New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 569632 - NYC: 224279

In the Matter of an Impartial Hearing pursuant to Part 200 of the Regulations of the Commissioner of Education

Student

-against-

Findings of Fact

The New York City Department of Education Case # 224279

Procedural Context

On April 29, 2022, I was appointed to hear the matter of Student versus the New York City Department of Education pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. Section 1415 (f)(1). On May 11, 2022 a hearing on pendency was held. The matter was continued to June 13, 2022 at which time the Parent requested a hearing on the merits. On July 28, 2022, the proceedings went forward, testimony was taken and evidence entered into the record. As such, the record was closed and the timeline was duly extended to July 28, 2022. It is noted that this is a parental request seeking compensatory services for the 2020-2021 school year in addition to a portion of the 2021-2022 school year. Specifically, the Parent solely asserts that the Department of Education failed to provide the SETSS services mandated in its January 22, 2020 IESP and therefore stands in violation of its mandate pursuant to 20 US Code Section 1412 [a][3]. Exhs. A, B. While it appears that the child was additionally entitled to speech and language services, this issue has apparently been resolved and was not addressed during the proceedings. As a result, the only issue in this matter concerns the issue of compensatory education for SETSS service hours not provided by the Department. These service hours were mandated originally in the child’s January 22, 2020 Individualized Education Services Program (hereinafter “IESP”) and have not been provided.

Prior to the commencement of the within action, it became clear that the Department of Education would not be producing any witnesses or evidence. Under these circumstances, I find that the Department of Education has not met its prong one burden consistent with Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985].

As a corollary, the Parent contends that there are no equitable factors which militate against his right to relief. As the hearing unfolded, testimony offered by the Parent’s witness was credible and I have concluded that this individual testified truthfully in accordance with her recollections and as to the opinions she held.

It should be noted that subsequent to my appointment, the parties moved to extend the compliance date on various occasions in light of anticipated testimony, scheduling of witnesses and mutually available dates. I note that Student is “a child with a disability” as that term is defined under the IDEA, 20 U.S.C. § 1400 et seq., and is classified with a “speech and language impairment” as that term is defined by 20 U.S.C. § 1401(a)(1). A list of persons in attendance and of evidence is appended hereto.

Summary of the Facts The Parent testified that her son did not receive SETSS services during the 2020-2021 school year as well as during part of the 2021-2022 school year. Exh. D. Although she availed herself of the Department’s website, she was unable to locate a bilingual X-English provider of SETSS who was available to service her child. Exh. D. During this time frame, her son was entitled to receive 5 periods per week of SETSS but received no services.

Review of the Law

It is clear that the legislative intent of 20 US Code Section l4l2 of the Individuals with Disabilities Education Act is to provide a free and appropriate public education to all children with disabilities so that these individuals may ultimately lead productive, independent lives as adults, to the maximum extent possible. ( 20 U.Y.G.Sx.1400 [d][1][A]; see, Mrs. W. v. Tirozzi, 832 F.2d 748, 750 [2nd Cir. 1987)]. A FAPE consists of specialized education and related services embodied in an IEP. See 34 C.F.R. 300.13. An appropriate program begins with an IEP which accurately reflects the results of evaluations to identify the student's needs, establishes annual goals and short-term instructional objectives related to those needs, and provides for the use of appropriate special education services (Application of a Child with a Disability, Appeal No. 01-105; Application of a Child Suspected of Having a Disability, Appeal No. 93-9). The IEP is the "modus operandi" of the IDEA (Burlington Sch. Comm. v. Dep't of Educ., 471 U.S. 359, 368 [1985]). Under both state and federal law, an IEP is specifically defined as a "written statement" that addresses the educational needs of a child with a disability.(20 U.Y.G. 1401(11); 34 C.F.R. 300.340[a]; 8 NYCRR 200.1[y]). The IDEA and its corresponding regulations mandate that at the beginning of each school year, a school district must have an IEP in place for each child with a disability that resides within its jurisdiction (20 U.Y.G. 1414(d)(2)(A); 34 C.F.R. 300.342[a]).

