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CASE NUMBER: 599613- NYC: 248270
FINDINGS OF FACT AND DECISION
Case Number: 248270
Student’s Name: REDACTED
Date of Birth: REDACTED
School District: NYC Department of Education
Hearing Requested by: REDACTED (“Parent”)
Request Date/Date Complaint Filed: 05/15/2023
Date(s) of Hearing: 08/10/2023
Actual Record Closed Date: 08/15/2023
Date of Decision: 08/16/2023
Date of Distribution (if Different than Decision Date): 08/16/2023
Hearing Officer: Edward Perkins, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON 08/10/2023
REDACTED, Esq., Attorney — Student
N/A — DOE
INTRODUCTION
This is a decision in a hearing under the Individuals with Disabilities Education Act (“IDEA”). The Parents filed this case on May 15, 2023. In the Due Process Complaint (“DPC”), the Parents allege that the Department of Education (“DOE”) failed to offer the student a free appropriate public education (“FAPE”) for the 2022-2023 school year. Ex. A.
By way of relief, Parents seek an award of 102 hours of Special Education Teacher Support Services (“SETSS”), with payment made at an enhanced rate. Tr. at 18,19, Tr. at 25.[1] I find that (a) the DOE failed to meet its burden that it offered Student a FAPE for the school years in question, and (b) Parent’s requested relief is appropriate.
PROCEDURAL HISTORY
The initial request was filed on May 15, 2023. Ex. A. On May 16, 2023, I was appointed as IHO in this matter. On June 26, 2023, the parties appeared for a Pre-Hearing Conference, Parent requested an order on pendency, and a status conference date and hearing date were selected. Parties submitted briefs on pendency, and on July 06, 2023, I issued an order on pendency, ordering the DOE to provide Student with (1) SETSS, three direct group sessions per week; and (2) counseling services, one thirty-minute individual session per week, from the date of the filing of the DPC, for the duration of these proceedings. On July 20, 2023, Parent appeared for the scheduled status conference, but the DOE failed to appear without explanation. On August 10, 2023, the Parent appeared for a due process hearing on the merits. The DOE again failed to appear, despite being provided with notice multiple times. Tr. at 14-17. The DOE did not disclose any exhibits in advance of the hearing. Tr. at 16. Parent presented four exhibits, and the testimony of one witness, the mother of Student. Tr. at 19-20. At the conclusion of the hearing, Parent presented an oral summation. Tr. at 24.
FINDINGS OF FACT
I hereby make the following findings of fact and determinations.
Student is a REDACTED year old child with a DOE disability classification of Learning Disability. Ex. B-1. The DOE created an Individualized Education Services Program(“IESP”) for Student for the 2022-2023 school year on March 28, 2022. Id. The March 28, 2022 IESP mandated SETSS services three times per week in a group, and Counseling Services once per week individually. Ex. B-6. The DOE failed to deliver Student’s mandated SETSS services. Ex. D-1. As a result, on April 27, 2023, Parent contracted with a private agency to provide student with SETSS services. Id. Student had no SETSS services at all from September 01, 2022 until April 27, 2023. Ex. D-2. Student’s SETSS services after April 27, 2023 were funded by the DOE under the order of pendency. Tr. at 21.
CONCLUSIONS OF LAW AND ANALYSIS
Burden
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except in circumstances not present here. (NYS Educ. Law § 4404(1)I). The school district has the burden of proof on the issue of compensatory education. See M.M.
v. New York City Dept. of Educ., 2017 WL 1194685 at *4 (S.D.N.Y. 2017); Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 457 (2d Cir. 2015); Reid ex rel. Reid v. Dist. Of Columbia, 401 F.3d 516, 524 (DC
Ct. of App. 2005); Application of Student with a Disability, Appeal No. 21-169.
Provision of FAPE
The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). 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. 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). In order to meet its substantive FAPE obligations, a district must prove that it offered the student in question 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, 137 S.Ct. 988, 999 (2017).
As to a provision of FAPE, the DOE failed to meet its burden at hearing. According to the Supreme Court, a reviewing hearing officer may fairly expect the DOE to be able to offer a cogent and responsive explanation for their decisions that shows the ISEP is reasonably calculated to enable the child to make progress appropriate in light of her circumstances. Endrew F., 386, 404. Here, the DOE did not disclose any evidence to support its decisions, and did not even appear at the hearing. Tr. at 14,
16. Thus, I must find that the DOE failed to offer the Student a FAPE for the 2022-2023 school year.
Relief
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); Carter, 510 U.S. at 15-16. 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), citing Carter, 510 U.S. at 15-16. 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 454 (2d Cir. 2015). [2] 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, F.3d 106, 109 n.2 (citations omitted). 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 Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015). Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more—they must compensate.” Reid
v. Dist. Of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). An award of compensatory education “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.” Reid, 401 F.3d at 518, 524.
There are generally two approaches to fashioning a compensatory education award, the “quantitative” approach, and the “qualitative” approach. M.C. ex rel. J.C. v. Cent. Reg’l Sch. Dist., 81 F.3d 389 (3d Cir. 1996); See, e.g., Reid, 401 F.3d at 518, 524. The quantitative approach provides for compensatory education equal to the period of deprivation, whereas the qualitative approach fashions an award based upon 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.” Reid, 401 F.3d at 518, 524. The Second Circuit has generally adopted the practice of leaving “the mechanics of structuring the compensatory education award” to the sound discretion of the court to fashion a relief that is appropriate in light of the purpose of the Act, without articulating a specific formula or approach. 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). When calculating an award, a court can also consider “whether compensatory education should be limited to the kinds of services specified in the IESP or encompass analogous educational services appropriate to the student’s current needs,” but 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 district has the burden of proof in an administrative hearing regarding the appropriateness of a compensatory education award, but the parent must identify the specific remedy they are seeking so that the IHO can craft an appropriate remedy for the years it is claimed the student was denied a FAPE. Education Law § 4404[1][c]; See JKG v. Wissahickon Sch. Dist., 2021 U.S. Dist. LEXIS 55235 *25 (E.D. Pa. 2021). The IHO may order that an award of services be placed in a bank to be used by a certain date to allow flexibility in the implementation. M.M. v. New York City Dep’t of Educ., 2017 U.S. Dist. LEXIS 47812, *25 (S.D.N.Y. 2017).
