Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Record Close Date: November 14, 2023

Hearing Requested by: Parents

Dates of Hearing:

4/14/23 5/9/23

6/22/23

6/26/23

7/19/23

Hearing Officer: Israel S. Wahrman, Esq. Background and Positions of the Parties

On August 31, 2022, I was appointed by the New York City Department of Education (DOE) as Impartial Hearing Officer (IHO), pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) as well as Section 504 of the Rehabilitation Act, 29 U.S.C. 794, in this matter . I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. The hearing took place on the following dates: April 14, 2023 (prehearing conference), May 9, 2023, June 22, 2023, June 26, 2023 and July 19, 2023. Extensions of the compliance date were granted by this IHO due to exploration of possible settlement, availability of witnesses, time for receiving transcripts and for writing the decision by this IHO.

This hearing pertains to the 2022-23 school year. The district, which has the burden of proof, did not defend its having offered an appropriate program. The district argued that this case is moot since the district paid out the cost of the school tuition for the nonpublic school that the student attended, as well as the cost of related services, having paid for this education and these services under pendency. Tr. 20-21. The parents argue that even if the funds for the school and related services were paid, a decision is needed on the merits since the claims are “capable of repetition, yet evading review, and the Parent has to go through this year after year.” Tr. 22. In addition, the parents are also seeking twenty hours per week of applied behavior analysis (ABA); parents argue that this service that the district was responsible to fund has not been fully covered or paid. Tr. 22-23. And lastly the parents are seeking reimbursement for money spent transporting this student to and from school. Tr.

23. Findings of Fact and Conclusions of Law

The obligation of the school district is to provide a disabled child with a Free and appropriate Education (FAPE). With regard to how much benefit is required for the educational program to be considered as appropriate, the US Supreme Court concluded that a school district is not required to “maximize each child’s potential commensurate with the opportunity provided other children.” Board of Education v. Rowley, 458 U.S. 176, at 198. Clarifying how much benefit is required to achieve FAPE, in Cerra v. Pawling, 427 F.3d 186 (2005) at 195, the Second Circuit, citing Walczak, 142 F.3d at 130 and Mrs. B., 103 F.3d at 1121, explained that a district fulfills its substantive obligations if its IEP leads to progress and not regression and a district court in evaluating whether a district has met its obligation, must examine the record for “objective evidence” of whether a child is likely to progress or regress under a proposed plan. In a recent decision, the United States Supreme Court clarified that an IEP must be “reasonably calculated to enable a child to make progress in light of his circumstances.” Endrew F. ex rel. Joseph F. v. Douglas Cty. Sch. Dist., 137 S. Ct. 988 (2017).

The criteria for deprivation of FAPE based upon procedural deficiencies are that the deficiencies - (a) impeded the students’ rights to a FAPE, (b) significantly impeded the parents’ opportunity to participate in the decision making process regarding the provision of FAPE or (c) caused a deprivation of educational benefits. 20 USC ϸ 1415 [f][3][E][ii]. As stated in Matrejek v. Brewster Cent. School Dist. 471 F. Supp. 2d 415, 419 (SDNY 2007) aff’d 2008 WL 3852180 (2d Cir. Aug. 19, 2008):

Procedural flaws do not automatically require a finding of a denial of a FAPE. Only procedural inadequacies that cause substantive harm to the child or his parents — meaning that they individually or cumulatively result in the loss of educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the IEP — constitute a denial of a FAPE. With regard to the burden of proof in New York State, the school district has the burden of proof, including the burden of persuasion, in any impartial special education due process hearing. The exception to this is that “a parent or person in parental relation seeking tuition reimbursement for a unilateral placement shall have the burden of persuasion and burden of production on the appropriateness of such placement.” ϸ 4404 of the Education Law (Amended by Laws of New York, 2007, Chapter 583.)

The legal standard for funding unilateral placement cases is well established, based upon School Committee of Burlington v. Department of Education of Massachusetts, 471 U.S. 359,1985. The analysis involves three prongs. The first prong is whether the public school provided a Free and Appropriate Education (FAPE). If it did, the inquiry ends here; as the school district has met its burden. Prong 2 requires the determination of whether the program selected by the parent is appropriate. Then, there is Prong 3, do the equitable considerations support the parent’s claim? See also Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 12-13(1993).

In determining who is right in this dispute, I as the Impartial Hearing Officer must follow the preponderance of the evidence. As expressed by the Second Circuit in the case of A.M. v. New York City D.O.E. (2017), describing the reasoning of an earlier Second Circuit case:

… R.E. stands for the unremarkable proposition that, when the reports and evaluative materials present at the CSE meeting yield a clear consensus, an IEP formulated for the child that fails to provide services consistent with that consensus is not "reasonably calculated to enable the child to receive educational benefits," Rowley, 458 U.S. at 207, and the state's determination to the contrary is thus entitled to no deference because it is unsupported by a preponderance of the evidence. See C.F., 746 F.3d at 81 (holding that the IEP's failure to provide a 1:1 classroom resulted in the denial of a FAPE because "the testimony and reports indicat[ed] that [the child's] needs required a 1:1 placement," thereby rendering "such instruction. . . a necessary component of any plan ‘reasonably calculated to enable the child to receive educational benefits'" (quoting R.E., 694 F.3d at 190)). This remains true whether the issue relates to the content, methodology, or delivery of instruction in a child's IEP.

