 U.S. 176, at 198. Clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for "objective evidence" of whether a child is likely to progress or regress under a proposed plan. In a recent decision, the United States Supreme Court clarified that an IEP must be "reasonably calculated to enable a child to make progress in light of his circumstances." Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988 (2017).

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies - (a) impeded the students' rights to a FAPE, (b) significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of FAPE or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 (SDNY 2007) aff'd 2008 WL 3852180 (2d Cir. Aug. 19, 2008): Procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents — meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the IEP — constitute a denial of a FAPE.

With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that "a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement." ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

The legal standard for funding unilateral placement cases is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359,1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent's claim? See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13(1993).

In determining who is right in this dispute, I as the Impartial Hearing Officer must follow the preponderance of the evidence. As expressed by the Second Circuit in the case of A.M. v. New York City D.O.E. (2017), describing the reasoning of an earlier Second Circuit case:

… R.E. stands for the unremarkable proposition that, when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not "reasonably calculated to enable the child to receive educational benefits," Rowley, 458 U.S. at 207, and the state's determination to the contrary is thus entitled to no deference because it is unsupported by a preponderance of the evidence. See C.F., 746 F.3d at 81 (holding that the IEP's failure to provide a 1:1 classroom resulted in the denial of a FAPE because "the testimony and reports indicat[ed] that [the child's] needs required a 1:1 placement," thereby rendering "such instruction. . . a necessary component of any plan ‘reasonably calculated to enable the child to receive educational benefits'" (quoting R.E., 694 F.3d at 190)). This remains true whether the issue relates to the content, methodology, or delivery of instruction in a child's IEP.

With regard to compensatory education, in the second circuit, it is established that "IDEA allows a hearing officer to fashion an appropriate remedy, and we [i.e., the Second Circuit] have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education." P. v. Newington, 546 F.3d 111 (2d Cir. 2008)[internal citations omitted].

Ordering compensatory education is not a mechanical matter, where a student gets one hour for every hour missed of compensatory time, nor any other such formula. Rather, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than a mechanistic formula, "the ultimate award must be fact-specific and, to accomplish IDEA's purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place." Reid v. District of Columbia, 401 F.3d 516 (DC Cir. 2005), 524. Note that Reid was cited by the second circuit in Newington, in reaching its own conclusion that compensatory education is an option. Reid, Supra., emphasizes that compensatory services are equitable relief; they are not a contractual remedy.

Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount of services missed so that the services can be made up through compensatory education. M.C. v. Cent. Reg'l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) ; Manchester Sch. Dist. V. Christopher B. 807 F. Supp. 860 (D.N.H. 1992).

Compensatory services can take many forms, as the point is to provide services that will make the student whole, with regard to the educational deprivation that the student has experienced. In Draper v. Atlanta, 518 F.3d 1275 (11th Cir. 2008), at 1284, the court concluded that "the provision of a public school option does not preclude an award of placement in a private school by a court," as compensatory services. The decision also explains that a "disabled student is not required to demonstrate that he cannot be educated in a public setting." Ibid., at 1285. The court further explained that whereas an educational program must be" reasonably calculated to enable the child to receive educational benefits, " quoting Rowley, 458 U.S. at 206-07, when it comes to compensatory services, more than that is required; i.e., in the words of the Draper decision, "… compensatory awards must do more, - they must compensate. ... Compensatory awards should place children in the position they would have been in but for the violation of the Act. [IDEA]" Ibid., at 1289.

Furthermore, the Draper court explained that IDEA does not "foreclose a compensatory award of placement in a private school." And when such an award is considered, the parent is "not required to prove that the School System was incapable of providing … an appropriate education." Ibid., at 1286.

With regard to determining what is an appropriate equitable remedy for compensatory services, it is proper to go back in time even for many years. The third circuit explained as follows:

… absent one of the two statutory exceptions found [in section] 1415 (f) (3)(D), parents have two years from the date they knew or should have known of the violation to request a due process hearing through the filing of an administrative complaint and that, assuming parents timely file that complaint and liability is proven, Congress did not abrogate our longstanding precedent that a "disabled child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem." D.F. 694 F,3d at 499 (quoting M.C. , 81 F.3d at 397.) G.L. v. Ligonier Valley School District Authority, 802 F.3d 601 (3rd Cir. 2015).

