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Special Education Law
DECISIONParent PrevailedIHO Case No. 192194

New York City Department of Education, Impartial Hearing Decision

November 3, 2022·Jeffrey J. Schiro·New York City Department of Education

NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.

CASE NUMBER: 534926 - NYC: 192194

FINDINGS OF FACT & DECISION

Case Number: 192194

Student Name: [REDACTED]

(hereinafter referred to as the “Student”)

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Dates of Hearings: February 14, 2022

April 28, 2022

Actual Record Close Date: October 20, 2022

Hearing Officer: Jeffrey J. Schiro, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON FEBRUARY 14, 2022

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], ESQ., Attorney

NAMES AND TITLES OF PERSONS WHO APPEARED ON APRIL 28, 2022

For the Student:

[REDACTED], Advocate

For the Department of Education:

[REDACTED], ESQ., Attorney

I. JURISDICTION - OVERVIEW OF ADMINISTRATIVE PROCEDURES

This impartial due process proceeding arises under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400-1482, and Article 89 of the New York State Education Law. This hearing was requested by the advocate for the student and the parent in a due process complaint notice dated January 20, 2020. The primary issue to be determined at this hearing is whether the Department of Education (the “DOE”) offered the student a free appropriate public education (“FAPE”) during the 2018/19 and 2019/20 school years (Ex. P-A).[1]

When a student in New York is eligible for special education services, the IDEA calls for the creation of an individualized education program (“IEP”), which is delegated to a local committee on special education (the “CSE”) that includes, but is not limited to, parents, teachers, at least one psychologist, and school district representatives. See N.Y. Educ. Law § 4402; see also 20 U.S.C. §§ 1414(d)(1)(a)-(b); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2). If disputes occur between parents and school districts, incorporated among the procedural protections is the opportunity to engage in mediation, present state complaints, and initiate an impartial due process hearing. See 20 U.S.C. §§ 1221e-3, 1415(e)-(f); 34 C.F.R.

§§ 300.151 - 300.152, 300.506, 300.511; N.Y. Educ. Law § 4404(1); 8 NYCRR §§ 200.5(h)-(l).

New York State has implemented a two-tiered system of administrative review to address disputed matters between parents and school districts regarding “any matter relating to the identification, evaluation, or educational placement of a student with a disability, or a student suspected of having a disability, or the provision of a free appropriate public education to such student.” See 8 NYCRR § 200.5(i)(1); see also 20 U.S.C. §§ 1415(b)(6)-(7); 34 C.F.R.

§§ 300.503(a)(1)-(2), 300.507(a)(1). An impartial hearing officer (“IHO”) typically conducts a trial-type hearing regarding the matters in dispute in which the parties have the right to be accompanied and advised by counsel and certain other individuals with special knowledge or training; present evidence and confront, cross-examine and compel the attendance of witnesses; prohibit the introduction of any evidence at the hearing that has not been disclosed five (5) business days before the hearing; and obtain a verbatim record of the proceeding. See 20 U.S.C. §§ 1415(f)(2)(a), (h)(1)-(3); 34 C.F.R. §§ 300.521(a)(1)-(4); 8 NYCRR §§ 200.5(j)(3)(v), (vii), (xii). The IHO must render and transmit a final written decision in the matter to the parties not later than forty-five (45) days after the expiration period or adjusted period for the resolution process. See 34 C.F.R. §§ 300.510(b)(2), (c), 300.515(a); 8 NYCRR § 200.5(j)(5). A party may seek a specific extension of time of the 45-day timeline, which the IHO may grant in accordance with state and federal regulations. See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5). The decision of the IHO is binding upon both parties unless appealed. See N.Y. Educ. Law § 4404(1). A party aggrieved by the decision of an IHO may appeal that decision to a State Review Officer (“SRO”). See N.Y. Educ. Law § 4402(2); see also 20 U.S.C. § 1415(g)(1); 34 C.F.R. § 300.514(b)(1); 8 NYCRR § 200.5(k).

II. PROCEDURAL HISTORY

While this matter was awaiting assignment to an IHO, the parties entered into an Agreement on Pendency, dated May 8, 2020 (Ex. P-C). See 20 U.S.C. § 1415(j); 34 C.F.R. § 300.518(a); N.Y. Educ. Law § 4404(4); 8 NYCRR § 200.5(m). Pursuant to that Agreement, the DOE agreed to the student’s receipt of bilingual (Yiddish) special education teacher support services (“SETSS”), for five (5) periods per week (Ex. P-C).

