Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 230745

Student’s Name: REDACTED

Date of Birth: REDACTED

Hearing Requested By: Parent

Dates of Hearing: November 4, 2022 and January 10. 2023 Record Closed Date: January 10. 2023

Hearing Officer: Audrey Daniel, Esq.

Names and Titles of Persons who appeared at the November 4, 2022 Hearing For the REDACTED

None

For the Parent

REDACTED, Esq., Attorney for Parent

Names and Titles of Persons who appeared at the January 10. 2023 Hearing For the REDACTED

None

For the Parent

REDACTED Esq., Attorney for Parent

REDACTED, Supervisor

I. Introduction

On September 2, 2022, I was appointed to conduct an impartial hearing pursuant to 20 U.S.C. §1415, regarding the special education program of REDACTED ("Student") brought by his parents (“Parent” or “Parents”). A pendency hearing was held on November 4, 2022, and a one-day hearing was held on January 10, 2023. The REDACTED (“REDACTED”) did not appear for either hearing; Parent was represented by REDACTED, Esq. During the course of the proceedings, the parties moved to extend the case compliance date in this matter, all in order to allow for settlement negotiations and an examination of all relevant witnesses and documents, and to complete the hearing. In considering those requests, I weighed the cumulative impact of the relevant factors and found that, in allowing for adequate time for such purposes, the delays in the resolution of the matter and the extensions of time for such purposes were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The hearing record was closed effective January 10. 2023.

II. Background and Relevant Facts

Student’s last Individualized Education Program (“IESP”) was developed on February 14, 2022 and recommended seven periods per week of group bilingual REDACTED Special Education Teacher Support Services (“SETSS”), as well as Individual bilingual REDACTED Speech Language Therapy, 2 x 30 minutes per week and Individual Occupational Therapy, 2 x 30 minutes per week. (Exh. A). Parent alleges, in her due process complaint, that the REDACTED failed to locate providers to implement the recommendation on the IESP and requests, as relief, enhanced rate and compensatory services. The REDACTED did not appear. Parent provided direct testimony by affidavit, as well as the affidavit testimony of the agency director. (Exh. D and Exh. E). Student has been receiving SETSS services pursuant to a pendency order but has not been receiving either occupational therapy or speech and language therapy. (Transcript).

III. Discussion

FINDINGS OF FACT AND DECISION

An IESP meeting was held on February 14, 2022 and recommended SETSS services, as well as occupational therapy and speech language therapy. (Exh. A). Parent does not disagree with the recommended services, could not locate a provider that would accept the REDACTED’s rate, but could locate a provider who take an “enhanced” rate. (Exh. D). Parent subsequently found an agency that would provide the services, but at a substantially higher rate. (Exh. D, page 2). Further, Parent was unable to locate providers to provide speech and language therapy, even with a pendency order, and requests compensatory services for the entire year, and requests forty hours of compensatory services, based on 2 x 30 minutes per week for forty weeks. (Exh. D, page 2). The agency that Parent “located” charges $195 per hour, despite the limited experience of both the provider and the education supervisor of the agency. The agency claims that the rate includes supervision, support, overhead and professional development, but is unclear about the breakdown of the costs, and how it justifies the rate. (Exh. E, page 1). Services are provided by a teacher who is certified and bilingual as of May 2022. (Exh. H). Parent signed a “contract” on June 3, 2022, prior to the beginning of the school year. The contract provides no information regarding the amount of services or the costs of these services. (Exh. F).

FAPE

The IDEA was enacted to “to ensure that all children with disabilities have available to them a free appropriate public education” (“FAPE”) and to ensure that the rights of children with disabilities and parents of such children are protected.” 20 U.S.C. sec. 1400(d)(1)(A), (B). See also, Forest Grove Sch. Dist. v. T.A., 557 U.S. 2330, 239-40 (2009). Under this statute is the requirement that the education to which access is provided be sufficient to confer some education benefit upon the disabled child. In deciding whether the school district provided as student a FAPE, the inquiry is limited to (a) whether the school district complied with the procedures set forth in IDEA; and (b) whether the student’s IEP is reasonably calculated to enable the student to receive education benefit. Bd. of Educ. v. Rowley, 458 U.S. 176, 179-191 (1982).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE (20 U.S.C.

