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FINDINGS OF FACT AND DECISION
Case Number: 246264
Student’s Name: REDACTED
School District: N.Y.C. Dept. of Ed., District #REDACTED
Impartial Hearing Officer: Leslie Engelsohn
Date of Filing: February 27, 2023
Hearing Requested by: Parent
Date of Hearing: October 2, 2023
Record Close Date: October 17, 2023
Date of Decision: October 17, 2023
Time Sensitive: No Names and Titles of Persons Who Appeared on October 2, 2023
For the Student
REDACTED, Esq., Parent’s Attorney/Representative REDACTED, Mother of Student
For the New York City Department of Education REDACTED, District Attorney/Representative
BACKGROUND
Student is a REDACTED-year-old child who is classified by the New York City Department of Education’s (DOE or District) Committee on Special Education (CSE) as a student with “traumatic brain injury.” 1 The student’s classification is not in dispute. Parent alleges that the DOE failed to provide Student with a Free and Appropriate Public Education (FAPE) for the 2021-2022 and 2022-2023 school years and requests the following relief: 1) a finding that the District denied the Student a FAPE for the 2021-2022 and 2022-2023 school years; 2) Independent Educational Evaluations (“IEE”) including a Neuropsychological Evaluation, a Speech Language Evaluation, an Auditory Processing Evaluation, an Occupational Therapy evaluation, a Physical Therapy evaluation, an Assistive Technology Evaluation and a Feeding Evaluation;[2] 3) for the IHO to order the District to hold an IEP meeting within fourteen days of the date of decision and recommend the Student for placement in a New York state approved nonpublic school with an appropriate educational program and related services in accordance with the Student’s needs 3; 4) for the DOE to fund appropriate compensatory services by independent providers of Parent’s choosing at their normal and customary rates; 5) for the District to fund the cost of an appropriate assistive technology device; and 6) reimbursement for the transportation expenses which the Parent incurred to transport the Student to and from school.
PROCEDURAL HISTORY
On February 27, 2023, Parent filed a due process complaint (DPC) against the DOE, on behalf of the Student, pursuant to the Individuals with Disabilities Education Act (“IDEA” or the “Act”) and its implementing regulations. On April 17, 2023, a pre-hearing conference was held with the representatives of the parties. On April 21, 2023, I was appointed IHO for this case to determine the claims in the DPC and conduct an impartial hearing pursuant to 20 U.S.C. §1415(f) and New York State Education Law §4404(1). Status conferences were held with the 1 Ex. A representatives of the parties on May 4, 2023, June 7, 2023, July 11, 2023, August 17, 2023, and September 13, 2023. On October 2, 2023, a hearing on the merits was held.
At the hearing, Parent’s attorney submitted seven exhibits, all of which were admitted into evidence without objection by the DOE. Parent’s attorney delivered an opening statement and presented the mother of the Student as the sole witness. The Parent’s attorney also delivered a closing statement. The DOE delivered an opening statement, introduced six exhibits into evidence, did not present any witnesses, cross-examined the Parent’s witness, and delivered a closing statement. A list of the documentary evidence in this proceeding is appended to this Order.
JURISDICTION
A decision in this matter is being rendered, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq., and its implementing regulations, 34 C.F.R. § 300 et seq., and the New York State Education Law, Educ. Law Art. 89 § 4404 et seq., and its implementing regulations, 8 NYCRR § Part 200.
LEGAL FRAMEWORK
Both the IDEA and the Education Law provide that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A); Education Law §§ 4402(2)(a), (b)(2). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive Individualized Education Program (“IEP”). 20 U.S.C. §§ 1401(9), (29). 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 and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). 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. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1, 137 S. Ct. 988, 999 [2017]. If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381-82 (2d Cir. 2003); W.G. v. Bd. of Trustees of Target Range School Dist. No. 23, 960 F. 2d 1479, 1484 (9th Cir. 1992); J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000); 8 NYCRR § 200.5(4)(ii). School districts are obligated to provide the special education services listed in a student’s IEP. 20 U.S.C. § 1401(9)(D); 34 C.F.R. § 300.17(d).