On July 1, 2020, the DOE appointed the undersigned to serve as the IHO in this matter. See 8 NYCRR § 200.5(j)(3)(i). Thereafter, on January 20, 2022, the DOE filed a motion to dismiss the parent’s due process complaint (Ex. SD-1). Hearings on the District’s motion were held on February 14, 2022 and April 28, 2022.[2] Appended to this decision are: a statement of appeal rights; a list of the persons in attendance at the hearings; and a list of the documents received into evidence. See 8 NYCRR § 200.5(j)(5)(v).

III. FACTUAL BACKGROUND

At the time of the January 20, 2020 due process complaint, the student was [REDACTED] years old and presented with cognitive and academic delays, and difficulties with expressive and receptive language. During the 2018/19 and 2019/20 school years, the student was voluntarily enrolled by her parent in a nonpublic school in [REDACTED]. The student's eligibility for special education and related services as a learning disabled student is not in dispute in this hearing (Ex. P-A at 2). See 8 NYCRR § 200.1(zz)(6).[3]

On June 13, 2017, the CSE convened to develop an individualized education services program (“IESP”) for the student.[4] The CSE recommended that the student receive bilingual (Yiddish) SETSS for five (5) periods per week. The CSE failed to develop or recommend IESPs for the student for the 2018/19 or 2019/20 school years. Although the parent made attempts to locate a qualified bilingual SETSS provider for the student, she was unable to do so during the 2018/19 school year at the DOE’s then-standard rate of approximately $41.98 per hour. The parent was ultimately successful in securing a qualified bilingual provider to service the student at an enhanced rate for the 2019/20 school year (Exs. P-A at 2, P-D). Having been unable to secure a SETSS provider for the student at the DOE’s standard rate, the parent seeks reimbursement and/or direct payment for enhanced rate SETSS she secured for the student during the 2019/20 school year, and compensatory education to remedy the denial of SETSS services to the student during the 2018/19 school year (Ex. P-A).

Relevant to the District’s motion, the CSE reconvened on March 15, 2021 to develop an IESP for the student. The CSE recommended that the student receive bilingual (Yiddish) SETSS for ten (10) periods per week. Thereafter, CSE failed to implement its March 15, 2021 recommendation, and the parent was unable to locate a provider on her own accord due to the low standard rate offered by the DOE. The parent was able to locate an appropriate SETSS provider for the student for the 2020/21 school year at that provider’s prevailing rate. The parent initiated a separate due process hearing (i.e., Case No. 204987) to seek reimbursement and/or direct payment for enhanced rate SETSS she secured for the student during the 2020/21 school year (Ex. SD-1 ex. B).

On June 21, 2021, the parent and the DOE entered into an Agreement to resolve Case No. 204987. That Agreement called for the DOE to fund the student’s receipt of bilingual (Yiddish) SETSS during the 2020/21 school year, at a frequency of ten (10) times per week, and at a rate of $125 per session. The Agreement also called for the DOE to fund the student’s receipt of bilingual (Yiddish) SETSS during the 2019/20 school year, at a frequency of five (5) times per week, and at a rate of $125 per session (Ex. SD-2).

IV. POSITIONS OF THE PARTIES

A. The DOE The DOE’s motion to dismiss should be granted. The claims raised in the January 20, 2020 due process complaint (in Case No. 192194) are moot, as all relief sought in that complaint has been provided by the DOE to the student pursuant to the June 21, 2021 Resolution Agreement in Case No. 204987 (R. 16-17; Ex. SD-1).

B. The Parent The DOE’s motion to dismiss should be denied as the parent’s claims are not moot. The DOE has failed to implement the May 8, 2000 Agreement on Pendency in Case No. 192194 or the June 21, 2021 Resolution Agreement in Case No. 204987. The student’s SETSS provider during the 2019/20 school year is still owed approximately $12,375.00 for services rendered to the student during that school year (R. 18-19)

V. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Applicable Legal Standards

Two purposes of the IDEA, see 20 U.S.C. §§ 1400-1482, are: (a) to ensure that students with disabilities have available to them a free appropriate public education (“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 (b) to ensure that the rights of students with disabilities and parents of such students are protected, see 20 U.S.C. § 1400(d)(1)(A)-(B); see generally Forest Grove v. T.A., 557 U.S. 230, 239 (2009); Board of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982).[5]

A FAPE is offered to a student when: (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP developed by its CSE through the IDEA's procedures is reasonably calculated to enable the student to receive educational benefits. See Rowley, 458 U.S. at 206-07; H.C. v. Katonah-Lewisboro Union Free Sch. Dist., 2013 WL 3155869 (2d Cir. June 24, 2013); R.E. v. New York City Dep't. of Educ., 694 F.3d 167, 189-90 (2d Cir. 2012), cert. denied 2013 WL 1418840 (U.S. June 10, 2013); M.H. v. New York City Dep't of Educ., 685 F.3d 217, 245 (2d Cir. 2012); Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir. 2005).

