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CASE NUMBER:565711 - NYC: 221104
FINDINGS OF FACT AND DECISION
Case Number: 221104
Student’s Name[1]: REDACTED (“Student”)
Date of Birth: REDACTED
School District: REDACTED
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: November 8, 2021
Date(s) of Hearing: April 7, 2021, May 11, 2022, July 11, 2022, July 25, 2022, September 20, 2022
Actual Record Closed Date: November 9, 2022
Date of Decision: November 9, 2022
Hearing Officer: Stephanie Seto, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 7, 2022
For the Student:
REDACTED, J.D., Law Clerk, Law Office of REDACTED
For the Department of Education:
NONE
NAMES AND TITLES OF PERSONS WHO APPEARED ON MAY 11, 2022
For the Student:
NONE
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 11, 2022
For the Student:
REDACTED, Law Office of REDACTED
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON JULY 25, 2022
For the Student:
REDACTED, Esq.
For the Department of Education:
REDACTED, District Representative
NAMES AND TITLES OF PERSONS WHO APPEARED ON SEPTEMBER 20, 2022
For the Student:
REDACTED, Esq.
REDACTED, Parent
For the Department of Education:
REDACTED, District Representative
INTRODUCTION, BACKGROUND AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about November 8, 2021. (P Ex. A)1. On March 29, 2022, I was appointed the Impartial Hearing Officer ("IHO") to conduct an impartial hearing pursuant to the DPC alleges the New York City Department of Education (the “District” or “DOE”) failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. section 1415, et seq.), Sections 4404(1) and 3602-c of the New York State Education Law (NYS “dual enrollment statute”) and attendant Federal and New York State Regulations against, concerning a dispute between Parent of Student, a disabled Student with the classification of learning disability, and the New York City Department of Education (the "DOE" or “District”) regarding a claim for compensatory education for mandated Special Education Teacher Support Services (“SETSS”) and other services for the 2021-2022 school year pursuant to an services mandated in an Individual Educational Services Plan (IESP) due to District’s failure to implement services and thereby deny Student FAPE.
The due process complaint dated November 8, 2021 (“DPC”)(Exhibit P-A) alleged denial of fair and appropriate education (FAPE) during the 2021-2022 school year due to the failure to convene a new IEP meeting and failure to implement any services under Student’s prior IESP dated February 28, 2020 (“2020 IESP”). P Ex. A-2 and B. The DPC seeks an order of pendency and that the District fund and provide services for the 2021-2022 school year pursuant to the 2020 IESP at the providers’ prevailing rate and compensatory education in makeup sessions for the mandated SETSS and related services Student did not receive due to the DOE’s failure to arrange for the recommended SETSS and related services. P Ex. A-2. At the hearing on June 1, 2021, Parent’s counsel clarified Parent was only seeking relief under paragraph 4 of Parent’s proposed resolution in the DPC, i.e., an order that the DOE fund a bank of 200 periods of SETSS to compensate for the lack of SETSS services for the 2019-2020 school year. Tr. 27-28. Parent’s counsel clarified that the Parent was not seeking the compensatory services requested in the DPC for counseling and speech and language therapy for the 2018-2019 and 2019-2020 school years. Tr. 27-28; P Ex. A-4.
On April 7, 2022, a pendency hearing was held in which a representative from Parent’s counsel’s office, REDACTED (“REDACTED”) appeared and District did not appear. Tr. 1-3. A pendency order was issued on April 13, 2022, granting pendency retroactive to November 8, 2021 based upon the 2020 IESP as follows: Special Education Teacher Support Services (SETSS) Direct Group Service three (3) periods per week, Speech and Language Therapy 1:1 twice (2) a week for thirty minutes and Counseling Services, group service, once (1) a week for thirty minutes. P-Ex. B-6.
On May 11, 2022, a status conference was held in which the District appeared but on the same date Parent’s counsel indicated they could not appear. At the status conference, District’s Representative informed the IHO that Parent’s counsel had been sent a Resolution Agreement on February 14, 2022. Tr.10.