In furtherance of this, a board of education must show (a) that it complied with the procedural requirements set forth in the IDEA, and (b) that the IEP developed through the IDEA's procedures is reasonably calculated to enable the child to receive educational benefits (Bd. of Educ. v. Rowley, 458 US 176, 206-207 [1982]). The recommended program must also be provided in the LRE (34 C.F.R. § 300.550[b]; 8 NYCRR 200.6[a][1]).

While both the Supreme Court and Congress place great importance on the procedural provisions of the IDEA (Rowley, 458 US at 205 ["the importance Congress attached to these procedural safeguards cannot be gainsaid"]), nevertheless, adequate compliance with the procedures prescribed [by the IDEA] would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP" (Rowley, 458 US at 206; M.S. v. Bd. of Educ. of the City of Yonkers, 231 F.3d at 102). Still, the initial procedural inquiry is no mere formality (Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 [2d Cir. 1998]). These detailed procedural provisions "lie at the heart" of the statute (Evans v. Bd. of Educ. of the Rhinebeck Cent. Sch. Dist., 930 F. Supp. 83, 93 [S.D.N.Y. 1996]). They are not mere procedural hoops through which Congress intended state and local educational agencies to jump, rather the procedures are themselves a safeguard against arbitrary or erroneous decision making (Daniel Y.G. v. State Bd. of Educ., 874 F.2d 1036, 1041 [5th Cir. 1989]; Engwiller v. Pine Plains Cent. Sch. Dist., 110 F. Supp. 2d 236, 247 [S.D.N.Y. 2000]; Evans, 930 F. Supp. at 93). As the Department essentially defaulted by virtue of its lack of witnesses and evidence, I find that they have not established FAPE.

Addressing the issue of compensatory education, Application of a Child with a Disability No. 05-022 furnishes an excellent overview of compensatory education and its discussion is recited herein. The IDEIA applies to children aged 3 through 21 inclusive (20 U.S.C. § 1412[a][1][A]), subject to the limitation that it does not apply to children aged 18 through 21 where it is inconsistent with state law or practice on the provision of a public education (20 U.S.C. § 1412[a][1][B][i]; see St. Johnsbury Academy v. D.H., 240 F.3d 163, 169 [2d Cir. 2001]). New York Education Law specifically provides IDEIA eligibility to children through the end of the school year in which they turn 21 (N.Y. Educ. Law § 4402[5][b]; see 8 NYCRR 100.9[e]; see also Application of a Child with a Disability, Appeal No. 02-016; Application of a Child with a Disability, Appeal No. 00-024). Generally, under the IDEIA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one" (Mrs. C. v. Wheaton, 916 F.2d 69, 75 [2d Cir. 1990] [internal citation omitted]). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]" (Honig v. Doe, 484 U.S. 305, 318 [1988]; see Cosgrove v. Bd. of Educ., 175 F. Supp.2d 375 [N.D.N.Y. 2001]).

The Second Circuit, however, allows for the provision of compensatory education services for a student over 21 years old where there has been a gross violation of the IDEA during the time of the child's eligibility (Garro v. Connecticut, 23 F.3d 734, 737 [1994]; Mrs. C., 916 F.2d at 75; Burr v. Ambach, 863 F.2d 1071, 1075 [2d Cir. 1988]), such as the type that results in the denial of or exclusion from educational services for a substantial period of time (see, e.g., Mrs. C., 916 F.2d at 75; Burr, 863 F.2d at 1078, Mrs. C. v. Wheaton, 916 F.2d 69 [2d Cir. 1990]; Burr by Burr v. Ambach, 863 F.2d 1071 [2d Cir. 1988]; Lester H. v. Gilhool, 916 F.2d 865 [3d Cir. 1990]; Miener v. State of Missouri, 800). In such cases, "the scope of the remedy can extend beyond the scope of the original right" (Burr, 863 F.2d at 1078, citing Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 [1971]), and compensatory education services may be awarded to students over 21 as a remedy for past deprivations of a right that the IDEA clearly provided a FAPE between the ages of 3 and 21 (see Burr, 863 F.2d at 1078; Cosgrove, 175 F.Supp.2d at 387). It is, however, an equitable remedy that must be tailored to meet the circumstances of the case (Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147, 151 [N.D.N.Y. 1997], aff'd 208 F.3d 204 [2000], cert. denied 531 U.S. 1019 [2000]; Application of the Bd. of Educ., Appeal No. 02-033; Application of a Child with a Disability, Appeal No. 02-019).

