Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 594728

Record Close Date: September 12, 2023 Hearing Requested by: Parent Dates of Hearing: 2/21/23 – prehearing conference

3/28/23 3/29/23

4/24/23

6/2/23

6/28/23

Hearing Officer: Israel S. Wahrman, Esq.

Background and Positions of the Parties

On January 13, 2023, I was appointed by the School District as Impartial Hearing Officer (IHO), pursuant to the Individuals with Disabilities Education Act (IDEIA), 20 U.S.C. ϸ 1415 (b) (2) in this matter. I am certified as an Impartial Hearing Officer by the University of the State of New York, Education Department. A preconference was held on 2/21/23. The hearing took place on the following dates: 3/28/23, 3/29/23, 4/24/23. 6/2/23 and 6/28/23. Extensions of the compliance date were granted by this IHO due to availability of witnesses, time for getting transcripts, for the parties to write their closing documents and for writing the decision by this IHO.

This hearing request, for Case No. 594728, was filed on January 9, 2023, Exhibit 1, by the parent. The parent filed an additional hearing request, Case No. 598792, on April 25, 2023. IHO Exhibit IV. As the two hearing requests were closely related, I issued an order consolidating the two cases on May 1, 2023. IHO Exhibit III.

In the combined case, the parent has made the following allegations. In the first hearing request, the parent alleged that this student was “abused by various staff at …[his school] since 3/3/22.” As relief the parent requests reimbursement for the cost incurred as a result of the parent’s pulling the student from his school and instead arranging for home schooling. The parent also asked for the provision of “special education services that were missed [during the time that the student was homeschooled, specifically in the areas of OT, PT and speech.” Exhibit 1. In the second hearing request, which is now consolidated and therefore now considered part of Case No. 594728, the parent alleged that the school district, as a result of an incident in which she alleged an “audio was removed from … [this student’s] pocket, ” school personnel retaliated against this student and the school district allegedly “fabricated” “many events.” She further asserted that this student was “unjustly restrained by staff and abused …” As relief to address the allegations raised in the second hearing request, the parent requested “some type of disciplinary action …[as well as] a public apology” to her family. IHO Exhibit IV.

With regard to the various allegations raised in the now combined hearing request, my authority as an impartial hearing Officer allows me to address whether a free and appropriate education (FAPE) was provided for this student during the period of time that is covered by this hearing request, and I have the authority to order relief to address any failure to provide an appropriate education that may have occurred. I do not have authority to discipline public school personnel. My inquiry as the IHO therefore is to determine if the facts pertaining to the parent’s allegations substantiate that there was a denial of FAPE that was attributable to the alleged abuse and bullying of this student by the by the school district and if so, what would be appropriate relief to address this situation. While the school district has the legal burden of showing that the educational program that it offered was appropriate, in this case, this need only be done with regard to whether the alleged abuse or bullying, if it occurred, had a deleterious effect to the point of making the educational program offered inappropriate, as these were the only issues raised by the parent with regard to the adequacy of the educational program offered. Also, as the parent set up an alternative educational program for which she seeks payment, the parent would need to show that the program that she arranged was appropriate.

The school district’s position is that the alleged abuse or bullying never occurred. The district’s position is that it offered and provided an appropriate education while this student was in attendance but that the home-schooling as arranged by the parent was “woefully inadequate” and likely resulted in a “decline in … [this student]’s performance on various functional and academic tests.” IHO Exhibit I, 1-2. The district therefore requests that all of the parent’s “claims should be dismissed with prejudice.”

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.

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.

Here, turning first to the allegations about what occurred in the school district, the allegations made by the parent were not supported by the evidence before me. The legal standard to prove facts in contention in cases like this is preponderance of the evidence, as mentioned above, which essentially means more likely than not. I never heard or saw evidence that would lead me to believe that the allegations of the parent were supported by the evidence before me. The parent appeared to believe the accounts of what occurred as told to her by her son, [REDACTED], but when the school personnel were questioned about what allegedly occurred, their accounts did not correspond with the versions of what the parent appears to believe occurred. And I found the testimony by school personnel credible. Here are examples. A member of school staff denied saying that she would “shoot…[the student’s mother] after school and shoot her in the face.” Tr. 348. There was denial about this student’s underwear being shown or children laughing at this occurrence. Tr. 347-348. Meanwhile, it appears that this student made “comments to the effect of I’m going to get staff in trouble” “numerous times.” Tr. 349. It was denied that this student was prevented from using the bathroom. Tr. 357, or that a staff member brought this student to another … [location] to abuse him.” Tr. 357-358. The account of how this student’s audio device fell out of his pocket, while this student engaged in problematic behavior, as described in detail in testimony, appeared credible. Tr. 367. Staff members credibly denied taking this student’s jacket or any other belongings of this student from him. Tr. 373. The allegation that staff removed this student’s glasses and laughed at him was credibly denied. Tr. 378. Staff denied that this student was asked “personal things” about the parent. I have no reason to doubt this testimony. Staff denied squeezing this student’s hand to the point where he was screaming. Tr. 380. The staff it appears did at times remove this student to a location or locations where he and others could be safe, in light of this student’s behaviors. Tr. 380.

