New York City Department of Education, Impartial Hearing Decision

The procedural history of this matter is confusing, complex, and dispositive. The Student has long challenged the placements offered by the district, and on February 18, 2020 filed a Complaint concerning the 2018-19 and 2019-20 school years, Case #192579. Notwithstanding the legal requirement that cases be assigned to IHOs within 2 business days of filing, the district was unable to do so and, indeed, continued to be unable to assign this matter to an IHO until it appointed my colleague, IHO Ajello to hear this matter on July 27, 2020, more than five months later than the family was entitled to have had the matter assigned. At that time, they should have been entitled to have the matter conclude within 45 days of the completion of the resolution period, or 75 days from filing, that is, no later than May 4, 2020. Nevertheless, my colleague heard the matter and issued a Final Order on February 18, 2021, more than nine months later than the date mandated by law (absent an extension for cause). The family filed this case, challenging 2020-21 shortly thereafter, on March 22, 2021.

The district views pendency arising from a decision about a disputed year as commencing on the date of the decision. In my view this is an improper legal stance. Unless otherwise expressly ordered in the decision itself, a determination of a placement retroactively for a year already commenced necessarily functions as a matter of remedy nunc pro tunc to define the student’s placement for the entire school year. Accordingly, it should constitute a pendency-defining event as of the date it takes effect, the start of the school year being decided, not effective only prospectively from the date of decision. As such, it should assert a pendency defining baseline from the start of the year decided, not from the date of the decision.

However, one views the pendency impact of my colleague’s order – whether, that is, it should set a placement clock at the start of 2018-19, or the start of 2019-20, or as of the date of the decision on February 18, 2021 – it need not concern us directly here. The harm done to the family by virtue of the more than 5-month delay in the appointment of my colleague in and of itself merits a compensatory remedy. Further, this case was itself filed, as noted, on March 22, 2021, but was not assigned to me until December 8, 2021, some 8 and a half months later than it should, by law, have been assigned to an IHO, a second, independent, and additional delay impacting the family as well.

I here Find that a compensatory award equal in substance to the pendency program but effective at the start of the 2020-21 school year until pendency availed as of the March 22, 2021 date of filing, a period shorter than the district’s delay in appointing an IHO to this matter alone, much less to the combination of the two years for which they denied this family their entitlement to due process, is a reasonable equitable remedy for that procedural delay. When one combines this equitable award with the pendency entitlement, the entire 2020-21 school year is covered, and the family’s remedy is sustained. The family’s attorney has confirmed on the record that they seek no remedy beyond the equivalent of the pendency program for the entire 2020-21 school year. The district has failed to appear, failed to make any case in support of its 2020-21 placement, and has failed as a result to meet, or even attempt to meet, its burden.

Although there is no indication that the district failed to appoint an IHO to these cases so out of malice or with any improper purpose or indeed that it could have created an IHO to be available to hear these matters in a timely fashion, that should not and cannot redound to diminish its obligation to provide a timely FAPE to the student here. Moreover, aware of the pickle it was in, the district failed to take any remedial action with respect to its failure. It could have done any of a number of things to ameliorate the denial of the family’s right to a prompt hearing, including but not limited to:

• • Contacting the family about providing compensatory services or other relief until the matter was assigned to a hearing officer;
• • Agreeing to the application of the student’s pendency rights for the portion of the 2021-2022 school year that predated the filing of the family’s due process complaint;
• • Fast-tracking the 2021-2022 case for settlement, including but not limited to prioritizing its efforts to obtain Comptroller approval for such a settlement; or
• • If Comptroller approval was not immediately forthcoming, conceding the appropriateness of the family’s request for relief, in substance providing a Confession of Judgment (which would almost certainly have the secondary effect of saving the district a portion of attorneys’ fees).^[1]

