New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: NYS 581206- NYC: 233107

FINDINGS OF FACT AND DECISION

Case Number: 233107

Student’s Name: REDACTED (“Student”)

Date of Birth: REDACTED

School District: REDACTED

Hearing Requested REDACTED (“Parents”)

Request Date/Date Complaint Filed: 9/6/2022 and consolidated with #REDACTED filed 11/22/2022

Date(s) of Hearing: October 20, 2022, November 7, 2022*, November 9, 2022, November 18, 2022*, December 12, 2022, December 29, 2022

Actual Record Closed Date: January 24, 2023

Date of Decision: January 24, 2023

Hearing Officer: Stephanie Seto, Esq.

*Status Conferences

NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 20, 2022

For the Student:

NONE

For the Department of Education:

REDACTED, Esq., NYC Department of Education (“DOE” or “District”)

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 7, 2022

For the Student:

REDACTED, Esq., REDACTED LLC

For the Department of Education:

REDACTED, Esq., DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 9, 2022

For the Student:

REDACTED, Esq., REDACTED LLC

For the Department of Education:

REDACTED, Esq., DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 18, 2022

For the Student:

REDACTED, Esq., REDACTED LLC

For the Department of Education:

REDACTED, Esq., DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 12, 2022

For the Student:

REDACTED, Esq., REDACTED LLC

For the Department of Education:

REDACTED, Esq., DOE

NAMES AND TITLES OF PERSONS WHO APPEARED ON DECEMBER 13, 2022

For the Student:

REDACTED, REDACTED LLC

REDACTED, Parent

REDACTED, Director, REDACTED Idea Services

For the Department of Education:

REDACTED, Esq., DOE

INTRODUCTION, BACKGROUND AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about September 6, 2022. (P Ex. A)1. On September 27, 2022, I was appointed the Impartial Hearing Officer ("IHO") to conduct an impartial hearing pursuant to the DPC alleges that the New York City Department of Education (the “District” or “DOE”) failed provide the Student with a Free Appropriate Public Education (“FAPE”) as required by the Individuals with Disabilities Education Act (“IDEA”) (20 U.S.C. section 1415, et seq.), Sections 4404(1) and 3602-c of the New York State Education Law (NYS “dual enrollment statute”) and attendant Federal and New York State Regulations against, concerning a dispute between Parent of Student, a disabled Student with the classification of learning disability, and the New York City Department of Education (the "DOE" or “District”) regarding a claim for that the District failed to implement the services for Student mandated for the 2022-2023 school year.

On November 9, 2022, a pendency hearing was held in which parent’s counsel offered an Individual Education Services Plan (IESP) dated March 8, 2022 to be implemented commencing March 22, 2022. Parent sought pendency for services during the 2022-2023 regular school year based on the 2022 IESP that recommended the following: Special Education Teacher Support Services (“SETSS”) direct group service five periods a week, REDACTED (outside of classroom); Speech and Language Therapy (S/L T) four times a week, 1:1, REDACTED for thirty minutes; Occupational Therapy (OT), twice a week for thirty minutes, 1:1; Hearing Education Services (HES), twice a week for thirty minutes, 1:1 (Push in/Pull Out); Assistive Technology (AT) and additional hearing services as follows: H.A.T., to be used daily, formerly known as an F.M. unit, (ii) Audiologist for fit, dispensing and maintenance, and (iii) HES Teacher/Audiologist to train on care and use of H.A.T. unit. P-Ex. B-11-12.

Student is REDACTED old and in second grade at REDACTED (REDACTED). Tr.109; P Ex. B. Student has a disability classification of Hearing Impairment. P Ex. B. Student has cochlear implants in both ears, but the March 2022 IESP indicates Student does not have full hearing abilities bilaterally or on either side and Father described Student as deaf. Tr. 120; P Ex. B. The March IESP indicates that Student has not received consistent Speech and Language Therapy. P Ex. B-2. Student is described as “very anxious” and exhibiting frustration and problems with self-control. P Ex. B-3-5.

Parent’s counsel stated that the DPC solely sought relief related to the implementation of the March 2022 IESP as set forth in the DPC for the 2022-2023 school year. Tr. 21.

The District stated no objection or disagreement that pendency lies in Parent’s Exhibit B, the 2021 IESP. Tr. 22.

This IHO issued a pendency order on November 16, 2022. IHO Ex. I.

