New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 562437 - NYC: 218277

FINDINGS OF FACT AND DECISION

Case Number: 218277

Student’s Name: [REDACTED]

(hereinafter referred to as “Student”)

Student’s Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: [REDACTED]

(hereinafter referred to as “Parent”)

Hearing Date: September 30, 2022

Record Close Date: October 20, 2022

Hearing Officer: Natasha Pierre

This hearing matter comes before the undersigned Hearing Officer on remand by State Review Decision No. 21-240. A due process complaint (“DPC”) was filed by the Parent on September 23, 2021. This Impartial Hearing Officer (“IHO”) issued a Findings of Fact and Decision (“FOFD”) on November 10, 2021. The District filed an appeal, and the matter was remanded for this IHO to reconvene the impartial hearing and make a determination on the issue of compensatory education award. Hearings went forward on March 10, 2022, April 12, 2022, April 22, 2022, May 26, 2022, June 3, 2022, June 23, 2022, September 20, 2022; and September 30, 2022.

The District was represented by [REDACTED], Esq. The Parent, [REDACTED] (hereinafter the “Parent”), was represented by [REDACTED], Esq.

The District submitted a documentary evidence package and did not present any witness testimony.

The Parent submitted a documentary evidence package, which included the affidavit testimony of one witness: [REDACTED], Ph.D. The witness testified on cross-examination.

Although only portions of the evidence are referenced herein, the testimony and documents were reviewed fully.

BACKGROUND AND POSITIONS OF THE PARTIES

[REDACTED] (hereinafter referred to as the “Student”) is a [REDACTED] and is well-known by the Committee on Special Education (CSE) as he has had an individualized education program (IEP) since 2010. The Student has diagnoses of attention deficit disorder, attention deficit hyperactivity disorder (ADHD), unspecified anxiety disorder, oppositional defiant disorder, and unspecified/ major depressive disorder. While the Student’s IQ is in the superior to the very superior range, he has a long history of mental health concerns, emotional instability, and behavioral problems resulting in academic difficulties, school absenteeism, elopement, and suspension (Parent Ex. A, B).

In its DPC dated September 23, 2021, the Parent alleged that the New York City Department of Education (hereinafter “District”) denied the Student a free appropriate public education (FAPE) during the 2019-2020, 2020-2021, and 2021-2022 school years. In the decision dated November 10, 2021, this IHO found that the District had denied the Student a FAPE for the 2019-2020, 2020-2021, and 2021-2022 school years. As relief for the 2021-2022 school year, this IHO ordered that the District reimburse and/or fund the cost of the Student’s tuition at the [REDACTED] for the 2021-2022 school year for a maximum of 100 days; that at the completion of the program the District fund a 12-month residential placement for the Student for the remainder of the 2021-2022 school year; that the District fund transportation to and from the program; and that the District fund the Parent’s roundtrip transportation to and from the program for three parent visits. This IHO tolled the statute of limitations for compensatory service claims associated with the 2019-2020 and 2020-2021 school years (IHO Exhibit 1).

The District appealed the IHO’s decision on the issue of tolling the statute of limitations. The State Review Officer found the IHO’s decision improper and remanded the matter for reconsideration of the Parent’s compensatory education claim to remedy the denial of FAPE for the 2019-2020 and 2020-2021 school years (IHO Exhibit 2).

As a compensatory education award, the Parent seeks prospective funding for a program called [REDACTED] (hereinafter the “Program”), which would help the Student transition back to his home and community upon completing his current residential stay. The Parent asserts that the Program specifically focuses on children like the Student who have been in intensive placements, including wilderness programs, and need help transitioning from such non-traditional controlled placements. The Parent asserts that the Program is designed to help the Student overcome the risk of regression that he faces, given his range of needs and profile. (Tr. 183-184).

The District contends that funding the Program would be deemed prospective tuition without a separate due process complaint (Tr. 186)); that the Program is not educational in nature Tr. 220); the placement at [REDACTED] should serve as a compensatory award for the denial of FAPE for the 2019-2020 and 2020-2021 school years (Tr. 229).

