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FINDINGS OF FACT AND DECISION
FOLLOWING REMAND
Case Number: 596333
Date of Birth: [Redacted text]
Record Close Date, following Remand :March 18, 2024 Hearing Requested by: Parent Dates of Hearing: 3/20/23 – prehearing conference
6/16/23
7/20/23
3/7/24 – Hearing Following Remand
Hearing Officer: Israel S. Wahrman, Esq.
.
Background
On October 4, 2023, I issued a Findings of Fact and Decision for this matter. This decision was appealed to the Office of State Review. In a decision dated December 8, 2023, the State Review Officer issued a decision that remanded this case back to this IHO, to address the specifics of compensatory education and services for this student, which I ordered in a decision dated October 4, 2023. This compensatory education and services issue was addressed on the record in a hearing on March 7, 2024.
Findings of Fact and Conclusions of Law
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, the question before us is how to compensate this student for deprivation of education and related services that occurred from October 6 through December 1, 2022. Both parties now agree that two hours of alternative instruction should have been received during each school day during this time period, which were not received. Also, both parties agree that twelve half hour sessions of speech and language services were missed during this time period. Both parties agree that to make up for these missed services, to make this student whole, the district should provide a bank of 40 hours of academic tutoring and six sessions of speech and language services. Tr. 3/7/24 at 5-7.
I find that this student was deprived of both education and related services as specified above. I am ordering tutoring and services as agreed upon by the attorneys from both sides to make up, hour for hour, with what should have been provided but was not, to make this student whole.
Order
Compensatory education and services shall be provided to make up for the education and services not provided to this student while he was suspended without appropriate alternative instruction during the Fall 2022 semester. Specifically, this student shall be provided with a bank of forty hours of academic tutoring and six sessions of speech and language services, to be utilized as needed, in addition to whatever services are provided in this student’s program, pursuant to IEPs.
Dated: March 19, 2024 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.