On November 18, 2022, the parties discussed the cases they would be putting on with regard to the DPC. Tr. 33-55. Parent’s counsel asserted that the DPC asserted not only claims for the 2022-2023 school year but also compensatory claims for the prior two school years (2020-2021 and 2021-2022) relating to non-SETSS related services. Tr. 37-52. The District objected, stating the DPC did not give notice of the other claims. Tr. 37-52. A review of the DPC indicated that it did not plead claims related to other school years. Further, as noted above, Parent’s counsel at the pendency hearing had stated that the DPC only related to the implementation of the 2022 IESP in the 2022-2023 year. Tr.21, Tr. 37-52. District’s counsel shared via email with the IHO and Parent’s counsel two Findings of Fact and Decision that addressed prior DPCs for the 2019-2020, 2020-2021 and 2021-2022 school years. Tr. 46; see IHO Ex. II, Findings of Fact and Decision Case #REDACTED dated 3/22/22 by IHO REDACTED (“FOFD #REDACTED”) and IHO III, Findings of Fact and Decision Case #REDACTED dated 6/28/22 by IHO REDACTED (“FOFD #REDACTED”). These Two FOFDs addressed only claims for SETSS for the prior 2019-2020, 2020-2021 and 2021-2022 school years.

On November 21, 2022, Parent’s counsel filed an Amended DPC asserting adding the compensatory claims for services (other than SETSS) asserting Student never received the services in the 2020-2021 and 2021-2022 school years. IHO Ex. IV, Amended DPC; IHO Ex. V, Email Exchange Parties 11/21/22-11/22/22. The District indicated via email they would not approve the Amended Complaint. IHO Ex. V. Parent’s counsel indicated that they filed a new DPC with these claims IHO Ex. V.

The new DPC with the 2020-2021 and 2021-2022 claims for compensatory services for non-SETSS related services Parents alleged Student never received in 2020-2021 and 2021 – 2022. IHO Ex. VI, DPC No. REDACTED filed November 22, 2022 (“DPC #2”). Parent sought the same services they had sought to add in the Amended Complaint, i.e. compensatory services based on related services in Student’s previous IESP for the 2019-2020 school year that mandated Speech and Language Therapy (S/L T), 4 x 30; Occupational Therapy (OT) and an FM Unit for use daily full time. IHO Ex. VI. DPC #2 asserted that the prior due process complaints resolved by FOFD #REDACTED and FOFD #REDACTED did not address the District’s failure to implement the related services other than SETSS. IHO Ex. VI, DPC #2, p.1.

On December 12, 2022, the parties appeared for a hearing and Parent’s counsel informed the IHO that DPC #2 had been filed. Tr. 62. DPC #2 had not been assigned to this IHO at that time. At the December 12 hearing this IHO was advised that this matter was not going to resolve, and the matter was set down for a hearing date on the merits on December 29, 2022. After the December 12, 2022, hearing, DPC #2 was assigned to this IHO. Due to the fact the issues involved different years and a hearing was already set in this matter, the IHO declined to consolidate the matters in order to move forward to hearing expeditiously. IHO Ex. VII, First Consolidation Order dated December 27, 2022.

At the hearing on December 29, 2022, District did not present a direct case and Parent’s Advocate REDACTED (“REDACTED”) put on two witnesses, REDACTED (“REDACTED”), Director of REDACTED (“REDACTED”) and REDACTED, Father of Student (“Father”). There was no dispute between the parties that Student was entitled to the services mandated in Student’s March 2022 IESP during the 2022-2023 school year: Special Education Teacher Support Services (“SETSS”) direct group service five periods a week, REDACTED (outside of classroom); Speech and Language Therapy (S/L T) four times a week, 1:1, REDACTED for thirty minutes; Occupational Therapy (OT), twice a week for thirty minutes, 1:1; Hearing Education Services (HES), twice a week for thirty minutes, 1:1 (Push in/Pull Out); Assistive Technology (AT) and additional hearing services as follows: H.A.T., to be used daily, formerly known as an F.M. unit, (ii) Audiologist for fit, dispensing and maintenance, and (iii) HES Teacher/Audiologist to train on care and use of H.A.T. unit for the 2022-2023 school year. Tr. 100-101. District disputed the enhanced rate sought by Parent for the SETSS services implemented by Parent with REDACTED for the 2022-2023 school year. Tr. 100; P Ex. C, E and F.