The district did none of the foregoing, nor did it provide the family with any other relief or compensatory remedy for its failure to timely assign an impartial hearing officer to hear the family’s claims. In substance, the district essentially shrugged, washing its hands of its responsibility to ensure this student’s timely access to due process. That cannot stand. “In enacting the IDEA, Congress did not intend to create a right without a remedy.” Streck v. Bd. of Educ. of the E. Greenbush Cent. Sch. Dist., 408 F. App'x 411, 415 (2d Cir. 2010). ^[2]

The IDEA grants me wide latitude in fashioning appropriate equitable compensatory relief. See, e.g., P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 123 (2d Cir. 2008); see also Reid ex rel. Reid v. D.C., 401 F.3d 516, 522-526 (D.C. Cir. 2005); G.L. v. Ligonier Valley Sch. Dist. Auth., 802 F.3d 601, 612-626 (3d Cir. 2015). The scope of the power to fashion a remedy in special education hearings is neither fully defined in, nor in any way limited by, the IDEA statute. It derives globally from the decision-maker’s equitable remedial powers, the statutory power to make things right.

As developed in the cases interpreting the intersection of the statute and the common law from which federal Equity arises, that power is broad and widely discretionary:

Section 1415(e)(2) [of IDEA] is an express grant of authority to district courts to fashion all appropriate equitable relief. The power ultimately to award such relief ordinarily includes the power to issue preliminary relief in the appropriate exercise of discretion. Moreover, in the absence of a plain congressional intention to withdraw them, traditional powers of equity remain in the district court to enforce the Act. As the Supreme Court admonished in Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1981), and Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946): “[T]he comprehensiveness of this equitable jurisdiction is not to be denied or limited in the absence of a clear and valid legislative command. Unless a statute in so many words, or by necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. ‘The great principles of equity, securing complete justice, should not be yielded to light inferences, or doubtful construction.’” Brown v. Swann, 35 US 497 (1885), 503.

Especially in view of the expressly granted equity powers in (e)(2), we cannot find in (e)(3) a “necessary and inescapable inference” that the court's traditional equity jurisdiction is to be denied.

Doe v. Brookline Sch. Comm., 722 F.2d 910, at 917-18 (1st Cir. 1983).

The Brookline court went on to conclude:

Section (e)(2) not only creates a private right of action for aggrieved parties but also explicitly authorizes courts to “grant such relief as the court determines is appropriate.” 20 U.S.C. § 1415(e)(2). Plainly this authorizes a broad grant of equitable power designed to provide courts maximum flexibility in effectuating the statutory objectives. Moreover, because the Act is remedial in nature, we are charged with interpreting its provisions generously so to effectuate the important goals Congress intended to achieve. See Gomez v. Toledo, 446 U.S. 635, 639, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980); Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 2359, 53 L.Ed.2d 320 (1977); McComb v. Super-A Fertilizer Works, 165 F.2d 824, 826 (1st Cir.1948).

Id. at 919.

Brookline is seminal because the holding in that one First Circuit case formed the foundation for the cases that constitute both the bedrock for, and the vast majority of, the cases that have developed the scope of equitable relief available in denial of FAPE cases.

The First Circuit returned to its Brookline holding a year later in Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 801 (1st Cir. 1984), holding that:

In Brookline, we recognized the availability of reimbursement to a prevailing party, Doe v. Brookline, 722 F.2d 910 (1983) at 921; see also Doe v. Anrig II, 728 F.2d 30 at 31 but did not hold that reimbursement was automatically to be awarded as a result of prevailing on the merits. We viewed it then, as now, to be a matter of equitable relief, committed to the sound discretion of the district court.”

Burlington v. Dep't of Educ. for Com. of Mass., 736 F.2d 773, 801 (1st Cir. 1984; emphasis in original).