On July 11, 2022, a status conference was held in which REDACTED and REDACTED (“REDACTED”), District Representative, appeared. Tr. 14. REDACTED reported that Parent had considered resolution but needed a “bank of compensatory hours” and requested a merits hearing. Tr. 16. REDACTED indicated Student’s services began in November of 2021 and compensatory SETTS from September through November 8, 2021 is sought. Tr. 17-21. REDACTED represented the resolution offered in February of 2022 covered SETTS from the period from the period of September 1, 2021 through June 30, 2022 forward, RSAs for Speech and Language therapy (“S/L T”)” had been issued and had not heard back from Parent’s counsel. Tr. 16-30. REDACTED clarified that Parent sought a merits hearing seeking relief of a bank of hours of compensatory SETTS from the beginning of September through November 8, 2021 and S/L T of which there was an “extended period” missed to be used over the next two years. Tr. 21-24. (There was no discussion of Student’s counseling mandate). Neither party was clear if S/L T had been part of the resolution agreement offered by the District in February and the resolution agreement had never been discussed between the parties, therefore, the parties were given a short period of time to reexamine the possibility of resolution. Tr. 16-34.
On July 25, 2022 another status conference was held in which Philippe REDACTED, Esq. (“REDACTED”) appeared for Parent and REDACTED (“REDACTED”), District Representative, appeared. Tr. 39. REDACTED stated Parent wanted to move forward with the hearing on the merits to seek a bank of compensatory hours corresponding to missed but “mandated” services missed with the presentation of Parent (Mother) as witness; at the time of the conference, REDACTED could not state the bank of services that would be requested but would provide an affidavit with the number of weeks that were missed, and the number of hours sought. Tr. 40-42. District asserted they would most likely have one witness and present a direct case. Tr. 42-43.
The hearing on the merits was held on September 20, 2022. REDACTED appeared for Parent and REDACTED for District. Tr. 47. Parent did not offer any additional exhibits, beyond the exhibits already entered in the pendency hearing (P Ex. A DPC; P Ex. B, 2020 IESP; and P Ex. CTDN, Tr. 3-4), except for Exhibit D an unsworn affidavit of Parent, sworn to on the record. Tr. 65.
The District cross examined Parent REDACTED, (“mother” or “Parent”) and no other witnesses were offered by Parent or District. Tr. 50-51. The District did not present a direct case with any witnesses or present evidence. No written closing statements were submitted.
District’s Position The District’s position was an “RSA” were provided to Parent for S/L T and Counseling from September 1, 2021 onward and it was “up to the agencies to arrange with the parent and school” as to the S/L T and counseling services and it was “unclear” the Parent could not find a provider and did not contact the District regarding a need for a provider. Tr. 51-52.[2] Secondly, any bank of compensatory hours should be limited by the fact that the missed sessions should be calculated based upon the amount of SETTS or related services Student was entitled to in a 180-day school year per N.Y.S L. §§ 3604(7) and the NYS Ed. Regulation 8 NYS CRR § 175.5. Tr. 52-53. District asserts if compensatory hours are awarded Student was entitled to 3 periods of SETTS mandated in the 2020 IESP which totaled 108 sessions/periods during the 2021-2022 school year (180 days x 5=36 weeks x 3 periods = 108). Tr. 52-53, 98. Without providing evidence, the District asserted that Student received 98.75 hours of SETTS hours. Tr. 53-55. District requested any compensatory bank be limited to the total number of SETTS sessions granted be limited to those actually missed based on the total number of 108 sessions Student was entitled (here District asserted that would be 9.25 hours). Tr. 54-55, 57. As to S/L T and Counseling, the District asserted that if the IHO was to award a compensatory bank, it should be limited to the number of sessions actually missed (asserting it was not more than two or three weeks depending on the service). Tr. 59. District also asserted that Parent’s requested compensatory bank is not based upon any quantifiable amount of hours Student actually missed based upon the proof and testimony provided by Parent. Tr. 97-98. District also requested that if the compensatory services are granted, it should not be ordered at an enhanced rate but as a bank through a “P-3 Form” or a “SETTS form rate or P-3 rate.” Tr. 99.