REDACTED testified that REDACTED had provided SETSS services at the enhanced rate of $235.00 an hour to Student from on or about September 15, 2022 through a New York State Certified Special Education Teacher certified Birth through 2nd grade, REDACTED(“REDACTED”) who was “guided” by a REDACTED supervisor, REDACTED (“REDACTED”), licensed as a school building leader. Tr. 106-112; P Ex. C, F- ¶ 4.. REDACTED testified that REDACTED had no specific training working with hearing impaired students; nor did REDACTED testify that REDACTED had any training or experience specific to hearing impaired students. Tr. 111. REDACTED testified on direct and cross, that the amount charged $235.00 was the market rate for SETTS based upon a market survey of competing services provider agencies in the area. Tr. 105-106;P Ex. E, ¶.7. On further questioning by this IHO, REDACTED testified that the amount paid to REDACTED by REDACTED and the amount of $235.00 per hour charged under the Contract with Parent that REDACTED was higher than REDACTED’s normal rate of $225.00 due to the difficulty of Student’s case as working with Student was more involved due to Student’s significant hearing issues and that it was harder to place Student with a provider because of this issue. Tr. 109 -115. REDACTED testified REDACTED was not providing any of the other related services mandated on Student’s 2022 IESP but had the capacity to do so. Tr. 113; P Ex. E.

Parent testified that he chose to implement the SETSS services mandated in the 2022 IESP when the District did not implement the services for the 2022-2023 school year and entered into a contract with REDACTED for the services to be provided at $235.00 per hour. Tr. 118-119P Ex. C and F. Father testified he did not implement all of the mandated services, although the District failed to implement any of the mandates in the March 2022 IESP because he could not afford to and after a discussion with the school principal and Student’s teacher he determined that SETSS would be most important to implement. Tr. 122-125.

At the end of the December 29, 2022 hearings on the merits, “closing statements” were made by Parent’s advocate REDACTED and District’s counsel, REDACTED (“REDACTED”). Tr. 126-136. REDACTED addressed only that the SETSS rate sought should not be granted as too high and the testimony was unreliable; there was no discussion of Student’s other related services that there had not been a dispute were mandated and unimplemented. Tr. 100, 126-127. REDACTED sought an order directing the District pay for Parent’s privately contracted SETSS services and a bank of compensatory hours for the entirety of the 2022-2023 school year to be used over the next two years for all other related services with a provider(s) of Parent’s choice at an enhanced rate to be determined by the Implementation Unit of the DOE. Tr. 127-131, 134. REDACTED clarified the District would not object to an enhanced market rate awarded for the other related services. Tr. 132.

On January 12, 2023 REDACTED wrote to the IHO and REDACTED requesting additional hearing date(s) and submission of subpoenas and subpoena duces tecum following the publication of an article in the REDACTED Article published that morning with a link to the REDACTED, REDACTED announcement that REDACTED had been indicted along with other individuals for fraud and theft of public monies (amongst other claims) for stealing millions of dollars of government funds for fake educational services and programs billed by firms owned or operated by REDACTED, REDACTED and the others indicted. IHO Ex. VIII, 31 Emails between Parties and IHO from January 12 -24, 2023 (see Email #1-1/12/23). A motion submission schedule was agreed upon for submission of the Subpoena and the Subpoena Duces Tecum and memorandums of the parties. IHO Ex. VIII, See Emails #11-17, 1/13/2023). On January 19, 2023, Parent’s advocate REDACTED(“Ms.”) requested to withdraw the DPC without prejudice and also that Parent believed they should hire an attorney. IHO Ex. VIII, Email #19, 1/19/2023.^[1] The District opposed the matter be terminated without prejudice and only agreed to a withdrawal with prejudice. IHO Ex. VIII, Email # 20, 1/19/2023. This IHO explained that a termination without prejudice would not be appropriate at the stage of proceedings as hearings on the merits had commenced and testimony on the merits of the claim had been given. IHO Ex. VIII, Email # 21-24, 1/19-20/2023.

Considering the substance of the testimony at the December 29, 2022 hearing and the Parent’s claims regarding Student’s lack of hundreds of hours of Speech and Language Therapy and hearing services in between claims the DPC herein and DPC #2, this IHO determined that consolidation of the two DPCs was appropriate and issued a second consolidation order consolidating the two DPCs. IHO Ex. IX, Second Consolidation Order dated January 19, 2023. This IHO informed the parties of the Consolidation Order, motion practice was not necessary and additional hearings would be required due to the consolidation. IHO Ex. VIII, Email #21, 1/19/2023.

