New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 551508 - NYC: 207739

FINDINGS OF FACT AND DECISION

Case Number: 207739

Student’s Name: Redacted

Hearing Requested By: Parents

District: REDACTED

Hearing Officer: Martin J. Kehoe III, Esq.

Actual Record Close Date: January 8, 2022

Table of Contents

I. Introduction 3

II. Overview 3

Parent’s Position 5

District’s Position 5

Student History 5

Background of the Case 6

Legal Overview 6

Res Judicata 8

III. Compensatory Education: What is the Appropriate Remedy for Denial of a FAPE? 10

Compensatory Education Legal Standard 10

Analysis 12

Prevailing Rate v. Market Rate 13

Concluding Remarks and Rationale for Reducing the Award 14

• • Introduction This document constitutes the Decision and Order of the undersigned, the duly designated Impartial Hearing Officer (IHO) in an Impartial Hearing brought pursuant to the Individuals with Disabilities Education Act (IDEA) and the New York State Education Laws. The School District will be referred to as District, the parent(s) as Parent(s) and the student will be referred to as Student. The Parents filed the complaint notice on April 8, 2021. (Ex. A) I was appointed as the IHO for this case on December 9, 2021. A hearing was held on January 7, 2022.

The scope of the impartial hearing is limited to the issues raised in the complaint notice. 8 NYCRR 200.5 (j)(1)(ii), 20 U.S.C. 1415(F)(3)(B), B.P. v. New York City Dep’t of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012); R.C. ex rel. M.C. v. Byram Hills School Dist., No. 11 civ. 3938, 2012 WL 5862736, p. 11 (S.D.N.Y. Nov. 2012). Issues and allegations not contained within the four corners of this complaint are not to be considered pursuant to the applicable case law and regulations cited above. Similarly, any claims set forth within the complaint notice that were not addressed at the hearing should not be considered as they are considered abandoned. Application of a Child With A Disability Appeal 08-037 and Application of a Child With A Disability Appeal 10-067, pg. 9, n. 9.

II. Overview

This is a claim for three years of Special Education Teacher Support Services (SETSS) and various related services governed by two separate IESPs. (Ex.s B & E) The mandate on each IESP is the same^[1]. Neither the Parent nor the District contest the propriety of the recommendations.

The complaint notice is a hybrid in the sense that the Parent seeks payment for services obtained pursuant to an IESP for the 2020-2021 School Year. (SY) This portion of the claim follows the rubric of a “reimbursement” claim. A board of education may be required to reimburse parents for their expenditures for private education services obtained for a student by his or her parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1993); Sch. Comm. Of Burlington v. Dep’t. of Educ., 471 U.S. 359, 369-70 (1985). The analytical framework for deciding a reimbursement case is typically called a three-prong analysis. (See, SRO 21-025 for application of this framework to the scenario of an Individual Education Service Plan (IESP))

The case is also plead in the alternative and lays claim to “compensatory education” for the 3 school years at issue (2018-2019, 2019-2020, and 2020-2021 SYs). 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].

In this decision I dismiss the claim related to the 2018-2019 SY based on the principles of res judicata, I issue a compensatory education award for the 2019-2020 and the 2020-2021 SYs. Finally, I dismiss the reimbursement claim for the 2020-2021 SY as abandoned.

Parent’s Position The Parent alleges the District failed to implement their own recommendations for SETSS and related services during the 2018-2019, 2019-2020 and 2020-2021 school years (SYs). (Ex. A-2) The Parent therefore seeks compensatory services at the “prevailing rate” for any mandated SETSS that were not provided during the 2018-2019, 2019-2020, and 2020-2021 SYs. (Ex. A-3)

District’s Position The District submitted a single document, but they did not call any witnesses. They did rely on a defense of a prior action that resolved all issues for the 2018-2019 SY. They also assert that the SY at the Private School is 36 weeks not 40 as suggested by the Parent. Finally, the District raised a general equitable defense that they were not notified of the Parents position until very late, and when they were notified, the District took prompt action to provide the recommended services.

Student History

On September 27, 2018, the CSE convened, and classified the Student with a learning disability^[2]. They also created an IESP recommending SETSS and related services (Ex. E-1) A similar meeting was held on January 11, 2021 with a similar result. (Ex. B-1) The Student shows strength in math and enjoys reading books. (Ex. B-1) However, the Student struggles in many other academic and social/emotional areas and requires a lot of extra assistance. (Ex. D-1)

Background of the Case The relevant Placement Recommendations indicate that the “Student is Parentally Place in a Non-Public School”. (Ex. E-8 & B-9) The Parent utilized the District’s online resources to locate a SETSS provider, but the providers they contacted were unable to service the Student. (Ex. A-2) On April 8, 2021, the Parent sent the District a ten-day notice informing them of his intent to unilaterally seek services and secure reimbursement from the District. (Ex. C-1)