Parent’s Position
Parent’s position that District failed to implement the 2020 IESP or create another IESP prior to the DPC, thereby denying Student a FAPE. Tr. 60-62; P Ex. A; D. The District failed to bear their burden of providing FAPE from September 1, 2021 through November 8, 2021. Tr. 100. As relief, Parent seeks a compensatory bank of services based upon the mandated services in the 2020 IESP – three periods of group SETTS, S/L T 1:1 twice a week for 30 minutes and group counseling 1x 30. Tr. 60. Parent asserts entitlement to services Parent attests and asserts as calculated based upon the number of weeks from the beginning of the school year September 1, 2021 through November 8, 2021 – totaling a request for 27 periods of SETSS, nine (9) hours of S/L T and 4.5 hours of counseling for the nine weeks missed. Tr. 60-61, 101; P Ex. D. It is requested the FOFD grant the compensatory bank with providers of Parent’s choosing at the prevailing market rate. Tr. 61;101. Parent asserts that the District did not provide proof of the length of the school year or evidence of services provided. Tr. 61. Parent also asserts it is within the IHO’s discretion to award the amount of compensatory hours requested even if the exact number of hours requested are not the exact number of hours missed and Parent only seeks to have the child made whole with make-up services. Tr. 100.
The list of documentary evidence in this proceeding is appended to this Order. The compliance date for issuing a decision in this proceeding was extended prior to my appointment, and then after that, I extended it at the parties’ request.
JURISDICTION
The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. November 8, 202§ 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and Educ law § 3602-c and implementing regulations, 8 NYCRR § 200.5 et seq.
ISSUES
ISSUES Presented:
1. Did the District Provide Student a FAPE for the 2021-2022 school year?
2. If there was a denial of FAPE, is the Student entitled to relief of Compensatory Services?
FINDINGS OF FACT
Student is a REDACTED female student attending a religious nonpublic school. P Ex. A. She was classified on her 2020 IESP as a student with a disability of speech and language impairment. (P Ex. B-1). Student’s 2020 IESP mandates SETSS Direct Group Service three (3) periods per week, Speech and Language Therapy 1:1 twice (2) a week for thirty minutes and Counseling Services, group service, once (1) a week for thirty minutes. P-Ex. B-6. The facts as set forth in the Background and Procedural History above shall be included as findings of fact herein.
Parent seeks a bank of compensatory hours for the services asserted missed. P Ex. A; Tr. 25-26. The DPC did not contain a specific amount of compensatory hours sought and prior to hearing the on the merits when Mother’s affidavit was submitted and attested to the specific number of hours and services sought was not presented to District or on the record. Tr. 1-44. Before the hearing on merits in September, Parent’s counsel generally asserted that services for September 1 through November 8, 2021 were to be sought based upon a quantitative approach or for “make up” services. Tr. 16-44.
Parent testified she could not locate SETSS, S/L T or counseling services for the Student and the District did not make any available. P Ex. D-1-2. Parent attests and asserts as calculated based upon the number of weeks from the beginning of the school year September 1, 2021 through November 8, 2021 – totaling a request for 27 periods of SETSS, nine (9) hours of S/L T and 4.5 hours of counseling for the nine weeks missed. Tr. 60-61, 101. P Ex. D.[3] 36. On cross-examination Parent was unclear about whether Student had the same counselor in 2020-2021 and 2021-2022, stating she did not remember although she acknowledged her daughter had counselor REDACTED (“REDACTED”) and REDACTED (“REDACTED”) as S/L therapy provider for the 2021-2022 school year and testified there were delays in when REDACTED and REDACTED started services in the 2021-2022 school year, although Parent not specify any time frame for when REDACTED or REDACTED began to give Student services and did not remember when she first spoke to REDACTED or REDACTED in 2021. Tr. 65-69, 74-75. Parent testified she did not remember the name of Student’s SETSS provider for the 2021-2022 school year, di not recall any progress reports and spoke with the provider maybe four times. Tr. 69-70. Parent did not know and could not testify how the compensatory service hours requested in her affidavit were calculated. Tr. 73-74. She testified she did not remember the specific dates Student missed services, when school started exactly or when they started except they did not start at the beginning of the school year and testified the bank requested it was the time Student missed getting the services. Tr. 73-75, 78.