Parent’s advocate reiterated that Parent wanted to withdraw both cases (now consolidated) without prejudice) and refile at a later date and District opposed. IHO Ex. VIII, Emails #22-27, 1/20-22/2023.On January 23, 2023 by email, this IHO offered the following options: 1. Parent withdraw the SETSS claim on the record that they were not pursuing the SETSS claim any longer and hearings held on the remaining claims of the non-SETSS related services for all years with issuance of an FOFD on the merits of the related services claims and a finding the SETSS claim for 2022-2023 waived; 2. a split order of termination terminating with prejudice the SETSS claim and the other related service claims for all years without prejudice; 3. If requested by either party pursuant to 8 NYCRR 200.5(j)(6), a hearing where each party could argue their position on termination with or without prejudice. IHO Ex. VIII, Email #28, 1/23/2023.

In response, Mr. REDACTED sent an email reiterating District’s position that the case should be terminated with prejudice, and he attached four items FOFD #REDACTED (IHO Ex. II) and FOFD #REDACTED (IHO Ex. III) previously provided in November when Parent had requested to amend the DPC and also the corresponding DPCs, DPC #REDACTED (IHO Ex. X) and DPC #REDACTED (IHO Ex. XI). IHO Ex. VIII, Email #29, 1/23/2023. These DPCs evidenced that Parent had previously brought the same claims seeking compensatory relief regarding the non-related SETSS services for years 2020-2021 and 2021-2022. Compare IHO Ex. X and XI and IHO Ex. VI, DPC #2.

Upon review of the DPCs and FOFDs in cases #REDACTED and #REDACTED, I stated that the evidence indicated that Parents had waived their right to a substantive determination of the claims that were asserted in DPC #2 (now consolidated in this action) and were barred by res judicata unless Parent had further evidence. IHO Ex. VIII, Email #30, 1/23/2023. I indicated that I was troubled by a withdrawal with prejudice regarding the undisputed claim that Student’s mandated non-SETSS services for 2022—2023 school year had never been implemented, and to date Student had not received those services during this school year and was inclined to issue an Finding and Fact and Decision regarding this issue based upon the existing record and dismiss with prejudice the remaining claims. IHO Ex. VIII, Email #30, 1/23/2023.Parent’s advocate responded the next day that the Parents would want a determination concerning the request for compensatory related services (non-SETSS) for the 2022-2023 school year and that Parents sought to withdraw the other claims with IHO’s discretion as to with or without prejudice. IHO Ex. VIII, Email #31, 1/24/2023.

The list of documentary evidence in this proceeding is appended to this Order. The compliance date for issuing a decision in this proceeding was extended for the Parties due to attempts to settle, witness availability and the issues raised by the District on motion at the parties’ request.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. November 8, 202§ 300 et seq., and the New York State Education Law, Educ. Law § 4404 et seq., and Educ law §3602-c and implementing regulations, 8 NYCRR § 200.5 et seq.

FINDINGS OF FACT

Student is REDACTED and in second grade at REDACTED (REDACTED). Tr.109; P Ex. B. Student has a disability classification of Hearing Impairment. P Ex. B. Student has cochlear implants in both ears, but the March 2022 IESP indicates Student does not have full hearing abilities bilaterally or on either side and Father described Student as deaf. Tr. 120; P Ex. B. The March IESP indicates that Student has not received consistent Speech and Language Therapy. P Ex. B-2. Student is described as “very anxious” and exhibiting frustration and problems with self-control. P Ex. B-3-5.

It is undisputed that Student has not received any non-SETSS related services mandated in his March 2022 IESP during the 2022-2023 school year. Tr. 100, 126-127. The March 2022 IESP recommended the following: Special Education Teacher Support Services (“SETSS”) direct group service five periods a week, REDACTED; Speech and Language Therapy (S/L T) four times a week, 1:1, REDACTED for thirty minutes; Occupational Therapy (OT), twice a week for thirty minutes, 1:1; Hearing Education Services (HES), twice a week for thirty minutes, 1:1 (Push in/Pull Out); Assistive Technology (AT) and additional hearing services as follows: H.A.T., to be used daily, formerly known as an F.M. unit, with (i) Audiologist for fit, dispensing and maintenance, and (iii) HES Teacher/Audiologist to train on care and use of H.A.T. P Ex. B.

Parent testified Student had a hearing unit in school although it is unclear what type he has as previously he was recommended for an F.M. unit. IHO Ex. X and XI,. In the 2022 IESP the assistive technology was changed to H.A.T. with additional services Audiologist for fit, dispensing and maintenance, and (iii) HES Teacher/Audiologist to train on care and use of H.A.T. P Ex. B.

Student’s March IESP indicates a persistent failure of Student to receive consistent speech and Language Therapy in prior school years and Parents raised this issue in prior DPCs that were fully litigated. See P Ex. B.; IHO Ex. II-III, X-XI.

