NY IHO #221601: New York City... | Special Education Law

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FINDINGS OF FACT & DECISION

Case No.: 221601

Student’s Name: Redacted

(hereinafter referred to as “Student”)

Date of Birth: Redacted

District: Redacted

Hearing Request by: Redacted

(hereinafter referred to as “Parent”)

Hearing Dates: October 27, 2022

Actual Record Close: November 5, 2022

Hearing Officer: Marisa Carbone, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 27, 2022

For the Student:

Redacted, Esq, Attorney

Redacted, Parent

For the Department of Education:

Redacted, District Representative

ISSUES

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) through the Parents’ Due Process Complaint (“DPC”) filed on November 16, 2021. The DPC alleged that the District failed to provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) by not providing the Student with mandated related services during the 2021/2022 school year. The Parent is seeking compensatory services for the Student.

PROCEDURAL HISTORY

The undersigned Hearing Officer was appointed to the above matter on April 4, 2022. A pendency hearing was held on April 20, 2022, and a decision was rendered on that day. A status conference was held on June 13, 2022, and August 5, 2022. A hearing was held on October 27, 2022. (See, Transcript).^[1] The District failed to appear and was held in default. The Parent presented documents which were admitted into evidence and presented two witnesses by affidavit. The record closed on November 5, 2022. There were four extensions of the compliance date in order for the District to investigate the possibility of settlement and accommodate witnesses.

FINDINGS OF FACT

The Student was a Redacted student who was parentally placed at a private school during the 2021/2022 school year (P-Ex. A, B). The Student has significant delays in expressive and receptive language and was retained in the 6th grade due to significant academic lags. She could not read until the 4th grade. Her language-based learning difficulties are exacerbated by her significant anxiety.

The last IESP developed by the District’s Committee on Special Education (“CSE”) was on October 6, 2021. The CSE classified her as a Student with a speech or language impairment and recommended six periods per week of group special education teacher support services (“SETSS”) in Yiddish, individual speech-language therapy for 2 x 30 minute sessions per week in Yiddish and individual counseling for 1 x 30 minute sessions per week in Yiddish to commence on October 21, 2021.

The Student’s mother testified that the District failed to provide counseling for the Student for the 2021/2022 school year as recommended in the IESP dated October 6, 2021. The Student’s mother testified that the Student did not receive speech-language therapy or SETSS from September 1, 2021 through November 16, 2021. However, the Student’s services according to the IESP were to begin implementation on October 21, 2021. The mother also testified that she found a provider for the SETSS and speech-language therapy for the Student from November 16, 2021 until June 30, 2022. Parent provided testimony from the service provider that the Student did in fact receive those services privately. Specifically, the Student was provided 6 hours of SETSS and 2 x 30 minute sessions of speech-language therapy from November 16, 2021 until June 30, 2022. The District failed to provide any testimony or documentation that it did in fact offer the Student the mandated services of SETSS, speech-language therapy or counseling.

CONCLUSIONS OF LAW

The Individuals with Disability Education Act (“IDEA”) is comprehensive statutory framework established by Congress to ensure that students with disabilities are afforded FAPE. See, 20 U.S.C. §1400(d)(1)(A); Schaffer v. Weast, 546 US 49 (2005). A “free appropriate public education consists of educational instruction that is designed to meet the unique needs of the handicapped child, supported by such services as are necessary to permit the child to benefit from the instruction.” Bd. of Ed. Hendrick Hudson CSD v. Rowley, 458 U.S. 176, 188 (1982). In order to demonstrate that FAPE is being provided, the school district must show “that it complied with the procedural requirements set forth in the IDEA, and that the IEP developed by its CSE through the IDEA’s procedures is reasonably calculated to enable the student to receive educational benefits.” See, Application of Child with a Disability, Appeal No. 05-061, quoting, Rowley at 206. The student’s recommended program must also be provided in the least restrictive environment with non-disabled peers. See, Walczak v. Florida Union Free Sch. Dt., 142 F.3rd 119 (2nd Cir. 1998). Two purposes of the IDEA (20 U.S.C. §§ 1400-1482) 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) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally, Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Rowley, at 206-07).

An appropriate program begins with an IEP which accurately reflects the results of the 1) student’s present levels of performance; 2) provides for the use of appropriate special education services to address the child's special education needs; 3) establishes annual goals which are related to the child's educational deficits; 4) identifies transitions services; 5) provides a start and end date to the recommended program and services; and 6) criteria and evaluation procedures for the measurement of goals. See, Walzczak, supra; Id., Appeal No. 00-005. “The initial procedural inquiry is no mere formality.” Walczak, at 129. “Adequate compliance with the procedures prescribed [by IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.” Rowley at 206. For an IEP to be reasonably calculated to enable the child to receive educational benefits, it must be likely to produce progress, not regression. This progress, must be meaningful; i.e., more than mere trivial advancement. Walczak, supra.