"'[A]dequate compliance with the procedures prescribed would in most cases assure much if not all of what Congress wished in the way of substantive content in an IEP.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 129 (2d Cir. 1998) (quoting Rowley, 458 U.S. at 206); see T.P. v. Mamaroneck Union Free Sch. Dist., 554 F.3d 247, 253 (2d Cir. 2009). While the Second Circuit has emphasized that school districts must comply with the checklist of procedures for developing a student's IEP and has indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not," see R.E., 694 F.3d at 190-91, the Court has also explained that not all procedural errors render an IEP legally inadequate under the IDEA, M.H., 685 F.3d at 245; A.C. v. Bd. of Educ., 553 F.3d 165, 172 (2d Cir. 2009); Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003); Perricelli v. Carmel Cent. Sch. Dist., 2007 WL 465211, at *10 (S.D.N.Y. Feb. 9, 2007).

Under the IDEA, if procedural violations are alleged, an administrative officer may find that a student did not receive a FAPE only if the procedural inadequacies: (a) impeded the student's right to a FAPE; (b) significantly impeded the parents' opportunity to participate in the decision-making process regarding the provision of a FAPE to the student; or (c) caused a deprivation of educational benefits. See 20 U.S.C. § 1415(f)(3)(E)(ii); 34 C.F.R.

§ 300.513(a)(2); 8 NYCRR § 200.5(j)(4)(ii); Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 525-26 (2007); R.E., 694 F.3d at 190; M.H., 685 F.3d at 245; A.H. v. Dep't of Educ., 2010 WL 3242234, at *2 (2d Cir. Aug. 16, 2010); E.H. v. Bd. of Educ., 2008 WL 3930028, at *7 (N.D.N.Y. Aug. 21, 2008), aff'd, 2009 WL 3326627 (2d Cir. Oct. 16, 2009); Matrejek v. Brewster Cent. Sch. Dist., 471 F. Supp. 2d 415, 419 (S.D.N.Y. 2007), aff'd, 2008 WL 3852180 (2d Cir. Aug. 19, 2008).

The IDEA directs that, in general, an IHO's decision must be made on substantive grounds based on a determination of whether the student received a FAPE. See 20 U.S.C.

§ 1415(f)(3)(E)(i). A school district offers a FAPE "by providing personalized instruction with sufficient support services to permit the child to benefit educationally from that instruction." See Rowley, 458 U.S. at 203. However, the "IDEA does not itself articulate any specific level of educational benefits that must be provided through an IEP." Walczak, 142 F.3d at 130; see Rowley, 458 U.S. at 189. The statute ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." See Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989); see also Grim, 346 F.3d at 379. Additionally, school districts are not required to "maximize" the potential of students with disabilities. See Rowley, 458 U.S. at 189, 199; Grim, 346 F.3d at 379; Walczak, 142 F.3d at 132. Nonetheless, a school district must provide "an IEP that is 'likely to produce progress, not regression,' and... affords the student with an opportunity greater than mere 'trivial advancement.'" See Cerra, 427 F.3d at 195 (quoting Walczak, 142 F.3d at 130); see also T.P., 554 F.3d at 254; P. v. Newington Bd. of Educ., 546 F.3d 111, 118-19 (2d Cir. 2008); Perricelli, 2007 WL 465211, at *15. The IEP must be "reasonably calculated to provide some 'meaningful' benefit" See Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 (2d Cir. 1997); see also Rowley, 458 U.S. at 192.