Parent testified that REDACTED (“REDACTED”), Director of Student Services at Student’s school, informed her that before school started there may be a delay in the start of services. Tr.71-73. Parent testified REDACTED is the “point person” at Student’s school who handles oversight of special services, when they begin, how they will be implemented in the classroom or outside of class and Parent has been dealing with her since Student started receiving Special Education Services. Tr. 70-71, 80-81. Parent testified that “REDACTED” provided all services to Student, SETSS, S/L T and Counseling, she believed she signed a contract or “something” with REDACTED, and she could not remember if she or REDACTED found REDACTED. Tr. 72-73, 75, 77-78, 93. Parent also testified she did not know if the SETSS provider is an employee of Student’s school. Tr. 70. Parent did not know specifics as to whether Student received her services for SETSS and counseling in a group or 1:1, but testified she contracted directly with REDACTED whether in a group or 1:1. Tr. 81-82.
Parent testified that at the end of the 2021-2022 school year, she and Student’s teacher saw improvement although Student was still behind, but Parent did not remember or know Student’s reading grade level. Tr. 83-84. Parent testified that S/L T was for pronunciation and articulation and “we definitely saw improvement.” Tr. 85. As for counseling related issues, Parent testified Student continues to have social challenges with peers and looks forward to counseling sessions; struggled “tremendously” but by the end of the year the counselor had given Student tools to handle social situations in which she struggled that helped her “a lot.” Tr. 85-86.
The DOE presented no evidence or testimony to support it offered FAPE for the 2021-2022 school year. The DOE raised issue with Parent’s testimony that all services were provided by “REDACTED” and not just SETSS but did not provide any rebuttal witness or evidence. Tr. 91-99.
CONCLUSIONS OF LAW
New York Law Extend Educational Services to Children with Disabilities Parentally Placed in Nonpublic School Under N.Y. Ed. Law § 3602-c.
The IDEA provides children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(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). The purposes of the IDEA are (1) to ensure that students with disabilities have available to them a FAPE that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living and (2) ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § (d)(1)(A-B); See Forest G. v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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 is reasonably calculated to enable the Student to receive educational benefits. Id. 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).
The failure of a school district to provide a FAPE for a disabled student may arise out of substantively inadequate or inappropriate IEP and/or placement. Bd. Of Educ. v. Rowley, 458 U.S. at 192) and/or procedural inadequacies that (i) "impeded the student's right to a free and appropriate education," (ii) "significantly impeded parent's opportunity to participate in the decision-making process regarding a free and appropriate public education to parent's child" or (iii) "caused a deprivation of educational benefits." 8 N.Y.C.R.R. § 200.5(j)(4)(ii).
Under New York State Education Law § 3602-c (“3602-c”), unlike the provisions of the IDEA, parents of students with a disability, who have privately enrolled their child in a nonpublic school, may seek to obtain educational “services “for the Student by filing a request for services in the district of location where the nonpublic school is located. See 3602-c. Parents may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id.. In accordance with this law, the District’s CSE must review the request for services and develop an IESP for a student the request has been made for based upon the Student’s individual needs in the same manner and with the same contents as an IEP. See, N.Y.S. Ed. Law § 3602-c(2)(b)(1); 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, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007 (“Guidance Memo on 3602-c”) https://www.p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf.
Under § 3602-c(2)(b)(1), the committee on special education (CSE) must “assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis [emphasis added] as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Included in the definition of “services” under § 3602-c(1)(a) is “education for students with disabilities, and counseling, psychological and social work services related to such instruction provided during the regular school year for pupils enrolled in a nonpublic school located in a school district, provided that such instruction is given to pupils enrolled in the public schools of such district.” The Guidance Memo on § 3602-c advises that services covered by this section of the law are limited to those services provided in programs operated during the course of “the regular school year” and not summer programs. Guidance Memo on 3602-c, p. 14.
“Equitable basis” means services provided to students with disabilities in parentally placed private schools in the same manner and range as compared to students with disabilities attending public or NYS-approved nonpublic schools located within the same school district, considering “need” and the Student’s placement in the nonpublic school program. Guidance Memo on 3602-c, pp. 10-11. A school district is “not required to provide greater services to a nonpublic student then a public-school student would receive under the Rowley standard.” Id., at pp. 11-12.
A parent who disagrees with the individual evaluation, eligibility determination, recommendations of the CSE on the IESP and/or the provision of special education services may submit a Due Process Complaint Notice to the school district of location. See Id. at 5.