In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 454 [2d Cir. 2015]. Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion. Florence County Sch. Dist. Four v. Carter ex rel. Carter, 510 U.S. 7, 16 (1993). Although an award of damages is not available under the IDEA see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 [2d Cir. 2002], “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies” Doe v. East Lyme, 790 F.3d at 454.
FINDINGS OF FACT AND DECISION
Failure to Provide a FAPE
In IDEA impartial due process proceedings conducted in New York, the burden is on the DOE to establish that it provided a student with a FAPE. M.W. ex rel. S.W. v. New York City Dept. of Educ., 725 F.3d 131, 135 (2d Cir. 2013); A.M. ex rel. E.H. v. New York City Dept. of Educ., 845 F.3d 523, 535 (2d Cir. 2017). At the hearing, the DOE only presented documentary evidence which did not offer a cogent explanation for their decisions and did not present any witness testimony to explain the documentary evidence. As a result, the DOE failed to address or sustain its burden under the Education Law and failed to demonstrate it provided Student with a FAPE for the 2021-2022 and 2022-2023 school years. Furthermore, the DOE did not object to or contest the documentary evidence submitted by Parent in support of Parent’s claims. The DOE cross examined the Parent’s witness; it is hereby noted that said cross examination did not serve to rebut the relevant testimony in question. Accordingly, Parent is entitled to a presumption as to the truth of the asserted facts underlying Parent’s claims that are contained in the documentary evidence and testimony to the extent they are credible and are not contradicted by the hearing record. Based on that presumption, and the DOE’s failure to sustain its burden under the Education Law, I find the record establishes that the DOE failed to provide Student with a FAPE for the 2021-2022 and 2022-2023 school years.
COMPENSATORY EDUCATION
The relief requested by Parent is equitable in nature as Parent is asking the IHO to devise an appropriate remedy to address the DOE’s failure to provide Student with a FAPE for the 2021-2022 and 2022-2023 school years. Specifically, Parent has requested the IHO order the following: 1) the DOE should reimburse the Parent for the transportation expenses which the Parent paid for out of pocket for the school years at issue 2) the DOE fund the following compensatory services by independent providers of Parent’s choosing: 690 compensatory hours of Speech Language Therapy, 345 compensatory hours of feeding therapy, 104 compensatory hours of Occupational Therapy, 104 compensatory hours of Physical Therapy, and 520 compensatory hours of academic tutoring.
The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations”. See Sch. Comm. of Town of Burlington, Mass. v. Dept. of Educ. of Mass., 471 U.S. 359, 374 (1985); Florence County School District Four et al. v. Carter by Carter, 510 U.S. 7, 15-16 (1993). As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v District of Columbia, 786 F. 3d 1054, 1056 [D.C. Cir. 2015]. In actions brought under the IDEA alleging a denial of FAPE, “the court shall grant such relief as the court determines is appropriate”, limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme, 790 F.3d at 454.
An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dept. of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education” P. ex rel. Mr. & Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child's education.” Somoza v. New York City Dept. of Educ., 538 F.3d 106, 109 n.2 [2d Cir. 2008]. Courts “may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more -- they must compensate”, and “hearing officers may award ‘educational services . . . to be provided prospectively to compensate for a past deficient program.’” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005). “If IDEA permits reimbursement for educational services, courts have reasoned, then it must also allow awards of the services themselves.” See Id. at 522. Compensatory education, therefore, is a “replacement of educational services the child should have received in the first place.” See Id. at 518.