Legal Overview

When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an individualized education services program (IESP) under the State's so-called "dual enrollment" statute (see Educ. Law § 3602-c). The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482), 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 § 4402; see 20 U.S.C. § 1414 [d][1][A]-[B]; 34 CFR 300.320, 300.321; 8 NYCRR 200.3, 200.4[d][2]). If disputes occur 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 the IDEA (Educ. Law § 3602-c[2][b][1]). Incorporated among the procedural protections of the IDEA and the analogous State law provisions is the opportunity to engage in mediation, present State complaints, and initiate an impartial due process hearing (20 U.S.C. §§ 1221e-3, 1415[e]-[f]; Educ. Law § 4404[1]; 34 CFR 300.151-300.152, 300.506, 300.511; 8 NYCRR 200.5[h]-[l]). SRO 21-176 The IDEA is a comprehensive statutory framework established by Congress to aid the states in providing disabled children with a free appropriate public education (“FAPE”). 20 U.S.C. § 612(a)(I). “A [FAPE] is available to all children with disabilities residing in the state between the ages of 3 and 21.” 20 U.S.C. § 612(a)(1)(A). The IDEA defines a FAPE as special education and related services that:

• • (A) have been provided at public expense, under public supervision and direction, and without charge,
• • (B) meet the standards of the state educational agency,
• • (C) include an appropriate preschool, elementary, or secondary school education in the state involved, and
• • (D) are provided in conformity with the individualized education program required under § 614(d) of this title. 20 U.S.C. § 601(9).^[3]

A FAPE is crafted through the collaboration of the disabled student’s parents, teachers, and school district administrators and is recorded in an IEP. 20 U.S.C. § 614(d). The “core of the statute … is the cooperative process that [IDEA] establishes between parents and schools.” Schaffer v. Weast, 546 U.S. 49, 53 (2005). The IEP is, in brief, a comprehensive statement of the educational needs of a disabled child and the specially designed instruction and related services to be employed to meet those needs. 20 U.S.C. § 601(14). In New York State, the IEP is produced by a committee on special education (“CSE”), whose members are appointed by the board of education or trustees of the school district. N.Y. Educ. Law § 4402(1)(b)(1) (McKinney Supp. 2005).

The IDEA provides numerous procedural safeguards to protect the due process rights of disabled children and their parents. See generally 20 U.S.C. § 615. These procedures include the opportunity for parents to obtain an independent educational evaluation of the child (20 U.S.C. § 615(b)(I)) and file a complaint with the state or local educational agency (20 U.S.C. § 615(b)(6)). Any such complaint is resolved through an “impartial due process hearing” in which parents of disabled children have “an opportunity to present complaints with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a [FAPE] to such child.” 20 U.S.C. § 615(b)(6). Parties to an administrative proceeding under the IDEA have the right to written findings of fact and decisions on any complaint about the provision of a FAPE. Polera v. Board of Education Newburgh, 288 F.3d 478, 482 (2nd Cir. 2002).

In New York State, “[t]he board of education or trustees of the school district or the state agency responsible for providing education to students with disabilities shall have the burden of proof, including the burden of persuasion and burden of production, in any such impartial hearing …” N.Y. Educ. Law § 4404 (1)(c), modifying the rule enunciated in Schaffer where “[t]he burden of persuasion in an administrative hearing challenging an IEP is on the party seeking relief.” Schaffer, 546 U.S. at 537.

Res Judicata In this case the defense of claim preclusion was raised by the advocate for the District. In furtherance of such claim a Finding of Fact and Decision was admitted into the record (Ex. 1). Specifically related to case 179903 written by IHO Farago on June 10, 2019. That decision relates to the same Student and the same time period of the 2018-2019 SY.

The law surrounding the issue is succinctly recounted in SRO decision 21-215:

It is well-established that the doctrine of res judicata and the related doctrine of collateral estoppel apply to administrative proceedings when the agency acts in a judicial capacity (see K.C. v. Chappaqua Cent. Sch. Dist., 2017 WL 2417019, at *6 [S.D.N.Y. June 2, 2017]; K.B. v. Pearl River Union Free Sch. Dist., 2012 WL 234392, at *5 [S.D.N.Y. Jan. 13, 2012]; Schreiber v. E. Ramapo Cent. Sch. Dist., 700 F. Supp. 2d 529, 554-55 [S.D.N.Y. 2010]; Grenon v. Taconic Hills Cent. Sch. Dist., 2006 WL 3751450, at *6 [N.D.N.Y. Dec. 19. 2006]). The doctrine of res judicata (or claim preclusion) "precludes parties from relitigating issues that were or could have been raised in a prior proceeding" (K.B., 2012 WL 234392, at *4; see Perez v. Danbury Hosp., 347 F.3d 419, 426 [2d Cir. 2003]; Murphy v. Gallagher, 761 F.2d 878, 879 [2d Cir. 1985]; Grenon, 2006 WL 3751450, at *6). Res judicata applies when: (1) the prior proceeding involved an adjudication on the merits; (2) the prior proceeding involved the same parties or those in privity with the parties; and (3) the claims alleged in the subsequent action were, or could have been, raised in the prior proceeding (see K.B., 2012 WL 234392, at *4; Grenon, 2006 WL 3751450, at *6). Claims that could have been raised are described as those that "emerge from the same 'nucleus of operative fact' as any claim actually asserted" in the prior adjudication (Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 517 Fed. App'x 11, 12 [2d Cir. Apr. 1, 2013]).