§ 1415(f)(3)(E)(i)). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction" (Rowley, 458 U.S. at 203). However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP" (Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189). In the recently decided Endrew F. Douglas County School District RE-1, No. 15-827, 2017 WL 1066260, the Supreme Court held that in or order “to 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. Id. At *10. While the statute ensures an "appropriate" education, it does not guarantee "one that provides everything that might be thought desirable by loving parents" (Walczak, 142 F.3d at 132, quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989) (citations omitted); see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132). Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement'" (Cerra, 427 F.3d at 195, quoting Walczak, 142 F.3d at 130 (citations omitted); see T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir.

2008); Perricelli, 2007 WL 465211, at *15). The IEP must be "reasonably calculated to provide some 'meaningful' benefit" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir.

1997); see Rowley, 458 U.S. at 192). The student's recommended program must also be provided in the least restrictive environment (LRE) (20 U.S.C. § 1412(a)(5)(A); 34 CFR 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR 200.1(cc), 200.6(a)(1); see Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 486 Fed. App'x 954 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance (see 34 CFR 300.320(a)(1); 8 NYCRR 200.4(d)(2)(i); Tarlowe v. New York City Bd. of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008) (noting that a CSE must consider, among other things, the "results of the initial evaluation or most recent evaluation" of the student, as well as the "'academic, developmental, and functional needs'" of the student), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum (see 34 CFR 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR 200.4(d)(2)(iii)), and provides for the use of appropriate special education services (see 34 CFR 300.320(a)(4); 8 NYCRR 200.4(d)(2)(v).

BURDEN OF PROOF

The burden of proof is on the REDACTED to show that the provided IEP provided FAPE, except in cases involving a unilateral placement, where the parent must prove the appropriateness of the unilateral placement. N.Y. Educ. Law § 4404(1)(c); see also Application of a Student with a Disability, Appeal No. 12-062; Application of a Student with a Disability, Appeal No. 11-053; Application of a Student with a Disability, Appeal No. 11-091.

The REDACTED did not appear at either hearing and did not submit a notice of appearance or otherwise respond to emails. Therefore, the REDACTED did not meet its burden of proof that the relevant IESP provided Student a FAPE and Parent is entitled to relief.

RELIEF

COMPENSATORY EDUCATION SERVICES

The Supreme Court has held that “equitable considerations are relevant in fashioning relief in any IDEA action. See Burlington, 471 U.S. at 374; see also, Doe, 790 F.3d at 454. Further, although “[a]n award of damages in available… a court may award various forms of retroactive and prospective relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive relief. Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 454(2d