CONCLUSIONS OF LAW

New York Law Extend Educational Services to Children with Disabilities Parentally Placed in Nonpublic School Under N.Y. Ed. Law § 3602-c.

The IDEA provides children with disabilities are entitled to a Free Appropriate Public Education ("FAPE") (20 U.S.C. § 1400 (d)(1)(A). FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written IEP (34 C.F.R. § 300.13). The purposes of the IDEA 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) ensure that the rights of students with disabilities and parents of such students are protected. (20 U.S.C. § (d)(1)(A-B); See Forest G. v. T.A., 129 S. Ct. 2484, 2491 (2009); Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA, and (b) the IEP is developed through the IDEA's procedures is reasonably calculated to enable the Student to receive educational benefits. Id. To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances” Endrew F. v. Douglas County Sch. Dist. RE-1, No 15-827, 2017 WL 1066206, 137 S.Ct. 988, 69 IDELR 174 (U.S. March 22, 2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the Student's right to a FAPE. 8 NYCRR § 200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000).

The failure of a school district to provide a FAPE for a disabled student may arise out of substantively inadequate or inappropriate IEP and/or placement. Bd. Of Educ. v. Rowley, 458 U.S. at 192) and/or procedural inadequacies that (i) "impeded the student's right to a free and appropriate education," (ii) "significantly impeded parent's opportunity to participate in the decision-making process regarding a free and appropriate public education to parent's child" or (iii) "caused a deprivation of educational benefits." 8 N.Y.C.R.R. § 200.5(j)(4)(ii).

Under New York State Education Law § 3602-c (“3602-c”), unlike the provisions of the IDEA, parents of students with a disability, who have privately enrolled their child in a nonpublic school, may seek to obtain educational “services “for the Student by filing a request for services in the district of location where the nonpublic school is located. See 3602-c. Parents 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.. In accordance with this law, the District’s CSE must review the request for services and develop an IESP for a student the request has been made for based upon the Student’s individual needs in the same manner and with the same contents as an IEP. See, N.Y.S. Ed. Law § 3602-c(2)(b)(1); Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c, Memorandum from James P. DeLorenzo, re: Chapter 378 of the Laws of 2007, New York State Education Department, Sept 2007 (“Guidance Memo on 3602-c”) https://www.p12.nysed.gov/specialed/publications/policy/documents/chapter-378-laws-2007-guidance-on-nonpublic-placements.pdf.

Under § 3602-c(2)(b)(1), the committee on special education (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 [emphasis added] as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.” Included in the definition of “services” under § 3602-c(1)(a) is “education for students with disabilities, and counseling, psychological and social work services related to such instruction provided during the regular school year for pupils enrolled in a nonpublic school located in a school district, provided that such instruction is given to pupils enrolled in the public schools of such district.” The Guidance Memo on § 3602-c advises that services covered by this section of the law are limited to those services provided in programs operated during the course of “the regular school year” and not summer programs. Guidance Memo on 3602-c, p. 14.

“Equitable basis” means services provided to students with disabilities in parentally placed private schools in the same manner and range as compared to students with disabilities attending public or NYS-approved nonpublic schools located within the same school district, considering “need” and the Student’s placement in the nonpublic school program. Guidance Memo on 3602-c, pp. 10-11. A school district is “not required to provide greater services to a nonpublic student then a public-school student would receive under the Rowley standard.” Id., at pp. 11-12.

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.

The statutory scheme of Education Law § 3602-c places the responsibility on Parents to contact the District each year by June 1 to inform the District Student is continuing to be placed in the parentally placed school and Student needs an IESP.

While the statutory scheme of NYS Education Law § 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 as far 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.” See § 3602-c; see also, Application of Student with a Disability, SRO Appeal 16-008. The decisions of the State Review Officers, while not binding, have repeatedly found that a school district in New York is required by law to locate and assign a student publicly provided teachers or services providers for dually enrolled students under N.Y. Ed. Law § 3602-c(2)(a). The SRO decisions have repeatedly found that it may 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, but it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted permanently to the parent. See, SRO Appeal 16-008; Application of a Student with a Disability, SRO Appeal No. 20-042; Application of a Student with a Disability, SRO Appeal No. 20-094;Application of a Student with a Disability, SRO Appeal No. 20-141; Application of a Student with a Disability, SRO Appeal No. 21-101; Application of a Student with a Disability, SRO Appeal No. 21-119.