While the statutory scheme of NYS Education Law § 3602-c places the responsibility of selecting and placing the Student in a nonpublic school on the parent, the implementation of the services called for by a student’s IESP falls on the district as far as “boards of education of all school districts of the state shall furnish services to students who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent.” See § 3602-c; see also, Application of Student with a Disability, SRO Appeal 16-008. The decisions of the State Review Officers, while not binding, have repeatedly found that a school district in New York is required by law to locate and assign a student publicly provided teachers or services providers for dually enrolled students under N.Y. Ed. Law § 3602-c(2)(a). The SRO decisions have repeatedly found that it may be permissible for a district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, but it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted permanently to the parent. See, SRO Appeal 16-008; Application of a Student with a Disability, SRO Appeal No. 20-042; Application of a Student with a Disability, SRO Appeal No. 20-094;Application of a Student with a Disability, SRO Appeal No. 20-141; Application of a Student with a Disability, SRO Appeal No. 21-101; Application of a Student with a Disability, SRO Appeal No. 21-119.
Districts providing services to non-resident pupils may recover tuition from a district of residence in accordance with the NYS Commissioner’s formula pursuant to regulation; average daily attendance of nonpublic students receiving services pursuant § 3602-c shall be included in such computations of costs to be recovered as delineated in § 3602-c and pursuant to Federal and State Law and regulation. See § 3602-c(1)(7) and (8); see also, Guidance Memo on 3602-c. Related to such computations, § 3602-c defines “average daily attendance” as tied to the number of days the public school was in session for each attendance period and the number of classes operated by the public school during the school day in relevant time period. 3602-c(1)(e)
Section 3602-c is limited to a provision of programs or services during the course of the “regular” school year. See 3602-c(1)(a). The Guidance Memo on 3602-c providing guidance on a district’s obligations under 3206-c indicated that districts are not required to provide dual enrollment services to students with disabilities during the summer. Guidance Memo on 3602-c, p.14. Therefore an IESP can only be for ten months per statutory law. See also, R. G. v. NYC Dep’t. of Educ., 18 cv-11219 (S.D.N.Y. Jan. 24. 2022); SRO Appeal No. 20-094; Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Documents," at pp. 39-40, Office of Special Ed. [Apr. 2011], http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf.
The New York City Department of Education School year calendar for the regular school year for 2021-2022 had approximately 180 instructional days complying with New York state law and ran from September 13, 2021 through June 27, 2022. See https://cdn-blob-prd.azureedge.net/prd-pws/docs/default-source/default-document-library/doe-calendar-sy-21-22.pdf; see also, N.Y.S. Ed. Law. § 3604 and 8 NY RRR § 175.5. The New York State Regulations states a “school day” shall have the “the same meaning for all students in school including students with disabilities and students without disabilities.”
Burden of Proof
Except for in circumstances related to unilateral placements, the burden of proof entirely is on the school district during an impartial hearing, 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); see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 (2d Cir. 2012); M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27, 2010]).
Compensatory Services The Parent requests compensatory education and services for the District's failure to provide the Student with a FAPE during 2021-2022 school year for the period of September 1-November 8, 2021.
An award of compensatory services should be tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. P. v. Newington Bd. of Educ., 546 F. 3d 111, 123 (2d Cir. 2008); E. M. v. N. Y. City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014).
The An award of compensatory education is an equitable remedy that "should aim to place disabled children in the same position they would have occupied but for the school district's violation of the IDEA." Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005). 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.” Id. at 524. Compensatory education is "replacement of educational services the child should have received in the first place." Id. at 518; see also, Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015).
An award of compensatory services may be appropriate if there has been a violation of the IDEA resulting in the denial of appropriate services, usually for a gross violation, for an extended or substantial period of time and if such deprivation of instruction can be remedied through the provision of additional services before the Student becomes ineligible for instruction by reason of age or graduation. Id.; French v. New York State Dep’t of Educ., 476 Fed. App’x 468, 471 (2d. Cir. 2011);Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Burr v. Ambach, 863 F.2d 1071, 1078-79 (2d Cir. 1988), aff’d on reconsideration, Burr v. Sobol, 888 F. 2d 258 (2d. Cir. 1989); Mrs. C v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001.). Compensatory education may be awarded to students under the age of twenty-one. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. Oct. 30, 2008). Compensatory education awards should be designed to "appropriately address the problems with the IEP" and designed to “make up for” a denial of FAPE and place student in the position they would have been in if not for the denial of FAPE. Newington, 546 F.3d at 123; Reid, 401 F.3d at 524.