In Endrew F. v. Douglas County School District, 580 U.S. __, 14 (2017), the Court held that, “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances, as a focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” through an “individualized education program.” §§1401(29), (14) (emphasis added), to reflect the fact that a contemplated IEP must be focused on the “particular child that is at the core of the IDEA.” In such case, the school is still required to ensure the student is given an IEP that requires not just academic but also functional progress and, although the goals may differ for students, each child must have an IEP that includes goals and services to enable a child to make both academic and functional progress. The court further stated that an IEP “is not a form document. It is constructed only after careful consideration of the child’s present levels of achievement, disability, and potential for growth” §§1414(d)(1)(A)(i)(I)–(IV), (d)(3)(A)(i)–(iv), and that “a student offered an educational program providing “merely more than de minimis progress” from year to year can hardly be said to have been offered an education at all.”

Under New York State Education Law section 3602-c, students with disabilities who are placed by their parents in nonpublic schools are entitled to receive special education services in accordance with an IESP 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. The CSE of the district of location must develop an IESP in the same manner and with the same contents as an IEP. See, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007. 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 Education Law section 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 insofar 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” (Educ. Law § 3602-c[2][a]). See, Application of Student with a Disability, SRO Appeal 16-008. The 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, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Id. Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent 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. Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (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]). While it may very well 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, it does not follow that the responsibility to redress a parents’ inability to locate a provider is shifted permanently to the parent. See, Application of Student with a Disability, SRO Appeal 17-034. It is the district’s nondelegable responsibility to ensure that services are delivered, whether in accordance with an IESP, IEP, or pursuant to a stay put rule, and cost is not a permissible reason to deter or avoid the obligation to implement a student’s services. See, Application of a Student with a Disability, SRO Appeal No. 20-087). See, Educ. Law § 3602-c(2)(a), (b)(1); 20 U.S.C. § 1401(9)(D); 34 CFR 300.17(d); see also 20 U.S.C. § 1414(d); 34 CFR 300.320.

COMPENSATORY SERVICES

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 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.

Here, based on the facts above, I find that the Student is entitled to compensatory services to attempt to place the Student in the position she should have been in, if she had the mandated services required by the IESP dated October 6, 2021, and based on the denial of FAPE for the 2021/2022 school year.

ANALYSIS

Here, it is clear from the record before me that the District did not present a case and failed to meet its burden. In fact, the District defaulted. The Student was denied FAPE and is entitled to the services mandated in the October 6, 2021 IESP and that those services were not provided by the District. At no point during the hearing did the District offer any evidence that it attempted to select or assign a service provider to deliver the services as indicated in the Student’s IESP. Neither did the District provide any legal authority that explains that the duty to participate in the implementation of the IESP falls on the Parent. There was no explanation from the District as to why it did not just schedule the services, at which time the Parent would have the responsibility of producing the Student for such services. The record is clear that the Student received SETSS and speech-language therapy privately from November 16, 2021 until June 30, 2022. The Parent should be reimbursed for providing those services. The Student is entitled to a bank of compensatory services for the District’s failure to provide SETSS and speech-language therapy but only from October 21, 2021 until November 16, 2021. As far as counseling is concerned, the Student is entitled to compensatory services for the entire 2021/2022 school year, starting on October 21, 2021.

ORDER

Based upon the Findings of Fact and Conclusions of Law, it is hereby

1). ORDERED, that the District shall fund a bank of 24 hours of SETSS for the Student to be provided by a Provider of the Parent’s choosing at a reasonable market rate;

2). ORDERED, that the District shall fund a bank of 4 hours of speech-language therapy for the Student to be provided by a Provider of the Parent’s choosing at a reasonable market rate;

3). ORDERED, that the District shall fund a bank of 17 hours of counseling for the Student to be provided by a Provider of the Parent’s choosing at a reasonable market rate;

4). ORDERED, that the District shall reimburse the Parent for the cost of SETSS and speech-language for the Student from November 16, 2021 until June 30, 2022, upon proof of invoices.

SO ORDERED

DATED: November 12, 2022

_Marisa Carbone__

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.

DISTRICT EVIDENCE

No. Description Date Pages

None

PARENT EVIDENCE

No. Date Description Pages

11/16/2021

DPC

10/6/2021

IESP

11/16/2021

TDN

10/3/2022

Affidavit of Parent

9/29/2022

Affidavit of Redacted

Provider Credentials

IHO EVIDENCE