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FINDINGS OF FACT AND DECISION
Case Number: 221117
Student’s Name: REDACTED
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Date of Hearing: July 14, 2022
August 2, 2022
Actual Record Closed Date: August 20, 2022
Hearing Officer: Judith Schneider, Esq.
I conducted (remotely via video conference) an Impartial Hearing for the New York City Department of Education (“DOE” or “the district”) Impartial Hearing Office, 131 Livingston Street, Brooklyn, New York, pursuant to the Individuals with Disabilities Education Improvement Act (“IDEIA”), 20 U.S.C. §1415, and Article 89 of the Education Law of the State of New York, regarding the special education program of REDACTED (“the student”).
Procedural History
The proceeding was initiated at the request of the parents (hereinafter “the parent”) by correspondence filed November 8, 2021, which was amended by correspondence filed December 13. 2021. (Ex. A) I was appointed Impartial Hearing Officer on March 29, 2022. A prehearing conference was conducted on April 11, 2022.Status conferences were held on May 11, 2022 and July 9, 2022. Hearings were held on July 14, 2022 and August 2, 2022.
Parties moved to extend the compliance date on various occasions in light of settlement discussions, anticipated testimony, the scheduling of witnesses and submission of evidence and receipt of the transcript and issuance of the decision. In considering the requests I weighed the cumulative impact of the relevant factors and found that the need of the parties for additional time to prepare and present their positions in accordance with the requirements of due process was greater than any delay in the resolution of this matter. Accordingly, the requests for extensions of the compliance dates were granted.
The current compliance date is September 10, 2022. The record closed on August 20, 2022, upon my receipt of the final transcript.
Findings of Fact and Conclusions of Law The parent asserts and the district does not dispute that the student was entitled to receive for the 2021-2022 school year (“SY”): SETSS (10 periods Direct Group REDACTED); Speech Language Therapy (“SLT”) (2x30 min. per week (1:1) REDACTED); Counseling (1x30 min per week (1:1) REDACTED.
The parent’s claim that the district failed to identify providers and that the parent was unable to secure qualified providers was not contested by the district. (Ex. D, T40-41) The district’s failure to provide FAPE for the 2021-2022 SY is therefore established.
Pursuant to pendency agreement between the parties, the student received the above specified services commencing November 8, 2021. (T34-37). The parent’s assertion that the student is entitled to a bank of compensatory services for services the student should have received and did not for the period from the commencement of the school year (10-month program) through November 7, 2021, was not disputed by the district. (T40)
Further, it is well established that compensatory education may be awarded to students still eligible for services who have not received a FAPE. P. v. Newington, 546 F.3d 111(2d Cir. 2008) It is not required that the denial be gross when occurring as here during the age range of student eligibility. See, e.g., Appeal No. 13-048, Appeal No. 12-235, Appeal No. 12-209. “…[C]ompensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]).” Appeal No. 11-027.
The district has not contested the parent’s claim for the compensatory services to be at the fair market rate at time of delivery and has not proposed a rate which it asserts is appropriate. (T34-37,40)
Accordingly, the student is entitled to a bank of compensatory services as specified below in the ORDER section.
ORDER
It is HEREBY ORDERED that:
- • The student is entitled to a bank of services as follows:
SETSS: 90 periods Direct Group (REDACTED);
SLT: 18 30-minute sessions (1:1) (REDACTED);
Counseling: 9 30-minute sessions (1:1) (REDACTED).
- • The rate for the services shall be the fair market rate at time-of-service delivery. Services are to be utilized at sole option of the parent but must be utilized no later than September 1, 2023.
- • The district shall issue the appropriate authorizations.
Dated: September 4, 2022
_________/s/_____________
JUDITH SCHNEIDER, ESQ.
Impartial Hearing Officer
PLEASE TAKE NOTICE
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.
EXHIBITS
District
NONE
Parent
A 12/13/2021 Amended DPC 6 pgs.
B 11/30/2108 IESP 11 pgs.
C 11/8/2021 TDN 11 pgs.
D 7/26/2022 Affidavit of Parent 2 pgs.
Impartial Hearing Officer
NONE