There are two approaches to fashioning a compensatory education award, a "quantitative approach" (see M.C. v. Cent. Reg' l Sch Dist., 81 F.3d 389 (3d Cir. 1996)) or "qualitative approach," i.e., "a flexible approach, rather than a rote hour-by-hour compensation award" (see Bd. of Educ of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007); see also, Reid, 401 F.3d at 518. An IHO may order an escrow account or “trust fund” also referenced as a “bank” of compensatory hours/funding for compensatory education and services. Doe v. E. Lyme Bd. of Educ.,962 F. 3d 649 (2d Cir. 2020); Doe v. E. Lyme Bd. of Educ., 790 F. 3d 440 (2d Cir 2015); Streck v Bd. of Educ. Of E. Greenbush Cent. Sch. Dist., 408 F. App’x 411 (2d. Cir. 2010).
A presently appropriate educational program does not abate the need for compensatory education. D. W. v. District of Columbia, 561 F. Supp. 2d 56, 61 (D.D.C 2008), citing Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, (D.D.C. 2006). Compensatory education must be needed, and the purpose of compensatory education is results based. If a Student does not need additional compensatory education even if a denial of FAPE is shown, “”[i]t may be conceivable that no compensatory education is required for the denial for a [FAPE] …either because it would not help or because [the Student] has flourished in his current placement.” Phillips v. District of Columbia, 2010 WL 3563068 at *6, 55 IDELR 101 (D. D.C. 2010), citing Thomas v. District of Columbia, 407 F. Supp. 2d 102, 115, (D.D.C 2005); see also, Gill v. District of Columbia, 55 IDELR 191 D.D.C. 2010) (“The Court agrees that there may be situations where a student who was denied a FAPE may not be entitled to an award of compensatory education, especially if the services requested, for whatever reason, would not compensate the student for the denial of FAPE.”). A Student is not entitled to a compensatory award just because there was a denial of FAPE. Phillips, WL 3563068 at *6.
As the District bears the burden of proof as to all matters (except appropriateness with regard to a unilateral placement), the District must offer its view of the special education needs with regard to compensatory education into the hearing record. See N.Y. Ed. Law § 4404(1)(c); M.M. v. New York City Dep’t of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. Mar. 30, 2017).
ANALYSIS
1.The District “conceded” there was a denial of FAPE.
There is no question Student was denied a FAPE due to the fact the District did not meet its burden of proof and present a case that asserted it provided Student with a FAPE pursuant to the claims in the DPC as litigated in the hearing on the merits. Ultimately, the Parent litigated and presented for hearing that the District failed to implement the 2020 IESP between September 1, 2021 and November 8, 2021. While it is unclear from the record the amount of SETSS, S/L T and Counseling that was not implemented during this period and there is no question the District did not dispute that it failed to implement in some amount the services during this period alleged and did not attempt to prove it provided a FAPE. Therefore, I find there was a denial of FAPE during the 2021-2022 school year.
2. A Bank of Compensatory Hours Shall Be Ordered Pursuant to The District Records of Unprovided Educational Services Pursuant to the Amounts Student Did Not Receive in 2021-2022 Pursuant to the 2020 IESP During a 180 Day/36 Week School Year.
In order for there to be an entitlement to an award of compensatory hours, there must be evidence that a student actually requires the compensatory education in the record due to an actual documented need and due to an extended or substantial period of time that a deprivation of FAPE occurred. It is questionable whether Student experienced an extended or substantial deprivation of FAPE based upon the record, specifically Mother’s testimony. As this is questionable and burden of proof ultimately rests with the District and there was admittingly some loss of service, I will continue with analysis of any appropriate compensatory periods.
I note both parties did a poor job of presenting proof of Student’s needs or lack of need.