The student's recommended program must also be provided in the least restrictive environment (“LRE”). See 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. §§ 300.114(a)(2)(i), 300.116(a)(2); 8 NYCRR §§ 200.1(cc), 200.6(a)(1); see also Newington, 546 F.3d at 114; Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 108 (2d Cir. 2007); Walczak, 142 F.3d at 132; G.B. v. Tuxedo Union Free Sch. Dist., 751 F. Supp. 2d 552, 573-80 (S.D.N.Y. 2010), aff'd, 2012 WL 4946429 (2d Cir. Oct. 18, 2012); E.G. v. City Sch. Dist. of New Rochelle, 606 F. Supp. 2d 384, 388 (S.D.N.Y. 2009); Patskin v. Board of Educ., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008).

An appropriate educational program begins with an IEP that includes a statement of the student's present levels of academic achievement and functional performance, see 34 C.F.R.

§ 300.320(a)(1); 8 NYCRR § 200.4(d)(2)(i); Tarlowe v. Dep't of Educ., 2008 WL 2736027, at *6 (S.D.N.Y. July 3, 2008), establishes annual goals designed to meet the student's needs resulting from the student's disability and enable him or her to make progress in the general education curriculum, see 34 C.F.R. §§ 300.320(a)(2)(i), (2)(i)(A); 8 NYCRR § 200.4(d)(2)(iii), and provides for the use of appropriate special education services, see 34 C.F.R. § 300.320(a)(4); 8 NYCRR § 200.4(d)(2)(v).

The burden of proof is on the school district during an impartial hearing, except that a parent seeking tuition reimbursement for a unilateral placement has the burden of proof regarding the appropriateness of such placement. See N.Y. Educ. Law § 4404(1)(c); see also R.E., 694 F.3d at 184-85; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 (S.D.N.Y. Aug. 27, 2010).

B. Mootness – 2019/20 School Year Claim In its motion, the DOE asserts that all requested relief for the 2019/20 school year was addressed in the June 21, 2021 Resolution Agreement in Case No. 204987, which effectively renders moot on the merits. For the analysis set forth below, the DOE’s motion is granted with respect to the parent’s 2019/20 school year claim.

The dispute between parties must at all stages be "real and live," and not "academic," or it risks becoming moot. Lillbask v. State of Conn. Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005); see Toth v. City of New York Dep't of Educ., 720 Fed. App'x 48, 51 (2d Cir. Jan. 2, 2018); F.O. v. New York City Dep't of Educ., 899 F. Supp. 2d 251, 254 (S.D.N.Y. 2012); Patskin v. Board of Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008); Student X v. New York City Dep't of Educ., 2008 WL 4890440, at *12 (E.D.N.Y. Oct. 30, 2008); J.N. v. Depew Union Free Sch. Dist., 2008 WL 4501940, at *3-*4 (W.D.N.Y. Sept. 30, 2008); see also Coleman v. Daines, 19 N.Y.3d 1087, 1090 (2012); Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714 (1980). In general, cases dealing with issues such as desired changes in IEPs, specific placements, and implementation disputes may become moot at the end of the school year because no meaningful relief can be granted. See, e.g., V.M. v. North Colonie Cent. Sch. Dist., 954 F. Supp. 2d 102, 119-21 (N.D.N.Y. 2013); M.S. v. New York City Dep't of Educ., 734 F. Supp. 2d 271, 280-81 (E.D.N.Y. 2010); Patskin, 583 F. Supp. 2d at 428-29; J.N., 2008 WL 4501940, at *3-*4. Administrative decisions rendered in cases that concern such issues that arise out of school years since expired may no longer appropriately address the current needs of the student. See Daniel R.R. v. El Paso Indep. Sch. Dist., 874 F.2d 1036, 1040 (5th Cir. 1989).

In this case, there is no longer any live controversy relating to the parent’s enhanced-rate SETSS claim for the 2019/20 school year. In the June 21, 2021 Resolution Agreement, the DOE agreed to fund SETSS the student received during the 2019/20 school year at an enhanced rate of $125 per hour (Ex. SD-2). Accordingly, that matter is now moot.

Alternatively, an exception to the mootness doctrine provides that a claim may not be moot despite the end of a school year for which the student's IEP was written, if the conduct complained of is "capable of repetition, yet evading review." See Honig v. Doe, 484 U.S. 305, 318-23 (1988); Toth, 720 Fed. App'x at 51; Lillbask, 397 F.3d at 84-85; Daniel R.R., 874 F.2d at 1040. The exception applies only in limited situations, see City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), and is severely circumscribed, see Knaust v. City of Kingston, 157 F.3d 86, 88 (2d Cir. 1998). It must be apparent that "the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration." Murphy v. Hunt, 455 U.S. 478, 482 (1982); see Knaust, 157 F.3d at 88. Many IEP disputes escape a finding of mootness due to the short duration of the school year facing the comparatively long litigation process. See Lillbask, 397 F.3d at 85.