There are generally two approaches to fashioning a compensatory education award: 1) the “quantitative” approach followed in the Third Circuit, see, e.g., M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 [3d Cir. 1996] [holding that a student denied a FAPE is entitled to compensatory education equal to the period of deprivation], and 2) the “qualitative” approach relied on by the 6th and D.C. Circuits, see, e.g., Reid, 401 F.3d at 518, 524 [requiring a flexible, fact-specific approach in which the award relies “on individual assessments” and is “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”].
The Second Circuit has not taken a preferred approach, opting instead as a general practice to “leave the mechanics of structuring the compensatory education award to the district court’s sound discretion”, so long as “the relief is appropriate in light of the purpose of the Act” Doe v. East Lyme, 790 F.3d at 454, 457; accord L.O. ex rel. K.T. v. New York City Dept. of Educ., 822 F.3d 95, 125 [2d Cir. 2016]; see also Student X. v. New York City Dept. of Educ., 2008 WL 4890440, at *26 [E.D.N.Y 2008] [noting that “the Second Circuit has not articulated a test for determining how [compensatory education] services are calculated”, and awarding compensatory relief equal to the amount of time the student was deprived of services]. In calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the [IEP] or encompass analogous educational services appropriate to the Student’s current needs”; however, 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.” Doe. v. East Lyme, 790 F.3d at 457.
Under New York law, the DOE has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award under the IDEA. Education Law § 4404(1)(c). However, the Parent also has a responsibility to identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the DOE’s failure to provide the Student with a FAPE for the years at issue. See JKG by JK and JKG v. Wissahickon Sch. Dist., 2021 WL 1122526, at *8 (E.D. Pa. 2021), [noting that “[w]hile the Court has discretion to fashion a remedy that it deems appropriate, the Court cannot unilaterally supply the facts necessary to reach such a decision”]; Butler v. Dist. of Columbia, 275 F. Supp. 3d 1,[5] (D.D.C.
2017) [holding that a hearing officer “must solicit the evidence necessary to determine the student’s specific educational deficits resulting from his loss of FAPE and the specific compensatory measures needed to best correct those deficits”] [internal quotes and citation omitted]. Here, Parent has identified the specific remedy Parent is seeking and has provided documentary evidence and testimony in support of Parent’s request.
Parent testified, in relevant part, to the following: 1) The Student was diagnosed with REDACTED and was hospitalized in September 2021. The Student suffered an REDACTED. 2) The Student was medically cleared to return to the Student’s public school in REDACTED, but the District did not provide transportation for the Student. 3) Parent attended an IEP meeting for the Student in January 2022. 4) After that IEP meeting, the District still was not providing transportation for the Student to attend school. The Parent testified that from January through June 2022, the District provided transportation to the Student approximately ten to fifteen times. the SLP conducted, the SLP determined that the Student exhibits moderate delays in receptive language skills, at risk skills in reading comprehension and social skills and severe delays in expressive language skills, writing skills, articulation and oral motor skills. The SLP also indicated that the Student presents with severe delays in oral motor skills that impact the Student’s feeding and swallowing. 4) SLP recommends that Student receive speech language therapy three times a week individually for 60 minutes per session and once a week in a group of three to four students for 60 minutes per session during a 12-month period. SLP additionally recommends oral motor and feeding therapy at a mandate of 3x40:1 so the Student’s oral motor weaknesses can be improved. 5) SLP recommends a bank of compensatory speech hours in the amount of 690 speech and language hours to give the Student consistent access to interventions that will address the Student’s language deficits. SLP also recommends a bank of 345 compensatory feeding therapy hours to give the Student access to therapy that will address the Student’s oral motor deficits. 6) SLP also recommends an assistive technology device for the Student to have access to the curriculum and participate in literacy tasks as well as training for the Student and the academic team to ensure access to these tools. 5 The hearing record establishes that Student was not provided a FAPE for the 2021-2022 and 2022-2023 school years. Furthermore, the testimony of the Parent, and the uncontested documentary evidence, support a finding that Student is entitled to compensatory services to compensate for what Student was deprived of during the school years in question.
