New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Student’s Name: REEDACTED

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

Date of Hearing: JULY 6, 2022

Record Close Date: JULY 15, 2022

Hearing Officer: Marcel P. Denis, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 31, 2022

For the Student:

REDACTED, Attorney

REDACTED, Parent

For the Department of Education:

REDACTED, District Representative

INTRODUCTION

On September 3, 2021, the parent (the “Parent”) of REDACTED (the “Student”) filed a due process complaint under the Individuals with Disabilities Education Act (the “IDEA”) [20 U.S.C. section 1415(f)] and Section 4404(1) of the New York State Education Law against the New York City Department of Education (the “DOE”) under case number 214789, which was amended on March 31, 2022. I was appointed as impartial hearing officer (“IHO”) in that proceeding on January 15, 2022. Hearings went forward in this case on multiple dates.

A list of documentary evidence submitted in this proceeding is appended to this Order. The compliance date for issuing a decision in this proceeding has been extended.

BACKGROUND AND POSITIONS OF THE PARTIES

REDACTED is classified with a Speech-Language Impairment (Parent Ex. B). The within proceeding pertains to the Parent’s request for enhanced rate Special Education Teacher Support Services (SETSS) for the 2021-2022 school year. The Student’s Individualized Educational Service Plan (“IESP”) dated April 9, 2019, mandates that the Student receives three (3) periods of SETSS per week in Yiddish, group; Speech-Language Therapy twice (2) a week in Yiddish for 30 minutes, individually; Occupational Therapy twice (2) a week in English for 30 minutes, individually; and a Full time daily Paraprofessional, individually (P-Ex D). On April 19, 2021, the Parents wrote the DOE to request an increase in SETSS. The DOE convened a CSE IESP meeting on May 25, 2022 in which they increased the Student’s SETSS from three (3) to seven (7). The May 25, 2022 IESP mandates that the Student receives five (5) periods of SETSS per week in Yiddish, group, separate location; two (2) periods of SETSS in Yiddish, group, general education classroom; and a Part time daily paraprofessional, group (Parent Ex. E). The Parents argued that the Student is entitled to a bank of compensatory hours for the four (4) hours increased in SETSS as of the date of the request (Tr. 37-38). The Parents maintain that but for the DOE’s failure to treat the request with the necessary expediency, the Student’s services would have been increased since the year of 2021, when the request was made. The Parents further maintain that the Student needs to receive SETSS hours at the enhanced rate of $175.00 per hour and the paraprofessional at the enhanced rate of $65 per hour (P-Ex. G, Tr. 39). The DOE did not contest the Parents’ factual allegations or legal conclusions. The DOE did appear but did not defend or object to the hourly rate sought by the Parent (Tr. 35). Therefore, the Parents’ request was unopposed.

The Parents submitted a documentary evidence package, including affidavit testimony. The DOE did not submit a documentary evidence package or present testimony in this case. The Parents requested that the decision be rendered based upon their representations and the documentary evidence.

FINDINGS OF FACT AND DECISION

The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 [d][1][A]. A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). In order to meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. Mar 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student’s IEP.

This case involves a parentally placed student with an Individualized Educational Service Plan (“IESP”) as opposed to an individualized Education Program (“IEP”). Under the provisions of section 3602-c, students with disabilities placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IEP from the public school district in which the nonpublic school is located while they receive general education from the nonpublic school where their parents enrolled them (See also 34 CFR 300.130 and 300.145-147). The IEP must be developed in the manner required by the IDEA. School districts are required to provide special education services pursuant to the IEP. Such services must be provided on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Per a New York State Education Department guidance document:

The term “equitable basis” means that special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district.

The new State legislation is intended to maintain the level of services provided to NYS nonpublic students with disabilities through IEPs...

Accordingly, parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public-school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program. A nonpublic student may not be denied services that a public-school student would receive based solely upon his or her status as a nonpublic student... Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Attachment 1,

September 2007

School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). Since this proceeding does not involve a tuition reimbursement claim, the DOE has the burden of proof on all IDEA issues.

COMPENSATORY SERVICES

The purpose of an award of compensatory educational services or additional services is to provide an appropriate remedy for a denial of a FAPE (see E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 [2d Cir. 2014]. 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., 31F.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"]; Application of the Dep't of Educ., Appeal No. 11-075; Application of a Student with a Disability, Appeal No. 10- 052). 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 so as to "appropriately address[] the problems with the IEP"]; S.A. v. New York City Dep't of Educ., 2014 WL 1311761, at *7 [E.D.N.Y. Mar. 30, 2014] [noting that compensatory education "serves to compensate a student who was actually educated under an inadequate IEP and to catch-up the student to where he [or she] should have been absent the denial of a FAPE"] [internal quotations and citation omitted]; 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 [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"]; Puyallup, 31 F.3d at 1497 [finding "[t]here is no obligation to provide a day-for-day compensation for time missed"]; Application of a Student with a Disability, Appeal No. 13-168; Application of the Dep't of Educ., Appeal No.12- 135; Application of the Dep't of Educ., Appeal No. 11-132; Application of a Student with a Disability, Appeal No. 11-091).

Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996) (holding generally that subject to equitable adjustment, the “child is entitled to compensatory education for a period equal to the period of deprivation, excluding only the time reasonably required for the school district to rectify the problem.”). Under the qualitative approach, the examination should focus on the child’s needs; “some students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Analysis

There is no dispute about the Student’s entitlement to receive the increased hours of four (4) hours per week of SETSS and the part time paraprofessional. Nor is there any dispute regarding the Parents’ ability to find a SETSS provider and a paraprofessional provider who would accept the $175 and $65 enhanced rate per hour respectively or about the reasonableness of the hourly enhanced rates. But for the Parent having been able to make arrangements for the enhanced rate SETSS and paraprofessional services, the Student would not have received any SETSS and paraprofessional services during the 2021-2022 school year. Therefore, the Parents are entitled to the relief sought.

ORDER

IT IS HEREBY ORDERED that the DOE is directed to provide the Student with the following services as compensatory education for the failure to provide the Student with a FAPE for the 2021-2022 school year at the enhanced hourly rate of $175 for the SETSS and $65 for the paraprofessional services, which may be provided during the school year or during the summer, on weekdays, weekends, on holidays, or during school vacations, by issuing payment directly to the provider upon the submission of invoices for services rendered:

• • 160 hours of SETSS, based on a 40-week period during the 2021-2022 school year; and
• • 30 hours of part time paraprofessional, based on a 6-week period during the 2021-2022 school year.

IT IS SO ORDERED.

Dated: July 18, 2022

MARCEL P. DENIS

Impartial Hearing Officer

DOCUMENTS ENTERED INTO THE RECORD

Parent Exhibits Description Date Page #

• • Increased Letter 04/19/2021 1
• • Due Process Complaint 09/03/2021 6
• • Amended Due Process Complaint 03/31/2022 2
• • IESP 04/09/2019 1
• • IESP 05/25/2022 1
• • Outreach Numerous Dates 1
• • REDACTED Contract 08/26/2021 1
• • DOE email Stream Numerous Dates 9
• • Progress Report 12/15/2021 3 DOE Exhibits

N/A

IHO Exhibits

I Extension Orders Multiple dates 4

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.