Controversies are "capable of repetition" when there is a reasonable expectation that the same complaining party would be subjected to the same action again. See Weinstein v. Bradford, 423 U.S. 147, 149 (1975); Toth, 720 Fed. App'x at 51; see also Hearst Corp., 50 N.Y.2d at 714-15. To create a reasonable expectation of recurrence, repetition must be more than theoretically possible. See Murphy, 455 U.S. at 482; Russman v. Board of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114, 120 (2d Cir. 2001). Mere speculation that the parties will be involved in a dispute over the same issue does not rise to the level of a reasonable expectation or demonstrated probability of recurrence. See Russman, 260 F.3d at 120.

I find that the exception to the mootness doctrine does not apply here, as the CSE should have convened to revise the student's program and develop new IEPs or IESPs for the student for the 2020/21, 2021/22 and 2022/23 school years. See 20 U.S.C. § 1414(d)(4)(A); N.Y. Educ. Law § 4402(2); 34 C.F.R. § 300.324(b)(1); 8 NYCRR § 200.4(f). Indeed, the CSE reconvened on March 15, 2021 and developed an IESP for the student for the 2021/22 which was the subject of a separate due process complaint (i.e., Case No. 204987).

Lastly, to the extent that the parent asserted that the DOE has failed to fully implement the June 21, 2021 Resolution Agreement, I note that the IDEA provides that settlement agreements reached during mediation or a resolution session are enforceable in state or federal court (R. 18-19; Ex. SD-2 at 2). See 34 C.F.R. §§ 300.506 (b)(7), 300.510(d)(2).

B. Waiver/Equitable Estoppel – 2018/19 School Year Claim The DOE has also moved to dismiss the parent’s compensatory education claim concerning the 2018/19 school year. In its motion, the DOE notes that the March 18, 2021 due process complaint in Case No. 204897 states, in part, that:

Services have been inconsistent over the previous two school years. Parent is therefore reserving their right to seek compensatory services for any mandated SETSS not provided during the 2018-19 and 2019-20 school years (Ex. SD-1 ex. B at 3).

As the June 21, 2021 Resolution Agreement was a “complete settlement of all claims contained in the impartial hearing request dated 3/18/21,” the DOE argues that the parent waived (or negotiated away) her compensatory education claim for the 2018/19 school year and should be estopped from relitigating that claim here (Ex. SD-1, SD-2 at 2).

Equitable estoppel is generally invoked to prevent one party who by words or actions has represented that certain facts are true, thereby inducing another party to act to his or her detriment, from subsequently denying the truth of those facts. See Travelers Intern. A.G. v. Trans World Airlines Inc., 722 F. Supp. 1087 (S.D. N.Y. 1989). It is an intentional relinquishment of a known right. See Orange Steel Erectors, Inc. v. Newburgh Steel Products, Inc., 225 A.D.2d 1010 (3d Dept. 1996). “The doctrine of equitable estoppel is applicable to school districts.” Greco v. Board of Educ. of the Patchogue-Medford Union Free Sch. Dist., 98 A.D.2d 721 (2d Dep’t 1983); see Application of the Bd. of Educ. of the Wappingers Cent. Sch. Dist., Appeal No. 97-29 (SRO June 25, 1997).

The DOE’s motion to dismiss the parent’s compensatory education claim for the 2018/19 school year is denied. It is well-settled that “a general reservation of rights... does not preserve arguments not specifically raised in the due process complaint notice.” Application of the Bd. of Educ. of the Ramapo Cent. Sch. Dist., Appeal No. 14-042 at 5 n.5 (SRO Dec. 31, 2014); see T.G. v. New York City Dep't of Educ., 973 F. Supp. 2d 320, 335–36 (S.D.N.Y. 2013) (holding that "catch-all allegations" in a due process complaint notice are insufficient to bring an issue within the scope of an impartial hearing); B.P. v. New York City Dep't of Educ., 841 F. Supp. 2d 605, 611 (E.D.N.Y. 2012) (rejecting the proposition that a general reservation of rights in a due process complaint notice preserves additional procedural arguments later in the proceeding). As the 2018/19 school year claim was not sufficiently plead in the March 18, 2021 due process complaint (in Case No. 204987), the parent could not have waived that claim in the June 21, 2021 Resolution Agreement (Exs. SD-1 ex. B, SD-2 at 2).