ORDER
Based on the above Findings, it is hereby:
1. ORDERED THAT, the New York City Department of Education shall reimburse the Parent for out-of-pocket transportation expenses within 30 days of submission of proof of payment of Uber fares to or from the Student’s school for up to four rides per day for the 2021-2022 and 2022-2023 school years.
2. FURTHER ORDERED that, the DOE shall fund the following compensatory services for Student, which may be provided during the school year or during the summer (July and/or August), on weekdays, weekends, on holidays, or during school vacations, by duly
See Ex. E, F, G
New York State licensed providers of the Parent’s own choosing at the providers’ customary and regular rates
a. 690 compensatory hours of Speech Language Therapy
b. 345 compensatory hours of feeding therapy
c. 104 compensatory hours of Occupational Therapy
d. 104 compensatory hours of Physical Therapy
e. 520 compensatory hours of academic tutoring by issuing payment directly to the provider(s) within 30 (thirty) days upon the submission of invoices for services rendered.
3. FURTHER ORDERED that the DOE shall make payment for the compensatory services ordered in #2 of this Order, at the prevailing market rate of the Parent’s duly licensed independent providers of choice capped at the lowest price the DOE’s Implementation Unit has paid for substantially similar services to the same providers during the twelve months preceding the date of this decision, or if it has not paid the same providers within the preceding twelve months, what it has paid for substantially similar services to a similar provider during the twelve months preceding the date of this decision.
4. FURTHER ORDERED that, the bank of compensatory services set out in # 2 of this Order shall not expire until the expiration of three years from the date of this Order. So Ordered. Dated: October 17, 2023
Leslie Engelsohn
Leslie Engelsohn
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.
DISTRICT EVIDENCE
EXHIBIT DATE NAME PAGES
1 3/25/2021 IEP 19
2 1/5/2022 IEP 30
3 11/16/2021 Prior Written Notice 3
4 6/29/2022 Prior Written Notice – Notice of Recommendation 3 5 5/23/2023 Prior Written Notice – Notice of Recommendation 4
6 11/23/2022 Prior Written Notice – Notice of Recommendation 4
PARENT’S EVIDENCE
Exhibit Name Date Pages
P-A Parent’s Impartial Hearing Request 02/27/23 7
P-B Letter from Pediatrician 11/15/21 1
P-C Individualized Education Program 01/05/22 24
P-D Individualized Education Program (Reconvene) 01/05/22 30
P-E Speech Language Evaluation 09/07/23 14
P-F Feeding Evaluation 09/07/23 9
P-G Assistive Technology Evaluation 09/07/23 9
APPENDIX
Redacted Information Term Used In FOFD REDACTED Student
REDACTED Parent
REDACTED Parent Attorney/Representative
REDACTED DOE Attorney/Representative REDACTED Speech Language Pathologist REDACTED School District REDACTED Student’s Public School
Footnotes
[2] The IHO issued an interim order granting all of the Parent’s requested IEEs on June 2, 2023. The Parent indicated at the hearing that an IEP meeting took place following the filing of this DPC.
[5] The Student was also mandated to have a health paraprofessional to accompany the Student to school on the bus, but the paraprofessional was often absent. 6) Due to the District’s failures to provide transportation, the Parent often transported the Student to school using Uber and incurred out of pocket expenses to do so. 7) The Parent testified that during the 2022-2023 school year, the District only provided transportation for the Student approximately ten times. 8) The Parent indicated that the District never contacted her to provide make up sessions for the Student’s therapies which the Student missed due to the District’s failure to transport the Student to school. 4 SLP authored the evaluations admitted into the record which state, in relevant part, the following: 1) SLP is a New York State licensed speech and language pathologist. 2) SLP conducted a speech language therapy evaluation, a feeding and swallowing evaluation, and an assistive technology evaluation of the student on August 30, 2023. 3) Based on the assessments See Tr. 41-49