The initial request for a hearing, Exhibit 1, made reference to this student having been restrained in school. There was testimony about what occurred that day, which is summarized in the District’s closing document. IHO Exhibit I at 5-7. What appears to have occurred was the district tried to accommodate this student’s needs as it could. He was allowed to eat on a day when breakfast was not available at the school due to a late start of school that day. He was taken to a location away from the classroom so as not to disrupt the classroom. He subsequently refused to rejoin the class and engaged in what was judged to be unsafe behavior, including throwing a pair of scissors. Ultimately, after attempts to redirect this student, a “therapeutic hold” was utilized as a result of what was seen as escalating problematic behavior on the part of this student. It appears that no one hit, bullied, or abused this student. It appears that during the incident, this student spit on staff, attempted to bite them, threatened to kick them and threatened to get them fired. The school nurse examined this student and observed no injuries. Tr. 66, 69-71, 84, 159, 170. I see no evidence that the district personnel behaved inappropriately during this incident.

Without support for the parent’s allegations, which were the only basis upon which the parent argued that the district did not provide an appropriate education, I find that the district has met its burden that it provided an appropriate education, as the responses and explanations by school personnel appeared credible and appeared to reflect appropriate professional behavior. I believe that the parent sees things differently. But I must decide based upon the evidence that was before me; this evidence did not lead to a conclusion that it was more likely than not that the parent’s allegations were supported; rather, it appears to me more likely than not that the district’s version of the events was what occurred.

The parent’s closing document, IHO Exhibit II, is filled with conclusory statements; i.e., the parent reached conclusions without offering supporting facts that are supported by evidence. While the parent does allege facts, I find that neither exhibits nor testimony supported the allegations as stated. I cannot conclude that these facts were as alleged without credible and sufficient evidence supporting them. By contrast, the district’s version of what occurred with regard to this student’s education and how he was treated is supported extensively by credible testimony and exhibits. See the district’s closing document, IHO Exhibit I.

Even assuming that the parent’s allegations were correct with regard to the district having failed to provide for an appropriate education, in order for the district to be held responsible to pay for the program that the parent arranged for this student the parent would need to show that the program she arranged for this student was appropriate. But the parent has also failed to show this. There is no doubt that this student was much in need of special education. See IEP of 3/10/22, Exhibit 20. This student was placed by the district into a special education class with a student to teacher ratio of 15:1 and received related services of occupational therapy, speech/language therapy and psychological counseling. [REDACTED] received the support of a 1:1 aide. Tr. 113-115, Exhibit 20 at 001-002. Yet, the parent presented no evidence whatsoever that the program she arranged while this student was kept at home by her was a special education program or addressed his special education needs. Nor were needed related services provided. I find that the parent has failed to show that she provided an appropriate program and thus under the law the district cannot be held responsible to pay for this program for this student, who is certainly a student in need of special education.

The parent’s request for relief in the form of payment for the costs incurred for the homeschooling costs is therefore denied. With regard to the parent’s request that the district provide services missed while this student was homeschooled, i.e., occupational therapy, physical therapy and speech/language services, the only conceivable legal basis that I can think of that would support such relief here would be as compensatory services, to make up for what the district should have offered for this student but did not. The facts here are the opposite. The district offered the services, but the parent chose to homeschool this student and thereby not utilize services that were available.

Complicating the possibility of compensatory services further at this time is that the student no longer resides in the school district or even in the State of New York, as the family has moved to another state. Tr. 422. It appears to me that what would be best would be for the current school district to assess this student’s needs as they now stand and then provide whatever education and related services are necessary to address this student ’s learning needs going forward; but as this student no longer resides in this School District, the responsibility of addressing this student’s needs going forward is no longer the responsibility of this School District.

Order

The parent’s request for relief to be provided by the Central School District is denied.

Dated: September 21, 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.