C. Dual Enrollment Services - 2018/19 School Year

Having denied the DOE’s motion to dismiss the parent’s claim for the 2018/19 school year, I will now consider the merits of that claim. As an educationally classified student with a disability, the DOE had the obligation to provide services to the student in conformity with an IESP while she attended her nonpublic school. See N.Y. Educ. Law §§ 3602-c(2)(a), (b)(1); see also 20 U.S.C. §§ 1401(9)(D), 1414(d); 34 C.F.R. §§ 300.17(d), 300.320.

While the statutory scheme of Education Law section 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 school district insofar as "[b]oards 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 N.Y. Educ. Law § 3602-c(2)(a). While it may very well be permissible for a school district to include the parent in the identification of a particular provider, especially if the parent is willing and able to do so, it does not follow that the responsibility to redress a parents' inability to locate a provider is shifted permanently to the parent. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 17-034 at 7 (SRO Aug. 10, 2017).

Indeed, the SRO has recently stated that the DOE’s current system for providing SETSS to dually enrolled students by using “independent” special educational teachers is a violation of State law. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-140 at 11 (SRO Sept. 23, 2020); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-115 at 6 (SRO Sept. 3, 2020); Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-087 at 5-6 (SRO Aug. 20, 2020).[6]

Alternatively, even if the DOE’s process is not illegal, it is ineffective. As far as this case is concerned, the process only appeared to thrust the parent into a quagmire of trying to figure out how much the public services for her daughter should cost, which is manifestly unreasonable because it is the DOE's responsibility to ensure that services are delivered, whether in accordance with an IESP, an IEP, or pursuant to the stay put rule, and cost is not a permissible reason to defer or avoid the obligation to implement a student's services. See N.Y. Educ. Law §§ 3602-c(2)(a), (7)(a)-(b).

The DOE failed to offer the student a FAPE.[7] Here, the student was dually enrolled in the DOE for the purposes of receive special education services for the 2018/19 school year. The DOE failed to develop an IESP for the student for the 2018/19 school year. There is no evidence that the DOE provided the student with the SETSS it authorized her to receive in the June 13, 2017 IESP by assigning her a SETSS provider, either before the beginning of the 2018/19 school year or thereafter (Ex. P-A). Instead, the DOE pushed that responsibility off onto the parent; to locate her own teacher and arrange for instructional services to the student (Ex. P-D). The parent here dutifully made good faith attempts to secure an approved bilingual (Yiddish) SETSS provider for the student at the DOE’s standard rate, but she was unable to do so (Ex. P-A at 2).

While school districts cannot deliver special education services called for by their educational programming in an unauthorized manner, due at least in part to the requirements that school officials and employees remain accountable under the statutory and regulatory mechanisms put in place by state and federal authorities, they can be made to pay for a privately obtained parental placement, a process that is essentially the same as the federal process under IDEA. See Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-140 at 13 (SRO Sept. 23, 2020).

D. Compensatory Educational Services

As relief, the parent seeks compensatory educational services for those services which the student did not receive during the 2018/19 school year (Ex. P-A).

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case where a denial of FAPE has occurred. See Doe v. East Lyme Bd. of Educ., 790 F.3d 440, 456 (2d Cir. 2015); L.O. v. New York City Dep't of Educ., 822 F.3d 95, 125 (2d Cir. 2016); Wenger v. Canastota Cent. Sch. Dist., 979 F. Supp. 147 (N.D.N.Y. 1997). Compensatory education relief may also be awarded to a student with a disability who remains eligible for instruction under the IDEA. See 20 U.S.C. §§ 1401(3), 1412(a)(1)(B); N.Y. Educ. Law §§ 3202(1), 4401(1), 4402(5). The purpose of an award of compensatory education is to provide an appropriate remedy for a denial of a FAPE. See E.M. v. New York City Dep't of Educ., 758 F.3d 442, 451 & n.12 (2d Cir. 2014); Newington, 546 F.3d at 123 (holding that compensatory education is a remedy designed to "make up for" a denial of a FAPE).

Likewise, SROs have awarded compensatory services to students who remain eligible to attend school and have been denied appropriate services, if such deprivation of instruction could be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. See Board of Educ. of City Sch. Dist. of Buffalo v. Munoz, 16 A.D.3d 1142 (4th Dep't 2005) (finding it proper for an SRO to order a school district to provide "make-up services" to a student upon the school district's failure to provide those educational services to the student during home instruction).