As to the first two elements, there is no dispute that proceeding I involved an adjudication on the merits of the 2018-2019 SY and that proceeding I involved the same parties as proceeding II. Turning to the third element of res judicata, i.e., whether the claims in proceeding II were or could have been raised in proceeding I, the claims raised in this proceeding relate to the District's provision of educational services to the student as part of what the District previously agreed to provide. Additionally, the "consolidation of multiple issues into a single complaint where such issues are known at the time of the filing of the initial complaint" are encouraged (Due Process Procedures for Parents and Children, 70 Fed. Reg. 35782 [June 21, 2005]). Accordingly, I dismiss the claim for the 2018-2019 SY based upon principles of res judicata.

III. Compensatory Education: What is the Appropriate Remedy for Denial of a FAPE?

Compensatory Education Legal Standard

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. v. 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]).

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 Educ., 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 "[a]ppropriate 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 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]ompensatory 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. v. Puyallup Sch. Dist. 31 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.

Analysis

Parent Testimony The Parent testified by affidavit that he was unable to locate a SETSS provider for the Student, and that the District did not make any SETSS providers available for the Student. (Ex. D-2) The Parent also said that he was unable to locate Counselling Services, Occupational Therapy, or Physical Therapy providers for the Student, and that the District did not make any of these providers available. (Ex. D-2)

As a result, the Parent said that the Student did not receive SETTS, Occupational Therapy, Physical Therapy or Counseling for the entire 2019-2020 SY, and from September 1, 2020 to April 9, 2021. The actual quantity of service missed is not documented in the record. There is no attendance records for example. There is also no class schedule for the Private School. Counsel for the Parent argues that the relevant time period is 40 weeks/year while the District Advocate argues that it is actually 36 weeks/year. Given the absence of information one way or the other, I will adopt the allegation of the Parents and define the period of loss as described in the complaint notice. That would mean forty weeks of services for the 2019-2020 SY and approximately 32 weeks of services for the 2020-2021 SY, or 72 weeks of missed services in total.

Prevailing Rate v. Market Rate In this type of case before me, where the parties agree regarding services to be delivered, but the Parents cannot find a District provider, there are myriad variables that influence the 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^[4], 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.

Concluding Remarks and Rationale for Reducing the Award

I have reduced the requested award regarding compensatory education from 72 weeks of missed services to 60 weeks of missed services, for two reasons:

• • I am confident that going forward the Student will be receiving the appropriate services so that he may continue to benefit in the educational environment of his Parents’ choosing.
• • I recognize there are a finite number of hours per week, and the demands of the Student’s school year along with significant hours of additional services, 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 as follows:

• • The District shall create a bank^[5] of:
• • Three Hundred (300) hours of Special Education Teacher Support Services to be delivered in the REDACTED Language;
• • Sixty (60) hours of Counseling services delivered in the REDACTED Language paid by related service authorizations;
• • Sixty (60) hours of Occupational Therapy services paid by related service authorizations; and
• • Sixty (60) hours of Physical Therapy services paid by related service authorizations.^[6]

Dated: January 8, 2022

So Ordered,

• • ____________________
• • Martin J. Kehoe III, 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.

Footnotes

[1] SETSS – Direct and Group Service in REDACTED, 5x week; Counselling Services – Individual Service in Yiddish, 1x30 minutes per week; Counselling Services – Group Service in Yiddish, 1x30 minutes per week; Occupational Therapy – Individual Service in English, 2x30 minutes per week; and Physical Therapy – Individual Service in English, 2x30 minutes per week. (Ex.s B& E)

[2] NYCRR Part 200.1(zz)(6) Learning Disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural or economic disadvantage.

[3] “Special education” is defined by the IDEA as specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. The term “related services” is defined as transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that such medical services shall be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. 20 U.S.C. § 601(26).

[4] 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 a 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).

[5] The District must pay a provider(s) of the Parents’ choosing at a market rate, at the time the services are provided, to be determined by the “implementation unit” of the District, in consultation with the Parents and/or their provider(s).

[6] All of these services are provided as compensatory education for deprivations that occurred during the period beginning September 1, 2019- April 9, 2021. These services are to be utilized at the discretion of the Parents and providers of the Parents’ choice within two (2) years of the date of this order or such services shall be forfeited.