Under § 3602-c, Student is only entitled to services that are “equitable” as compared to what a public-school student would receive. Services that parentally placed students with disabilities are entitled to are defined as those that students in public school (or a State approved nonpublic school) are entitled to during a regular school year, i.e. for parentally placed students in the District during the 2021-2022 school year, this means mandated services calculated based on a total of 180 school days or 36 weeks in accord with the District’s calendar and New York State law and regulation. Therefore, Student was entitled to her mandated services calculated with pursuant to the public-school calendar. This is supported by the limitations and definitions in § 3602-c regarding how educational services should be calculated as to the District’s school year. Therefore, in questions of failure to implement the calculation of compensatory services should be made on a equivalent basis to services the Student would receive in a public school pursuant to the number of days in the relevant school year, here 2021-2022. Therefore any calculation of the compensatory services Student would be entitled on a quantitative basis shall be done by examining the services actually received (by District’s invoices) minus the total mandated SETSS, S/L T or counseling.
The proper calculation for the amount of services Student was entitled for the entitled year would have been entitled would be 108 periods or sessions (45 minutes) of group SETSS or 81 hours total, 36 hours of S/L T and 18 hours of Counseling. The school year started on September 13, 2021 and Parent claims failure to implement until November 8, 2021. This comprises 37 school days when the services were not implemented. As stated above, considering bot the District’s representations (unsupported by any evidence) and Mother’s testimony that could not pinpoint any actual number of services missed within the claimed time period, this is the only way to determine what would be appropriate for a compensatory bank.
I note that with the record before me it is questionable if the amount of services for each type of service qualifies as a “substantial and significant denial.” But, it was incumbent on the District to support its view of the denial of FAPE on Student’s special education needs, which they failed to do with evidence, although they set forth a suggested method for compensatory services on a 1:1 quantitative basis of missed services that I will adopt herein as it comports with relevant law.
While the District presented the argument that Student had received all of her SETSS hours except for 9.75 hours and an unquantified of total missed counseling and S/L T (referring to two or three weeks without stating the amount of services missed in total for S/L T and counseling), the District failed to submit any evidence. At the same time, the Parent did not provide any support for the position regarding the request regarding the amount of services requested, the amount of time Parent requested the bank stay available and the rate services are to be provided at.
Parent’s testimony could indicate that there was no substantial loss, and it is unclear if there is even need as Parent discussed how much Student improved with the services she received over the last school year. No progress reports from the end of the year, statements of the providers or other evidence is offered. There is nothing in the record to help decide as to what Student’s baseline was at the beginning of 2021-2022 school year as to the services Student received, where she was at the end of the year and where she was expected to be. Mother was unable to answer any questions or attest to how Student was negatively affected by the loss of services.
Parent could not support how she calculated the basis of her request. Her testimony evidenced she had no idea how it was calculated. Further Parent’s testimony was vague and did not support the contention that Student did not receive any services during the time period allege or when Student did not receive services. Parent’s lack of knowledge of the school schedule, daughter’s needs, providers, actual reading level at the end of the school year when testimony was only at the beginning of the following school year left her an unconvincing witness. Parent provided no proof as to whether Student’s school schedule for the 2021-2022 school year to evidence the number of weeks or days Student to attended school. As I find under § 3602-c, Student would not be entitled to a greater amount of services then a Student in public school as 3602-c specifically states that Student is to receive ‘equitable services” or 180 school days.
Therefore, as the District does not dispute some services were missed and both parties abdication of any provision of evidence necessary for determining whether compensatory services are appropriate, I will grant compensatory services limited to the total amount of mandated services on the 2020 IESP Student actually missed during the 2021-2022 school year based upon a 180-day school day calendar. Under § 3602-c what constitutes “equitable” services and the limitation on services to be provided as equivalent to the schedule of the District (180 school days) this is the amount Student should be awarded in this matter. A Student in a nonpublic school is not entitled to services if they attend more days in the school year than their counterparts in the District. The District’s records regarding what was invoiced by Student’s providers for SETSS, S/L T and Counseling for Student during the 2021-2022 school year should be used and should be provided to Parent so the District and Parent can understand what was actually missed during the relevant school year.
