New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Record Close Date: July 14, 2023

Hearing Requested by: Parent

Dates of Hearing:

10/31/22

12/7/22

12/19/22

2/15/23

2/24/23

3/30/23

5/4/23

Hearing Officer: Israel S. Wahrman, Esq.

Background and Positions of the Parties

On September 19, 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: October 31, 2022 (prehearing conference), December 7, 2022, December 19, 2023, January 13, 2023, February 15, 2023, February 24, 2023, March 30, 2023 and May 4, 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, although the parent also asked that the program recommended in the independent educational evaluation be applied retroactively to the 2020-21 school year. The district did not make any arguments, put any documents into evidence or present witnesses. The district did not put on any case at all. In fact the district did not appear at all for the scheduled hearing dates. The parent view is that the seven periods of SETSS that the student’s IESP of 4/13/22, Exhibit B, recommends was inadequate, as seen by the recommendation of the neuropsychological evaluation. Exhibit E. (Seven periods per week of SETSS was also recommended in the IESP of 10/28/20. Exhibit D. ) The district never provided the SETSS services at all for 2022-23, leaving the parent to arrange to obtain the services through an agency. The parent seeks funding for the services from that agency either at the rate the agency charges, $190 per hour, or at a “reasonable market rate.” Tr. 62-62, Exhibit

F. The parent also seeks compensatory services for both the 2022-23 school year and for the prior school year, 2021-22 for the difference between what was recommended and provided and ten hours of SETTS. That is, the parent view is that seven hours was insufficient, as the student should have received 10 hours per week, rather than only seven hours, as recommended by the IESP. The parent view is that compensatory funding should include funding for services during the prior school year, 2021-22. Exhibit A. As explained in the parent side’s opening statement, “ what we are looking for is for the IEE recommendations of ten periods per week of SETSS and related services be retroactive to the beginning of the 21/22 school year. And any services not provided, as far as the difference between services provided and services that should have been recommended, be provided as compensatory hours for use over the next school years on weekends, holidays, summer, et cetera.” Tr. 48.

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.)

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.

Furthermore, the Draper court explained that IDEA does not “foreclose a compensatory award of placement in a private school.” And when such an award is considered, the parent is “not required to prove that the School System was incapable of providing … an appropriate education.” Ibid., at 1286.

With the DOE having the burden of proof and having failed to make a single argument or present evidence with regard to having offered a FAPE that runs counter to the claims made by the parent in the request for a hearing, Exhibit A, I must conclude and I find that the district failed in its obligation of providing for a free and appropriate education.

The evidence here, as seen in the recommendations in the neuropsychological evaluation of this student, supports the view that 10 periods were needed, not seven periods. Based on the evaluation, it was recommended that this student receive 10 periods a week of SETSS, not the 7 periods found in the IESP of 10/28/20. Exhibit E11. The neuropsychological evaluation was conducted in October of 2021 but the report was dated February 28, 2022. Exhibit E-1. While the evidence supports ten periods, not seven periods of bilingual Yiddish SETSS that the IESP mandated, the district was only put on notice of this need for more SETSS as of March 1, 2022, when it appears the parent turned this evaluation over to the district. Exhibit A2. In the evaluation, 10 periods of SETSS was recommended going forward but there was no mention of a need for additional SETSS to make up for the amount of services that were offered in the past. Exhibit E11. And no evidence was presented at the hearing regarding what was provided during 2021-22 and whether this amount of service appeared to be adequate at that time or not. So I am ordering that compensatory services, i.e., for the 3 period difference between the seven hours that was mandated and the ten that it appears were needed, to cover the time period as of March, 2023, after the independent evaluation report was received. So as compensatory services, for missing SETSS during the 2022-

23 school year. the student should be given a bank of hours, based on a formula of three hours per week, for four months of school. I am therefore ordering 48 hours of compensatory special education tutoring or SETSS.

Comparing the frequency of services, as recommended in the IESPs from October 2020 and April 2022. Exhibits D and B, respectively: Speech and language services remained at three times per week; while counseling went from twice per week to three times per week. The evaluation recommended continuing speech at three times per week and counseling at twice per week. Exhibit E11. But the IESP of April 2022 recommended counseling three time per week. As I have no information with regard to how much counseling was provided, nor do I have information regarding whether not providing a third counseling session (if this was even the case) would have caused any harm, I am not ordering any compensatory relief with regard to related services.

With regard to the payment rate for the SETSS that the parent arranged, I am ordering payment for the SETSS, as requested by the parent, at reasonable market rate, to cover the 7 periods per week of SETSS that were arranged by the parent.

Order

The district shall fund 48 hours of compensatory SETSS, at reasonable market rate. In addition, the district shall pay for the SETSS that the parent arranged and were in fact provided, during the 2022-23 school year, at reasonable market rate.

Dated: July 18, 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.