Districts providing services to non-resident pupils may recover tuition from a district of residence in accordance with the NYS Commissioner’s formula pursuant to regulation; average daily attendance of nonpublic students receiving services pursuant § 3602-c shall be included in such computations of costs to be recovered as delineated in § 3602-c and pursuant to Federal and State Law and regulation. See § 3602-c(1)(7) and (8); see also, Guidance Memo on 3602-c. Related to such computations, § 3602-c defines “average daily attendance” as tied to the number of days the public school was in session for each attendance period and the number of classes operated by the public school during the school day in relevant time period. 3602-c(1)(e)

Section 3602-c is limited to a provision of programs or services during the course of the “regular” school year. See 3602-c(1)(a). The Guidance Memo on 3602-c providing guidance on a district’s obligations under 3206-c indicated that districts are not required to provide dual enrollment services to students with disabilities during the summer. Guidance Memo on 3602-c, p.14. Therefore an IESP can only be for ten months per statutory law. See also, R. G. v. NYC Dep’t. of Educ., 18 cv-11219 (S.D.N.Y. January 24. 2022); SRO Appeal No. 20-094; Questions and Answers on Individualized Education Program (IEP) Development, The State's Model IEP Form and Related Documents," at pp. 39-40, Office of Special Ed. [Apr. 2011], http://www.p12.nysed.gov/specialed/formsnotices/IEP/training/QA-411.pdf.

The New York City Department of Education School year calendar for the regular school year for 2021-2022 had approximately 180 instructional days complying with New York state law and ran from September 13, 2021 through June 27, 2022. See https://cdn-blob-prd.azureedge.net/prd-pws/docs/default-source/default-document-library/doe-calendar-sy-21-22.pdf; see also, N.Y.S. Ed. Law. § 3604 and 8 NY RRR § 175.5. The New York State Regulations states a “school day” shall have the “the same meaning for all students in school including students with disabilities and students without disabilities.”

Burden of Proof

Except for in circumstances related to unilateral placements, the burden of proof entirely is on the school district during an impartial hearing, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement. NYS 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. August 27, 2010]). A parent’s placement in a program that is at an “enhanced rate”, or greater services or different services then recommended in the Student’s IESP (even if services not implemented by the District) are subject to a Burlington/Carter analysis as a unilateral placement according to numerous NYSED SRO decision.

Compensatory Services

An award of compensatory services should be tailored to meet the unique circumstances of each case. Wenger v. Canastota, 979 F. Supp. 147 (N.D.N.Y. 1997). A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of FAPE. P. v. Newington Bd. of Educ., 546 F. 3d 111, 123 (2d Cir. 2008); E. M. v. N. Y. City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014).

The award of compensatory education is an equitable remedy that "should aim to place disabled children in the same position they would have occupied but for the school district's violation of the IDEA." Reid v. District of Columbia, 401 F.3d 516, 523 (D.C. Cir. 2005). The “inquiry must be fact-specific, and to accomplish IDEA’s purposes, the ultimate award 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.” Id. at 524. Compensatory education is "replacement of educational services the child should have received in the first place." Id. at 518; see also, Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015).

An award of compensatory services may be appropriate if there has been a violation of the IDEA resulting in the denial of appropriate services, usually for a gross violation, for an extended or substantial period of time and if such deprivation of instruction can be remedied through the provision of additional services before the Student becomes ineligible for instruction by reason of age or graduation. Id.; French v. New York State Dep’t of Educ., 476 Fed. App’x 468, 471 (2d. Cir. 2011);Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 (2d Cir. 2008); Burr v. Ambach, 863 F.2d 1071, 1078-79 (2d Cir. 1988), aff’d on reconsideration, Burr v. Sobol, 888 F. 2d 258 (2d. Cir. 1989); Mrs. C v. Wheaton, 916 F.2d 69, 75-76 (2d Cir. 1990); Cosgrove v. Bd. of Educ. of Niskayuna Cent. Sch. Dist., 175 F. Supp. 2d 375, 387 (N.D.N.Y. 2001.). Compensatory education may be awarded to students under the age of twenty-one. Student X. v. New York City Dep't of Educ., 2008 WL 4890440 (E.D.N.Y. October 30, 2008). Compensatory education awards should be designed to "appropriately address the problems with the IEP" and designed to “make up for” a denial of FAPE and place student in the position they would have been in if not for the denial of FAPE. Newington, 546 F.3d at 123; Reid, 401 F.3d at 524.