With regard to compensatory education, in the second circuit, it is established that “IDEA allows a hearing officer to fashion an appropriate remedy, and we [i.e., the Second Circuit] have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. v. Newington, 546 F.3d 111 (2d Cir. 2008)[internal citations omitted].

Ordering compensatory education is not a mechanical matter, where a student gets one hour for every hour missed of compensatory time, nor any other such formula. Rather, an order of compensatory education is an equitable remedy available to a hearing officer or judge. Rather than a mechanistic formula, “the ultimate award must be fact-specific and, to accomplish IDEA’s purposes, the ultimate award must be reasonably calculated to provide the educational benefits that would have accrued from special education services the school district should have supplied in the first place.” Reid v. District of Columbia, 401 F.3d 516 (DC Cir. 2005), 524. Note that Reid was cited by the second circuit in Newington, in reaching its own conclusion that compensatory education is an option. Reid, Supra., emphasizes that compensatory services are equitable relief; they are not a contractual remedy.

Although compensatory is a form of equitable relief, at times courts have used a quantitative method to calculate the amount of services missed so that the services can be made up through compensatory education. M.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996) ; Manchester Sch. Dist. V. Christopher B. 807 F. Supp. 860 (D.N.H. 1992).

Compensatory services can take many forms, as the point is to provide services that will make the student whole, with regard to the educational deprivation that the student has experienced. In Draper v. Atlanta, 518 F.3d 1275 (11th Cir. 2008), at 1284, the court concluded that “the provision of a public school option does not preclude an award of placement in a private school by a court,” as compensatory services. The decision also explains that a “disabled student is not required to demonstrate that he cannot be educated in a public setting.” Ibid., at 1285. The court further explained that whereas an educational program must be” reasonably calculated to enable the child to receive educational benefits, “ quoting Rowley, 458 U.S. at 206-07, when it comes to compensatory services, more than that is required; i.e., in the words of the Draper decision, “… compensatory awards must do more, - they must compensate. ... Compensatory awards should place children in the position they would have been in but for the violation of the Act. [IDEA]” Ibid., at 1289.

Here, the district put on no case at all defending its having provided an appropriate program – as the district has the burden of proof with regard to the educational program that it offered, I must and do find that the district has failed to provide for an appropriate program.

In the school year prior to the school year at issue here, the 2021-22 school year, this student EA attended the same nonpublic school. An impartial hearing officer’s decision found in the parents’ favor. Exhibits Q-14, A-3.

The parents chose to continue this student at the nonpublic school, after the DOE offered the same program as in the previous school year, a program that an IHO had already found for that school year to be inappropriate. The DOE funded the program at the nonpublic school under pendency, as the district acknowledges. In truth, as written in a district court decision, “Here, consideration of the second and third Burlington-Carter factors is wholly unnecessary because Plaintiffs are not seeking reimbursement for a unilateral private placement secured during the pendency of this action. …” MN v. NYCDOE, 700 F. Supp.2d 356 (210), at 369. Rather here the student was entitled to this program as pendency. This program at the nonpublic school does qualify under Prong 2, nevertheless. At the nonpublic school, this student was placed in a small class with seven students, featuring a 1:1 student ratio. He received 1:1 support and ABA. He received needed related services. And he has demonstrated progress, behaviorally and academically. Exhibit R. I find that the parents have met the burden of showing that the placement at the nonpublic school was appropriate. And I find no basis in the equities for diminishing the responsibility of the DOE for funding this student’s program at the nonpublic school. I therefore find that the DOE was responsible for the funding of this program, on the merits.

With regard to the parents’ request with regard to home-based ABA, during 2022-23, this student received ABA services, using a bank of compensatory services. This student needed home based ABA “to continue his skills acquisition, increase his ability to generalize, and avoid regression in his skills and behavior.” Exhibit T, 17-18. And what was needed was twenty hours of services per week, although he received less than that, having only received 16.5 hours. I am therefore ordering a bank of compensatory ABA hours to make up for the hours that should have been provided but were not, i.e., the amount of hours which were not provided, during the twelve-month school year.

To my knowledge, this student has received assistive technology, as part of his educational program. See Exhibit A-17. This was part of the pendency. Assistive technology is listed on the IEP of 4/29/22. Exhibit B-41. This was appropriate as part of the program and has not been challenged by the district.

With regard to transportation, the DOE needs to reimburse the parents for monies spent on transportation to and from the nonpublic school during the 2022-2023 school year.

Order

Although it appears that the funding for the school program at the nonpublic school has already been provided under pendency, the merits of this case also justify the obligation for the DOE to fund this school program, as explained above. The assistive technology provided was appropriate and needed. It appears that twenty hours per week of home-based ABA was needed but the district provided less than that. I am ordering that the district be responsible to fund a bank of ABA hours made up of the total of hours missed by having provided less than twenty hours per week. This bank of compensatory services hours shall be created within thirty days of receipt of this order. I am also ordering that the district reimburse the parents for the cost of having provided transportation for this student to and from the school.

Dated: November 19, 2023 Israel S. Wahrman

Israel S. Wahrman, 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.