Where the DOE fails to meet its burden of proving it provided a FAPE, as is the case here, it is “nevertheless incumbent on the district to develop the hearing record to establish the appropriate amount of relief needed to remediate the district’s failure.” Application of the New York City Department of Education, Appeal No. 14-014 (SRO NY 2014). Further, it is not persuasive for the district to simply fault the parent’s request for relief without also explaining its own view of what type of compensatory education relief would be appropriate to remediate the district’s failure to provide the student with a
FAPE. Id.
As the DOE has failed to present any evidence or testimony, I find that the DOE has failed to establish the appropriate amount of relief to remediate its failure to provide Student with a FAPE for the school years in question. Tr. at 17.
In contrast, Parent met her obligation to offer evidence in the record of a specific remedy for the denial of FAPE from the school years in question. I find that the compensatory relief requested by the Parent is appropriate to remedy Student’s documented academic and social/emotional deficits, and the requested relief is reasonably calculated to provide Student with the skills that she would likely have accrued but for the DOE’s failure to provide a FAPE. Notably, Parent is requesting the exact relief mandated by Student’s IESP. Ex. B-6. As the IESP is a DOE-created document, there is in effect a stipulation that the requested relief is appropriate.
Therefore, I find no issue with the reasonableness of the requested relief. The number of requested hours is simply based on a calculation of the IESP-mandated services for the time period during which Student was not receiving services under the pendency order. Further, there is no evidence in the record which suggests that some other form or quantity of relief would better redress the harm caused by the DOE’s failure to provide Student with a FAPE. Under the quantitative approach, a deprivation of FAPE from September 01, 2022 through April 27, 2023 would amount to a period of deprivation spanning 34 weeks. Student is mandated to receive three hours of SETSS per week (Ex. B-6), meaning that she is entitled to a compensatory award of 102 hours of SETSS instruction. Even though I have utilized my discretion to apply the qualitative approach to calculating relief, an analysis under the qualitative approach would likely arrive at a similar conclusion.
With respect to the rate, the DOE did not raise any issues with the appropriateness of the rate, and it is currently funding SETSS services at the requested rate pursuant to the order of pendency. Thus, I find that the requested rate is reasonable.
Even if a parent establishes a right to relief under the IDEA, “courts retain discretion to reduce the amount of a reimbursement award if the equities so warrant.” Forest Grove Sch. Dist. V. T.A., 557 U.S. 230, 246-47, 129 S. Ct. 2484, 174 L. Ed. 2d 168 (2009). In making that equitable determination, a hearing officer may consider many factors, including, inter alia, whether there was any fraud or collusion in any other respect. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 461 (2d Cir. 2014). Here, the DOE failed to raise any equitable issues which would be a barrier to the requested relief. Further, the record shows that Parent participated in the ISEP meetings and thus made a good faith effort to work with the DOE. See, e.g., Ex. B-9. Finally, equitable considerations support the requested relief, as previously discussed.
For the reasons above, I find that the record supports Parent’s requested relief.
ORDER
NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY
ORDERED THAT:
The New York City Department of Education is ordered to fund 102 hours of compensatory Special Education Teacher Support Services, to be provided by REDACTED or a similarly qualified provider of Parent’s choosing, at a rate not to exceed that which has been paid by the Implementation Unit of the DOE’s impartial hearing office for comparable services for the same student within the six (6) month period prior to the date of this Order, with payment to be made directly to the provider within 30 days of the submission of an invoice to the DOE.
SO ORDERED.
DATED: 08/16/2023
//s// Edward Perkins
Edward Perkins, 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 – REDACTION IDENTIFICATION PAGE
APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD
PARENT EXHIBITS
A. Due Process Complaint 05/15/2023 (6 pages)
B. IESP 03/28/2022 (9 pages)
C. REDACTED Engagement Letter 04/27/2023 (2 pages)
D. Parent Affidavit 08/02/2023 (2 pages)
Footnotes
[1] The August 10, 2023 hearing transcript is cited to using the following format: ‘Tr. at xx’ (with ‘xx’ representing the page number).
[2] I have elected to address the requested relief using my broad discretion to award equitable relief, as opposed to the Burlington/Carter “three prongs” analysis. Under the Burlington/Carter test, a district must pay for the cost of a student’s requested relief if the three prongs are met: (1) the DOE denied the student a FAPE; (2) the private placement is appropriate; and (3) the equities favor an order of tuition. See Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S. 359, 367 (1985); Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 12-15 (1993). While the Burlington/Carter test is sometimes applied in cases where tuition is not sought (for example by substituting ‘private placement’ for ‘requested relief’), I believe that test was designed for application in cases considering an award of tuition. However, if the Burlington/Carter test were to be applied to the facts of this case, Parent would still prevail, as the three prongs favor her: DOE has failed to prove that it provided FAPE (prong 1), Parent has demonstrated the appropriateness of the requested relief (prong 2), and there are no equitable considerations which were raised that could be a barrier to the requested relief (prong 3).