The Burlington decision was appealed to, and affirmed by, the U.S. Supreme Court in Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass., 471 U.S. 359 (1985). Justice Rehnquist in Burlington expressly acknowledged both the availability of injunctive relief, which he described as ‘clear beyond cavil’; and also the First Circuit’s holding that compensatory relief in the form of some sort of restitution or reimbursement – in that case, reimbursement for the cost of the unilateral self-help undertaken by a family who believed that a school district had denied FAPE to their child -- falls squarely within the scope of the equitable remedial powers granted by the IDEA. Subsequently, Justice O’Connor expanded on the scope of the equitable remedial power in IDEA proceedings in Carter v. Florence County School District, 510 US 7 (1993):

[O]nce a court holds that the public placement violated IDEA, it is authorized to ‘grant such relief as the court determines is appropriate.’ 20 U.S.C. § 1415(e)(2). Under this provision, ‘equitable considerations are relevant in fashioning relief,’ Burlington, 471 U.S., at 374, 105 S.Ct., at 2005, and the court enjoys ‘broad discretion’ in so doing, id., at 369, 105 S.Ct., at 2002. Courts fashioning discretionary equitable relief under IDEA must consider all relevant factors, including the appropriate and reasonable level of reimbursement that should be required.

Id. at 15-16 (1993).

In sum, the decision-maker in a special education case has broad discretion to craft a remedy appropriate to the equitable demands of the specific facts in the particular case, including reimbursement for parent self-help responding to a district’s denial of FAPE

As a result, I here Order the district to provide the student with the full program determined to be appropriate by my colleague and ordered in Case #192759: placement in the 10-month unilateral program chosen by the family, which is the program the student attended throughout 2020-21; 12-month services in addition to that program, including 1 hour weekly of a social skills group and 2 hours weekly of Cognitive Behavior Therapy by a duly-licensed provider of the family’s selection, for the entire 2020-21 school year.

September 6, 2022

John Farago, 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. The regulations governing appeals 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.

As those Regulations detail, before filing an appeal, if either party intends to appeal the decision, a Notice of Intention to Seek Review shall be personally served upon the opposing party before the Appeal itself is filed, no later than 25 days after the date of the decision sought to be reviewed.

The Appeal itself must 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.

The Department of Education has designated the New York City Law Department to accept service of papers on its behalf, including appeals of decisions of Impartial Hearing Officers. Such service is made at 100 Church Street, New York, NY 10007 at the Messenger Center.

DOCUMENTATION ENTERED INTO THE RECORD BY FAMILY

None

DOCUMENTATION ENTERED INTO THE RECORD BY DISTRICT

None

Footnotes

[1] Given the prior impartial hearing officer’s determinations concerning the 2020-2021 school year, the district was on actual notice that, given both the factual similarities to the due process complaint in this action and the district’s burden of proof pursuant to N.Y. Educ. Law § 4404(1)(c), it was facing an uphill battle if the matter was litigated to conclusion.

[2] The reasoning here follows closely to that articulated in a different but related context – indefensible extended delays in the rendering of a decision by the Office of State Review – in the Second Circuit’s Mackey decision: We think such an outcome, if permitted to stand, is unfair to the parents. If the SRO had issued its order within thirty days of the District's November 9, 2000 receipt of the parents' request for review of the IHO's decision, Maplebrook would have been found to be T.M.'s pendency placement from December 9, 2000 forward, and the parents would, without question, have been entitled to tuition reimbursement on a pendency basis for at least part of the 2000–2001 school year. Only because the SRO was derelict, through no fault of the parents (who also sued the State because the IHO and SRO had not complied with state timeliness regulations in issuing decisions),5 the reimbursement to which they would otherwise have been entitled from the District disappeared. The District, by the district court's decision, was allowed to escape the financial consequences of pendency placement for *165 which the District otherwise would have been responsible. Mackey ex rel. Thomas M. v. Bd. of Educ. For Arlington Cent. Sch. Dist., 386 F.3d 158, 164–65 (2d Cir.), supplemented sub nom. Mackey v. Bd. of Educ. for Arlington Cent. Sch. Dist., 112 F. App'x 89 (2d Cir. 2004)