There are two approaches to fashioning a compensatory education award, a "quantitative approach" (see M.C. v. Cent. Reg' l Sch Dist., 81 F.3d 389 (3d Cir. 1996)) or "qualitative approach," i.e., "a flexible approach, rather than a rote hour-by-hour compensation award" (see Bd. of Educ of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007); see also, Reid, 401 F.3d at 518. An IHO may order an escrow account or “trust fund” also referenced as a “bank” of compensatory hours/funding for compensatory education and services. Doe v. E. Lyme Bd. of Educ.,962 F. 3d 649 (2d Cir. 2020); Doe v. E. Lyme Bd. of Educ., 790 F. 3d 440 (2d Cir 2015); Streck v Bd. of Educ. Of E. Greenbush Cent. Sch. Dist., 408 F. App’x 411 (2d. Cir. 2010).

A presently appropriate educational program does not abate the need for compensatory education. D. W. v. District of Columbia, 561 F. Supp. 2d 56, 61 (D.D.C 2008), citing Flores ex rel. J.F. v. District of Columbia, 437 F. Supp. 2d 22, (D.D.C. 2006). Compensatory education must be needed, and the purpose of compensatory education is results based. If a Student does not need additional compensatory education even if a denial of FAPE is shown, “”[i]t may be conceivable that no compensatory education is required for the denial for a [FAPE] …either because it would not help or because [the Student] has flourished in his current placement.” Phillips v. District of Columbia, 2010 WL 3563068 at *6, 55 IDELR 101 (D. D.C. 2010), citing Thomas v. District of Columbia, 407 F. Supp. 2d 102, 115, (D.D.C 2005); see also, Gill v. District of Columbia, 55 IDELR 191 D.D.C. 2010) (“The Court agrees that there may be situations where a student who was denied a FAPE may not be entitled to an award of compensatory education, especially if the services requested, for whatever reason, would not compensate the Student for the denial of FAPE.”). A Student is not entitled to a compensatory award just because there was a denial of FAPE. Phillips, WL 3563068 at *6.

Both Parties must offer their view of the special education needs with regard to compensatory education into the hearing record. See N.Y. Ed. Law § 4404(1)(c); M.M. v. New York City Dep’t of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. Mar. 30, 2017).

ANALYSIS

Parents’ Claims for Funding of SETSS for the 2022-2023 and Compensatory Services for All (Non-SETSS) Related Services Asserted for the 2020-2021 and 2021-2022 School Years Were Withdrawn By Parents and Are Denied as Dismissed or Terminated With Prejudice.

Parents stated they wish to withdraw the claims related to funding for SETSS for the 2022-2023 school year and Compensatory Services for All (Non-SETSS) Related Services Asserted for the 2020-2021 and 2021-2022 School Years. I find it appropriate to find Parents now waive their right to determine these claims fully.

As there has been testimony regarding the claim seeking the District fund SETSS Parents asserted they implemented unilaterally to date during the 2022-2023 school year it would be inappropriate to allow this claim to be brought again as it would be prejudicial to District and not in the interests of judicial economy. Therefore, I find that the Parents, by withdrawal of this claim but requesting the IHO continue with a full Finding of Fact and Decision, have waived this claim and it is now dismissed and terminated with prejudice due to Parents’ request for withdrawal.

As to the claim for a compensatory bank of services for two school years (2020-2021 and 2021-2022) of Speech and Language Therapy (S/L T), 4 x 30; Occupational Therapy (OT) and an FM Unit for use daily full time. Parent has already adjudicated or waived this issue as these claims are identical to claims asserted in prior due process complaints covering years 2019-2020, 2020-2021 and 2021 -2022 that resulted in two unappealed FOFDs. Therefore, Parents are barred by res judicata. See P Ex. B.; IHO Ex. II-III, X-XI. Furthermore, Parents have requested these claims also be withdrawn and therefore, I find Parents are not entitled to a further decision on these claim, by seeking a withdrawal herein and have waived these claims. I deny the claims and dismiss and terminate the claims with prejudice.

Award of A Bank of Compensatory Hours Of Mandated Related Services (Other Than SETSS) in the March 2022 IESP.

Parent requests a bank of compensatory hours equivalent to the amount of mandated hours of services Student is entitled to during the 2022-2023 School Year for the following: Speech and Language Therapy (S/L T) four times a week, 1:1, REDACTED for thirty minutes; Occupational Therapy (OT), twice a week for thirty minutes, 1:1; Hearing Education Services (HES), twice a week for thirty minutes, 1:1 (Push in/Pull Out); Assistive Technology (AT) and additional hearing services as follows: H.A.T., to be used daily with (i) Audiologist for fit, dispensing and maintenance, and (ii) HES Teacher/Audiologist to train on care and in use of H.A.T. unit.

There is no dispute that the above related (non-SETSS) services as described and mandated in Student’s 2022 IESP have not been implemented for the 2022-2023 school year. Further, the District does not deny Student is entitled to such compensatory relief or dispute the request that such a bank be granted for the 2022-2023 school year at an enhanced market rate.