The compensatory bank shall include the equivalent amount of SETTS, S/L T and Counseling Student did not receive as calculated using the total amount of services entitled during the 2021-2022 school year, as follows: 108 periods (45 minutes) of group SETSS or 81 hours total minus the SETSS services billed by “REDACTED”, 36 hours of S/L T or 72 30-minute sessions minus the services billed by Student’s S/L T provider for 2021-2022 and 18 hours of Counseling or 36 30-minute sessions minus the services billed during the 2021-2022 school year. For use of the services in the compensatory bank, Parent may use a provider of her choice for all services at a rate of up to $160.00 maximum for SETSS or the Provider’s prevailing rate if less, $130.00 per hour for S/L T or the Provider’s prevailing rate if less and $130.00 per hour or the Provider’s prevailing rate if less for Counseling. The bank must be used within six months from this order or expires.
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
IT IS HEREBY ORDERED, the District denied Student a FAPE for the 2019-2020 school year by failing to provide the mandated SETTS, Speech and Language Therapy and Counseling as forth in the 2020 IESP during the entire 2021-2022 school year;
IT IS HEREBY ORDERED, the District shall provide its records to Parent of SETSS, Speech and Language Therapy and Counseling that was invoiced to the District by Student’s Providers in the those respective services for the 2021-2022 school year and these records of invoiced amounts shall be deemed the actual services Student received during the 2021-2022 school year and used to calculate the remainder of services due to be in the compensatory bank of services as discussed in the next ordering paragraphs;
IT IS HEREBY ORDERED, the following relief be GRANTED to Parents: the District will fund a bank of services as makeup services pursuant to the SETTS periods, Speech and Language Therapy sessions and Counseling Student should have received during the 2021-20222 school year but did not as calculated by subtracting the services invoiced from the total amount mandated in the 2020 IESP using 180 school days or 36 weeks as the method to calculate total amount mandated;
IT IS HEREBY ORDERED, that the total bank of services shall be calculated as follows: (i) total SETTS sessions to be calculated and deemed as part of the bank of SETTS group services student is entitled shall be calculated from the amount invoiced to the District for the benefit of Student from provider “REDACTED” for the 2021-2022 school year hours (deemed total Student received) subtracted from total mandated SETSS sessions (group) of 108 45-minute sessions/81 hours; (ii) total Speech and Language Therapy sessions to be calculated and deemed as part of the bank of Speech and Language Therapy Student is entitles shall be calculated the amount invoiced to the District for the benefit of Student from Student’s provider during the 2021-2022 school year (to be deemed the total Student received) subtracted from a total of mandated 1:1 Speech and Language Therapy sessions of 36 hours or 72 30-minute sessions; and minus the sessions invoiced to the District for the benefit of Student for the 2021-2022 school year and (iii) total Counseling sessions to be calculated and deemed as part of the bank of Counseling group services student is entitled in the bank shall be calculated from the amount invoiced to the District for the benefit of Student from provider for the 2021-2022 school year hours (deemed total Student received) 18 hours of group Counseling or 36 30-minute sessions from provider subtracted from the sessions invoiced to the District for the benefit of Student for the 2021-2022 school year, as such all calculations of the total SETSS, Speech and Language Therapy and Counseling Student did not receive from the total mandated as calculated in this order based upon the 180 day school year shall constitute Student’s bank of total compensatory services;
IT IS HERE BY ORDERED, Parent may use a provider of her choice for all services at a rate of up to $160.00 maximum for SETSS or the Provider’s prevailing rate if less, $130.00 per hour for Speech and Language Therapy or the Provider’s prevailing rate if less and $130.00 per hour or the Provider’s prevailing rate if less for Counseling; and
It IS HEREBY ORDERED, the Compensatory Bank of all services must be completely used within Six (6) months of the date of this order and thereafter the Compensatory Bank shall be terminated, and any unused services shall be deemed forfeited.
SO ORDERED.
DATED: November 9, 2022
_____________________
Stephanie Seto, 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.
APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
Exhibit
Document
Date
Pages
A
DPC
11/8/2021
6 pages
B
IESP
2/28/20
9
C
10-DAY NOTICE
11/8/21
2
D
Affidavit of Mother
Sworn to on Record 9/20/22
2
Footnotes
[2] It is noted that no evidence was offered by the District so any assertions regarding RSAs offered are not supported by any evidence I the record.
[3] It is noted that both Parent (and District) appear to mix the request of 3 “periods” of SETSS in the 2020 IESP with hours. The 2020 IESP recommends three periods of SETSSS a week not hours. P Ex. B. Normally periods are 40-45 minutes long.