Accordingly, an award of compensatory education should aim to place the student in the position he or she would have been in had the school district complied with its obligations under the IDEA. See Newington, 546 F.3d at 123 (holding that compensatory education awards should be designed so as to "appropriately address... the problems with the IEP"); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act"); Board of Educ. of Fayette County v. L.M., 478 F.3d 307, 316 (6th Cir. 2007) (holding that "a flexible approach, rather than a rote hour-by-hour compensation award, is more likely to address [the student's] educational problems successfully"); Reid v. District of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005) (holding that compensatory education is a "replacement of educational services the child should have received in the first place" and that compensatory education awards "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA").

Having found that the DOE denied the student a FAPE for the 2018/19 school year, and that the parent was unable to secure private services for the student for that school year, the student is entitled to compensatory services. In fashioning a remedy, I note that the June 13, 2017 IESP called for the student to receive bilingual (Yiddish) SETSS for five (5) periods per week (Ex. P-A at 2) and that the DOE agreed to fund compensatory bilingual (Yiddish) SETSS for the student (for five (5) periods per week at an enhanced rate of $125 per hour) in resolution of the parent’s claim for the 2019/20 school year (Ex. SD-2). The DOE will therefore be directed to fund the student’s receipt of compensatory bilingual (Yiddish) SETSS, at a frequency of five (5) periods per week for ten (10) months, from a provider of the parent’s choosing, at an enhanced rate of no greater than $125 per hour.

VI. ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS

HEREBY ORDERED THAT:

  • • The DOE’s motion to dismiss the parent’s claim for the 2019/20 school is GRANTED, and the parent’s claim for the 2019/20 school year is DISMISSED;
  • • The DOE’s motion to dismiss the parent’s claim for the 2018/19 school year is DENIED; and the parent’s claim that the student was denied a free appropriate public education (FAPE) for the 2018/19 school years is SUSTAINED;
  • • Within thirty (30) days of its receipt of this Order, the DOE shall authorize the student’s receipt of compensatory bilingual (Yiddish) SETSS, at a frequency of five (5) periods per week for ten (10) months, from a provider of the parent’s choosing, at an enhanced rate of no greater than $125 per hour.

Dated: November 3, 2022

/s/ Jeffrey J. Schiro

Jeffrey J. Schiro, Esq.

Impartial Hearing Officer

PLEASE TAKE NOTICE

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 the 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 the 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.

DOCUMENTATION ENTERED INTO THE HEARING RECORD

PARENTS

  • • Due Process Complaint (Case No. 192194), 1/20/20, 4 pgs.
  • • Parent Retainer, 1/4/20, 1 pg.
  • • Agreement on Pendency (Case No. 192194), 5/8/20, 3 pgs.
  • • Parent Outreach, 1/1/20, 1 pg.

DEPARTMENT OF EDUCATION

  • • Motion to Dismiss, 1/20/20, 6 pgs.

ex. A Due Process Complaint ( ), 1/20/20, 4 pgs. ex. B Due Process Complaint (Case No. 204987), 3/28/21, 4 pgs.

  • • Resolution Agreement (Case No. 204987), 6/21/21, 2 pgs.

IMPARTIAL HEARING OFFICER

  • • Extension Order, 8/15/20, 1 pg.
  • • Extension Order, 9/14/20, 1 pg.
  • • Extension Order, 10/14/20, 1 pg.
  • • Extension Order, 11/13/20, 1 pg.
  • • Extension Order, 12/13/20, 1 pg.
  • • Extension Order, 1/12/21, 1 pg.
  • • Extension Order, 2/11/21, 1 pg.
  • • Extension Order, 3/13/21, 1 pg.
  • • Extension Order, 4/12/21, 1 pg.
  • • Extension Order, 5/12/21, 1 pg.
  • • Extension Order, 6/11/21, 1 pg.
  • • Extension Order, 7/11/21, 1 pg.
  • • Extension Order, 8/10/21, 1 pg.
  • • Extension Order, 9/9/21, 1 pg.
  • • Extension Order, 10/9/21, 1 pg.
  • • Extension Order, 11/8/21, 1 pg.
  • • Extension Order, 12/8/21, 1 pg.
  • • Extension Order, 1/7/22, 1 pg.
  • • Extension Order, 2/6/22, 1 pg.
  • • Extension Order, 3/8/22, 1 pg.
  • • Extension Order, 4/7/22, 1 pg.
  • • Extension Order, 5/7/22, 1 pg.
  • • Extension Order, 6/6/22, 1 pg.
  • • Extension Order, 7/6/22, 1 pg.
  • • Extension Order, 8/5/22, 1 pg.
  • • Extension Order, 9/4/22, 1 pg.
  • • Extension Order, 10/4/22, 1 pg.