Cir. 2015) (citing Burlington, 471 U.S. at 369; Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002) Compensatory education is an equitable remedy that provides in-kind special education and other related services for denials of a free and appropriate public education (FAPE). Compensatory education is generally defined as educational services above and beyond that normally due a student under his state's education law. Wenger v. Canastota, 979 F. Supp 147, 151 (NDNY 1997); C.G. v. Five Towns Community School District, 513 F.3rd 279 (290) (1st Cir. 2008). Such services are compensation for the education a student would have received “during the periods when his IEP was so inappropriate that he was effectually denied a FAPE.” Reid v. District of Columbia, 401 F.3d 516, 525 (DC Cir. 2005). “[T]he ultimate award [of compensatory education] 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.” Reid ex rel. Reid v. D.C., 401 F.3d516, 524 (D.C.Cir.2005), cited in E. Lyme Bd. of Educ., 790 F.3d at 457. The Second Circuit concluded, “Whatever its precise form, the remedy must be ‘appropriate in light of the purpose of the Act.’ E. Lyme Bd. of Educ., 790 F.3d at 457 (quoting Sch. Comm. of Town of Burlington, Mass. v. Dep't of Educ. of Mass.,471 U.S. 359, 369 (1985)); see also, Burr by Burr v. Ambach,863 F.2d 1071, 1078(2d Cir.1988) (“if, in this case, we do not allow an award of compensatory education, then [the student’s] right to an education between the ages of three and twenty-one is illusory.”) Where a school system fails to provide special education or related services to a disabled Student, the Student is entitled to compensatory education, "i.e., replacement of educational services the child should have received in the first place." Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005). Compensatory education awards can be drafted under two types of approaches: a quantitative approach and a qualitative approach. With a quantitative approach, courts examine the amount of time during which a child has been deprived of a FAPE, and award compensatory services with an eye towards making up that time. See, e.g., M.C. v. Central Regional School District, 81 F.3d 389, 297 (3d Cir. 1996). Under the qualitative approach, the examination should focus on the child’s needs; “some Students may require only short, intensive compensatory programs targeted at specific problems or deficiencies” while “[o]thers may need extended programs, perhaps even exceeding hour-for-hour replacement of the time spent without FAPE.” Reid v. District of Columbia, 401 F.3d 516, 524 (D.C. Cir. 2005). Pursuant to this approach, there must be evidence regarding the child’s “specific educational deficits” resulting from the failure to provide FAPE and “specific compensatory measures” designed to “correct those deficits. Reid, supra at 526.

Parent was unable to locate a provider to provide the mandate of individual bilingual REDACTED Speech and Language Therapy of 2 x 30 minutes per week, Parent requests compensatory services for the time period for the mandate for the 2022-2023 school year. (Exh. D). Parent requests 40 hours of compensatory service for forty weeks of services for one hour per week. As it is a quantitative analysis, and Parent has shown that Student is entitled to fifty hours pursuant to the most recent IESP, I order the REDACTED to fund a bank of forty hours of compensatory bilingual REDACTED speech and language services, less any services provided under the pendency order. Student is also mandated to receive occupational therapy services, but it is unclear from the record whether Parent has or wishes to use these services, so I order the REDACTED to provide Related Service Authorizations for Individual Occupational Therapy, 2 x 30 minutes per week.

ENHANCED RATE SERVICES

Parents request, as relief, $195 per hour for the recommended SETSS services as well as Related Service Authorizations for occupational therapy. (Transcript). Parent has not shown either the reasonableness or justification for her request. Further, Parent has not shown that she obligated herself to payment for seven hours per week of services at $195 per hour, providing only a general form contract with no indication of the amount or rate for services, all of which are being provided by providers with extremely limited experience. Therefore, I order the REDACTED to fund the services at a rate not to exceed reasonable market for a provider with similar experience.

IV. Order

IT IS THEREFORE ORDERED THAT:

• • The REDACTED failed to provide Student a Free and Appropriate Public Education for the 2022-2023 school year.
• • The REDACTED shall provide a bank of forty hours of compensatory individual bilingual REDACTED Speech and Language Therapy to be provided by a licensed provider at a rate not to exceed reasonable market rate, less any services provided under pendency.
• • The REDACTED shall fund seven periods per week of Special Education Teacher Support services for the 2022-2023 school year, less services provided under the pendency order in this case, to be provided by a licensed and/or certified provider, at a rate not to exceed reasonable market rate for providers with similar experience.
• • The REDACTED shall provide Related Service Authorizations for Individual Occupational Therapy, 2 x 30 minutes per week for the 2022-2023 school year.

Dated: January 17, 2023

AUDREY DANIEL, 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 Programs 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 ADMITTED AT HEARING

Parents Evidence

Letter

Date

Name of Document

Number of Pages

A

8/30/2022

DPC

6

B

2/14/2022

IESP

12

C

8/30/2022

TDN

2

D 1/8/2023 Affidavit of Parent 3

E Affidavit of REDACTED 3

F 6/30/2022 Contract 1

G 11/16/2022 Progress Report 3

H Provider Credentials 1 REDACTED None. Impartial Hearing Evidence

None