In fact, the purpose of a compensatory education award is not to provide “extra” educational services to a student, but rather to redress “a school district’s failure to provide that which it was obligated to provide earlier.” Application of the Board of Education of the Millbrook Cent. Sch. Dist., App. No. 02-033, citing Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 158 [3d Cir. 1994]. Thus while “ordinary IEPs need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid v. Dist. of Columbia, 4401 F.3d 516, 525 (D.C. Cir. 2005).

In part, the rationale for deferring an award of compensatory education is additionally based upon the notion that a School District must be given the opportunity to remedy its failings during the traditional course of the child’s education. Thus, federal courts within the Second Circuit have held that compensatory education is a remedy that is available to students who are no longer eligible for instruction. Nevertheless, SRO decisions have, in the past, awarded equitable relief in the form of additional educational services to students who remain eligible to attend school. (Application of the Bd. of Educ., Appeal No. 03-075; Application of a Child with a Disability, Appeal No. 02-042; Application of a Child with a Disability, Appeal No. 02-030.

Discussion

The IESP mandates that the child should receive five periods per week of bilingual SETSS per week. Exh. B. This was not furnished to the child and, as such, the Department of Education stands in abrogation of its IDEA mandate. As a result, the Parent was compelled to identify her own provider or receive no services. Although the Parent attempted to secure a provider by contacting a number of individuals, identified on the Department of Education’s website, none were available. As a result, the child received no services for several months. It is the Department’s responsibility to provide these services. It did not do so, all to the detriment of the child.

Clearly, the Parent attempted to work cooperatively with the Department of Education. She attended the CSE convene in question and utilized the Department’s provider directory. When the Department’s directory proved ineffective, the Parent was proactive, but ultimately unsuccessful, in locating a provider. In view of the above, I find that there are no equitable factors which militate against the Parent’s right to recovery.

Finally, the record indicates that, during the time in question, 280 hours of SETSS services were specifically not provided. This reflects an extended time frame during the 2020-2021 school year as well as a failure to provide services from September 1, 2021 to December 28, 2021.

Conclusion The Parent’s request is granted. The child was entitled to five periods of bilingual X-English SETSS services per week. He did not receive them for a protracted period of time. It is the Department of Education’s affirmative responsibility to ensure that such services are accessible and available to the Parent. It did not do so. Rather, the service directory on its website offered a stale list of individuals, uninterested or unable to service the child. Under these circumstances, I find that the Parent is entitled to the relief requested in its Due Process Complaint of December 28, 2021. Exh. A.

Wherefore, it is hereby ordered that:

Within forty-five (45) days of the date of this Order, the Department of Education shall establish a bank of 280 SETSS hours, to be paid directly to the child’s SETSS provider(s) at the prevailing rate. Services shall only be paid directly to the child’s SETSS provider(s) upon submission of a duly executed affidavit of attendance. This bank of hours and payment shall represent the Department’s total liability for the 2020-2021 and 2021-2022 school year in terms of SETSS and compensatory hours

Dated: July 28, 2022

___________________________________________

Leah Botwinik Almeleh, Esq.

New York State Certified Impartial Hearing Officer

Persons in virtual attendance on July 28, 2022 For the Parent:

Law Offices of X

Parent For the School District:

CSE designee, Department of Education Representative

Evidence submitted on behalf of the Parent

Letter

Date

Name of Document

Number of Pages

A

12/28/2021

DPC

6

B

1/22/2020

IESP

18

C

12/28/2021

TDN

2

D

7/26/2022

Affidavit of Parent

2

PARENT DISCLOSURE

Evidence submitted on behalf of the Department of Education’s Disclosure

None

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.