Although the 2022-2023 school year has not terminated, the evidence supports the District has been habitually remiss in failing to provide these related services to Student who has a haring disability of deafness. This is not only a violation of the New York State Education Law and denial of FAPE, but although not asserted before me, the prolonged failure to provide some if not all of these related services related to Student’s disabilities would most likely be a violation of Federal Laws requiring accommodations for persons with disabilities, such as Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA).

Due to this prolonged failure and the fact that District does not dispute the failure or the Parent’s requests for relief, I order that the District must fund a bank of compensatory services to compensate for District’s failure during the 2022-2023 as follows: 144 thirty (30) minute sessions of Speech and Language Therapy sessions (or 72 hours total), 1:1, REDACTED; 72 thirty 30 minute sessions of Occupational Therapy (OT),1:1, (or 36 hours total);72 thirty (30) minute sessions of Hearing Education Services (HES), 1:1 (or 36 hours total); Assistive Technology (AT) and additional hearing services as follows: (i) Provision of a H.A.T unit, to be used daily, (ii) all hours necessary for an Audiologist for fit, dispensing and maintenance of the H.A.T unit and (iii) all additional hours necessary with HES Teacher/Audiologist to train on care and use of H.A.T. unit. The hours for fit, maintenance and training regarding the H.A.T. unit not to be limited by the District. Parents may choose all providers for services granted in the bank, and the District shall fund the services and equipment at an enhanced market rate such rates to be capped by the lowest amount paid by the District to the same agency or provider for substantially comparable services during the past twelve months. The compensatory bank must be used by December 31, 2024.

ORDER

IT IS HEREBY ORDERED that the Parents’ request for relief in the form of funding for SETSS for the 2022-2023 school year and the request for a bank of compensatory hours for related services for the 2020-2021 and 2021-2022 school years are denied and dismissed and terminated with prejudice;

IT IS FURTHER ORDERED the DOE will fund a bank of compensatory hours for related services and provision of Assistive Technology and the fit, dispensing, maintenance and training for such Assistive Technology as follows:

• • One hundred and forty-four (144) thirty (30) minute sessions of Speech and Language Therapy (or 72 hours total), 1:1, REDACTED;
• • Seventy-two (72) thirty (30) minute sessions of Occupational Therapy (OT), 1:1, (or 36 hours total);
• • Seventy-two 72 thirty (30) minute sessions of Hearing Education Services (HES),1:1 (or 36 hours total);

(iv) Assistive Technology (AT) and additional hearing services as follows:

• • Provision of a H.A.T unit, to be used daily,
• • All hours necessary for an Audiologist for fit, dispensing and maintenance of the H.A.T unit; and
• • All additional hours necessary with HES Teacher/Audiologist to train on care and use of H.A.T. unit.
• • IT IS FURTHER ORDERED that the above ordered bank of compensatory services and provision of Assistive Technology is to be used and funded up until December 31, 2024.

SO ORDERED

DATED: January 24, 2023

_________________________

Stephanie Seto, 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.

APPENDIX A – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

Exhibit

Document

Date

Pages

A

DPC

9/6/22

4 pages

B IESP 73/8/22 14

C Parent Agreement with REDACTED 8/18/22, 2

D Prior Written Notice 8/31/22 1

E Affidavit of Testimony REDACTED of REDACTED 12/27/22 4

F

Affidavit of REDACTED

12/27/22

2

IHO EXHIBITS

• • Pendency, November 16, 2022, 10 pp.
• • Findings of Fact and Decision Case #REDACTED dated 3/22/22, pp. 22.
• • Findings of Fact and Decision Case #REDACTED dated 6/28/22, pp. 19.
• • Amended DPC Not Granted, dated 11/21/22, pp. 6.
• • Email Exchange Between IHO Parties 11/21/22-11/22/22 p. 3.
• • DPC No. REDACTED filed November 22, 2022; pp. 6
• • First Consolidation Order dated December 27, 2022, pp.3.

VIII. 31 Emails between Parties and IHO from January 12 -24, 2023, 30 pp.

• • Second Consolidation Order dated January 19, 2023, 4 pp.
• • DPC #REDACTED, 9/5/2021, 6 pp.
• • DPC #REDACTED, 9/5/2021, 6 pp

Footnotes

[1] Although Ms. REDACTED indicated Parent wanted to hire an attorney as new representation; REDACTED continued to represent Parent and there was no withdrawal of representation or substation of new counsel.