The third circuit made clear that the equitable relief could go back for many years in cases of compensatory education. Ibid. Among the lower court cases cited by G.L. to support this proposition was the New York case of K.H. v. NYCDOE, No. 12-CV-1680, 63 IDELR 295, 114 LRP 34730 (E.D.N.Y. 2014).

In a district court case in the Second circuit, Wong v. State Department of Education. 71 IDELR 128 (US Dist. Court, Conn. January, 22, 2018), the court cited G.L. to support an interpretation of the statute of limitations for IDEA cases, which is that all that is needed is that the violation occurred not more than two years after the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint.

Here, with the district having the burden of proof and having failed to put on any case whatsoever, I must find that the allegations as set forth in the hearing request, Exhibit A, with regard to the district having failed to provide an appropriate education for the years 2017-18 through 2020-21 are correct; i.e., the district did not provide an appropriate education throughout all of this time, for the reasons explained in the hearing request and through the evidence offered during the course of this hearing.

As for relief to address this failure to provide an appropriate education during all of this time, the parent seeks compensatory education and services. IHO Exhibit I. The hearing request also requested evaluations but I already ordered independent evaluations during the course of this hearing. Exhibit W.

Parent counsel acknowledges that this student received ten months of SETSS services but no related services. The parent seeks a large amount of compensatory academic tutoring to make up for what is argued to be inadequate instruction to address the academic delays as well as compensatory related services to make up for the delays in other areas. IHO Exhibit I.

With regard to academic delays, reading and math delays were noted in the recent neuropsychological evaluation. Exhibit X at 15. As the parent explained in her affidavit, there were problems with regard to IEP goals, inadequacy of services and even failure to implement services listed on IEPs throughout during the period in question in this hearing. As a result, REDACTED did poorly and achieved poor grades. Exhibit CC. The parent seeks an order for 8,050 hours of compensatory tutoring, based upon 35 hours per week, 46 weeks per school year, and five school years. The five school years are from 2017-18 through 2021-22. Exhibit CC-7, IHO Exhibit I at 22. But the hearing request only went through the 2020-21 school year. See Exhibit A-4, 9. Thus, the scope of this hearing encompasses only these four school years. There is also the problem with quantifying the academic instruction that needs to be made up here. While the neuropsychological evaluation laid out the nature of the instructional program needed going forward for this student, including with regard to mathematics, attention issues and other areas, this report's recommendations focus on the type of instruction needed going forward but not what should have been provided in the past but was not provided. The requested 35 hours per week assumes that nothing of value was provided during the four years in question. Given what is before me; i.e., that there were serious deficits in the goals and instruction provided over the course of the years in question, I agree that there should be compensation but I do not have a basis to conclude that the amount needs to be as high as 35 hours per week. I am instead ordering 10 hours per week, over 46 weeks for four years, to make up for inadequacy of the instruction over the four years in question. This totals 1,800 hours of compensatory hours, which I am ordering.

With regard to speech and language, the independent speech and language evaluation recommended 276 hours of speech and language service hours, to make up for services that were not but should have been provided. Tr. 165-166, Exhibit Z-10. I am ordering these hours to make up for the deprivation in this area. (Note that the evaluation report, Exhibit X, only recommended 207 hours, based upon three years being compensated for, but the speech evaluator/therapist changed the number to 270 when testifying, to address making up for four school years.)

With regard to occupational therapy, while parent counsel requests extensive compensatory hours in this area, IHO Exhibit I at 23, the independent evaluation in this area found functioning to be "within functional limits" and concluded that "Occupational therapy services are not recommended at this time." Exhibit BB-14. I therefore do not see a need to recommend compensatory services in this area.

With regard to physical therapy, parent counsel in the closing document did not request compensatory services in this area. And the Independent physical therapy evaluation concluded that "Physical Therapy in the school setting is not recommended" as he "performed Average to Above Average in all of the Functional Standardized Tests that were administered." Exhibit AA-8. I am therefore not recommending compensatory services in this area, as there is no need for such services.

Regarding assistive technology, the software recommended in the recent Assistive Technology evaluation, Exhibit Y, should be provided, to be installed into a DOE issued Chromebook provided to this student.

ORDER

I am ordering the following: The NYC DOE shall fund 1,800 hours of compensatory educational instruction or tutoring. In addition, the district shall fund 276 hours of compensatory speech and language hours. With regard to assistive technology, the district shall provide software to address this student's needs, as laid out in the assistive technology evaluation. Exhibit Y.

Dated: June 22, 2023

Israel S. Wahrman, Esq.

Impartial 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.