CONCLUSIONS OF LAW AND DECISION

Compensatory education is an appropriate remedy under the IDEA. P. v. Newington, 546 F.3d. 111 (2nd Cir. 2008). The aim of compensatory education services is 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, Reid v. District of Columbia, 401 F.3d 516, 518 (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 …mold each decree to the necessities of the particular case”). When fashioning a compensatory award, it is appropriate to look at the specific educational deficits resulting from a child’s loss of FAPE, in order to ascertain what compensatory measures are appropriate to make the child whole. Id.; Mrs. C. v. Wheaton, 916 F.2d 69 (2d Cir. 1990).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case. See, Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997); SRO Appeal 14-179. Within the Second Circuit, compensatory relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a M-11 12 FAPE. See, Newington, 546 F.3d at 123 ("[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]"). Likewise, SROs have awarded compensatory "additional services" to students who have been denied appropriate services, if such deprivation can be remedied through the provision of additional services before the student becomes ineligible for special instruction by reason of age or graduation. See, 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); see also, Application of the Dep't of Educ., Appeal No. 13-048; Application of a Student with a Disability, Appeal No. 11-091). The purpose of an award of additional services, like compensatory services, is to provide an appropriate remedy for a denial of a FAPE and, accordingly, 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, supra.

Compensatory education awards are based upon finding of the denial of FAPE, and they require additional services, beyond the prospective entitlement to an appropriate educational program, to address deficits caused by delay or failure to offer educational services to an eligible child.” Terry Jean Seligmann & Perry A. Zirkel, Compensatory Education for IDEA Violations: The Silly Putty of Remedies?, 45 Urb. Law. 281, 282 (Winter 2013) (citing Perry A. Zirkel, The Remedial Authority of Hearing and Review Officers under the Individuals with Disabilities Education Act: An Update, 31 J. Nat’l Ass’n Admin. L. Judiciary 1 (2011)). For a child who has been denied an appropriate education for a protracted period of time, including the time during which the matter is litigated, prospective placement without a compensatory remedy is analogous to an “empty victory.” Id. at 296 (noting that parents with the financial means to do so can avoid this harm if they are able to unilaterally place their child or provide services privately and then seek reimbursement). “One court concisely captured the essence of the compensatory education remedy, holding that ‘compensatory education’ involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period to provide a FAPE to a student.” Id. (citing G. v. Ft. Bragg Indep. Sch., 343 F.3d 295, 309 (4th Cir. 2003)); see also SRO 14-014, at p. 11-12 (distinguishing between a hearing officer’s order for occupational therapy services in the student’s new IEP as “prospective relief” and his order for compensatory occupational therapy, which the SRO found “constitutes a remedy which is retroactive relief designed to compensate the student for the district's failure to offer her a FAPE,” and rejecting the DOE’s argument that the remedies were duplicative). Within the Second Circuit, compensatory education relief in the form of supplemental special education or related services has been awarded to students if there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008) ("[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]”).

“[I]t is well settled that compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case.” SRO 10-052, at p. 15 (citing Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997)). Compensatory education awards can generally be crafted pursuant to two schools of thought: a quantitative approach and a qualitative approach. Under the quantitative approach, courts examine the amount of time 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 Reg. Sch. Dist., 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 focuses 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 a FAPE and “specific compensatory measures” designed to “correct those deficits.” Id. at 526.

A board of education may be required to pay for compensatory educational services obtained for a child by the child's parent if the services offered by the board of education were inadequate or inappropriate, the services selected by the parent were appropriate, and equitable considerations support the parent's claim. (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7 [1993]; see also Frank G. and Dianne G. v. Bd. of Educ. of Hyde Park,459 F.3d 356 [2d Cir. 2006], cert denied, Board of Educ. of Hyde Park Cent. School Dist. v. Frank G.,2007 WL 2982269 [Oct. 15, 2007].

Based on the Parent’s documentary evidence and the testimony of the Parent’s witness, the Parent’s requests that the District fund a program that would help the Student transition from an intensive residential program back to his community and reduce the risk of regression and relapse constitutes an appropriate compensatory award for the two-year FAPE deprivation; 2019-2020 and 2020-2021 school years. For two years, the District evaded its obligations and disregarded the Student’s grave needs and the Parent’s desperate cry for help. It was the District’s serious failures and past deprivations that resulted in the Student needing to be in such a restrictive environment. The District is responsible for helping the Student transition back into a less controlled home and community setting. The District’s assertions that the Parent’s request is a form of prospective tuition is not supported by the record. The services that the Program offers are similar to Home-based Applied Behavioral Analysis (ABA) services that have been awarded countless times to Students as a form of compensatory award.