Footnotes

[1] References to the hearing transcript are noted as “R.” References to exhibits admitted into evidence are noted as “Ex.” References to exhibits within exhibits are noted as “ex.”

[2] Following my appointment to this case, the parties moved to extend the case compliance date in this matter several times in order to accommodate the availability of the parties’ witnesses and in order to allow for adequate time for my review of the hearing record taken on the extensive issues raised in the parent’s due process complaint and the DOE’s motion to dismiss. In considering those requests, I weighed the cumulative impact of the relevant factors and found that the stated reasons for the extensions justified the delay in the resolution of the matter and were in accordance with the requirements of due process. Accordingly, requests for extensions of the case compliance date were granted (Exs. IHO-I – IHO-XXVII). See 34 C.F.R. § 300.515(c); 8 NYCRR § 200.5(j)(5).

[3] Learning disability means a disorder in one or more of the basic psychological processes involved in understanding or in using language (spoken or written), which manifests itself in an imperfect ability to listen, think, speak, read, write, spell, or to do mathematical calculations, as determined in accordance with section 200.4(j) of this Part. The term includes such conditions as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. The term does not include learning problems that are primarily the result of visual, hearing or motor disabilities, of an intellectual disability, of emotional disturbance, or of environmental, cultural, or economic disadvantage. 8 NYCRR § 200.1(zz)(6).

[4] When a student who resides in New York is eligible for special education services and attends a nonpublic school, Article 73 of the New York State Education Law allows for the creation of an IESP under the State's so-called "dual enrollment" statute. See N.Y. Educ. Law §3602-c. The task of creating an IESP is assigned to the same committee that designs educational programing for students with disabilities under the IDEA, namely a local CSE. See N.Y. Educ. Law § 4402; see also 20 U.S.C. § 1414(d)(1)(A)-(B); 34 C.F.R. §§ 300.320, 300.321; 8 NYCRR §§ 200.3, 200.4(d)(2).

[5] The term “free appropriate public education” means special education and related services that – (A) have been provided at public expense, under public supervision and direction, and without charge; (B) meet the standards of the State educational agency; (C) include an appropriate preschool, elementary school, or secondary school education in the State involved; and (D) are provided in conformity with the individualized education program required under section 1414(d) of this title. 20 U.S.C. § 1401(9); 34 C.F.R. § 300.17.

[6] The Commissioner of Education has made it abundantly clear, and has repeatedly held, that public school districts lack the authority to provide core instructional services through independent contractors. See Appeal of Boyd, 51 Ed. Dept. Rep., Decision No. 16,364 (June 28, 2012); Appeal of Woodarek, 46 Ed. Dept. Rep. 1, Decision No. 15,422 (July 7, 2006); Appeal of Sweeney, 44 Ed. Dept. Rep. 176, Decision No. 15,139 (Nov. 24, 2004); see also Board of Coop. Educ. Servs. for Second Supervisory Dist. of Erie, Chautauqua & Cattaraugus Ctys. v. Univ. of State Educ. Dep't, 40 A.D.3d 1349, 1350 (3d Dep't 2007).

[7] The SRO has recently noted that there is no material difference between the FAPE standard and the “equitable services standard” under the State’s dual enrollment statute, see Application of a Student with a Disability (New York City Dep’t of Educ.), Appeal No. 20-140 at 5 n.4 (SRO Sept. 23, 2020), since the dual enrollment statute has been routinely treated by the New York Court of Appeals as providing eligible students with an individual right to special education services that must be tailored to the student's particular needs by the CSE as well as the right to seek redress through the due process hearing system called for by the IDEA, see Board of Educ. of Bay Shore Union Free Sch. Dist. v. Thomas K., 14 N.Y.3d 289 (2010) (reviewing due process hearing determinations and noting that the pertinent question is what the educational needs of the particular student require); Board of Educ. of Monroe-Woodbury Cent. Sch. Dist. v. Wieder, 72 N.Y.2d 174, 188 (1988) (noting that services under the dual enrollment statute must consider the individual educational needs of the student in the least restrictive environment).