ORDER

Based upon the findings of fact and conclusions of law herein, it is this 3rd day of November 2022 hereby:

ORDERED that the Parent’s claim for a compensatory award for District’s FAPE deprivation for the 2019-2020 and 2020-2021, is granted; and

IT IS FURTHER ORDERED that the District shall fund [REDACTED[ program as per the [REDACTED] Agreement marked as Parent Exhibit CC; and

IT IS FURTHER ORDERED that the District shall directly fund any applicable travel expenses associated with [REDACTED] in-home workshops, which may consist of airfare, lodging, car rental, airport park/mileage and a flat fee of $140.00 to cover meals.

.

Dated: November 3, 2022

SO ORDERED

___________________________

Natasha Pierre

Impartial Hearing Officer

IHO

Exhibit Document Description Date Pages

1 /10/2021 18

2 SRO Decision No. 21-240 2/2/2022 29

District

Exhibit Document Description Date Pages

1 IEP 6/14/19 20

2 Prior Written Notice 6/18/19 4

3 Social History 3/26/2020 3

4 Discharge Summary/Service Plan 6 4/13/2020 6

5 Psychological Evaluation 6 4/13/2020 6

6 iReady ELA 2 4/22/2020 2

7 Educational School Assessment 3 5/4/2020 3

8 IEP 6/5/2020 22

9 Prior Written Notice (Notice of

Recommendation) & School Location Letter 6/19/2020 6

10 Teacher Report 2/5/2021 2

11 Parent Letter 2/24/2021 2

12 Consent for Testing 2/25/2021 1

13 Social History Update 3/1/2021 2

14 Meeting Notice Committee on Special 3/3/2021 3

Education 3

15 IEP 3/17/2021 22

16 Prior Written Notice (Notice of

Recommendation) & Interim School

Location Letter 3/23/2021 7

17 Prior Written Notice (Notice of

Recommendation) 3/23/2021 4

Parent Exhibit

NUMBER

DATE

DOCUMENT

No. Of Pages

A 9/23/21 Hearing Request 10

B 6/1/20 Psychological Evaluation 6

C 9/26/20 Email from [REDACTED] Education Administrator: Medical Records 2

D 1/8/21 Email from [REDACTED] Social Worker 1

E Various Dates Forwarded Correspondence between [REDACTED] Supervisor and [REDACTED] Education Administrator: Case Transfer 6

F 2/11/21 Correspondence with School Psychologist: Meeting Inquiry and Request for Educational Reports 2

G 6/10/21 Letter to [REDACTED] Social Worker: Field Trip Incident 1

H 7/22/21 The [REDACTED] Report Card 1

I 8/4/21 [REDACTED] Health Treatment Summary and Recommendations 4 J 8/9/21 Email to CSE: [REDACTED] Health Treatment Summary and Recommendations 2 K 10/8/21 Email from [REDACTED] Social Worker: Scheduling Meeting for School Refusal Concerns 1 L 10/15/21 [REDACTED]: Estimate for Intervention/Transport Service 3 M 10/15/21 [REDACTED] Email to Parent: Estimate and E-Sign Documents 3

N 10/19/21 [REDACTED] Acceptance Letter 1

O 5/24/22 Hearing Request- Withdrawn 12

P 2/14/22 Consent for Additional Assessments-Withdrawn 1

Q 3/16/22 Psychological Assessment 24

R 4/14/22 [REDACTED] Psychiatric Evaluation-Withdrawn 3

S 4/25/22 Email to CSE: Submission of Psychological Assessment and Psychiatric Evaluation-Withdrawn 1

T 5/4/22 [REDACTED] Single Placement Agreement 3

U 5/4/22 [REDACTED] Enrollment Verification Letter 1

V 5/6/22 Ten Day Notice-Withdrawn 2

W 5/26/22 [REDACTED] Program Description -Withdrawn 2 X 5/27/22 Estimate for Intervention/Transport Service-Withdrawn 2 Y 5/27/22 Estimate for Intervention/Transport Service 3

Z Undated [REDACTED] Fee Structure-Withdrawn 1

AA Undated Affidavit of Testimony: [REDACTED] 3

BB 9/9/22 Recommendation Letter from [REDACTED] Clinical Team 2

CC Undated [REDACTED] Payment Agreement 2

DD 9/15/22 Affidavit of Testimony: [REDACTED] 6

• • 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.