New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 560921 - NYC: 216867

FINDINGS OF FACT AND DECISION

Case Number: 216867

Student’s Name: REDACTED

(hereinafter known as “Student”)

Date of Birth: REDACTED

District: REDACTED

Hearing Requested by: REDACTED

(hereinafter known as “Parent”)

Dates of Hearing March 9, 2022

March 21, 2022

Actual Record Closed Date: March 23, 2022

Date of Decision March 31, 2022

Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 9, 2022

For the Student:

REDACTED Law Clerk (via videoconference platform)

For the NYC Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED ON MARCH 21, 2022

For the Student:

REDACTED. Attorney (via videoconference platform)

For the NYC Department of Education:

None

INTRODUCTION AND PROCEDURAL BACKGROUND

This proceeding was brought in accordance with the Individuals with Disabilities Education Act (“IDEA”), the New York State Education Law Article 89 and §3602-c by the Parent of the Student, a redacted-year-old child with a disability. On September 13, 2021 the Parent filed a Due Process Complaint (“Complaint”) against the New York City Department of Education (“District” or “DOE”) which alleged, inter alia, that the District failed to provide the Student with a free appropriate public education (“FAPE”) for the 2021-2022 school year. This Hearing Officer (“IHO”) was appointed to this matter on February 7, 2021 pursuant to the rescindment of the prior IHO.

A prehearing conference was held on February 24, 2022. A pendency hearing was held on March 9, 2022 and a due process hearing was held on March 21, 2022. The Parent submitted three exhibits March 9, 2022 and seven exhibits on March 21, 2022. All were entered into evidence. Both the Parent and REDACTED, the owner and educational director (“Director”) of REDACTED, the agency that provided services to the Student during the 2021-2022 school year (“Agency”), testified via affidavit. The Parent also testified at hearing. (Tr. 29-34). The District did not appear at either hearing nor did they submit any evidence. The record was closed on March 23, 2022 following receipt of the full transcript. The final date of compliance is March 31, 2022.

ISSUES PRESENTED

• • Whether the Individualized Education Services Program (“IESP”) dated May 20, 2020 provided the Student with the free appropriate public education (“FAPE”).
• • Whether the Parents’ unilaterally obtained program for the 2021-2022 school year is appropriate.
• • Whether there are any equitable considerations that would reduce the amount of any order for District reimbursement or payment for special education and related services.

APPLICABLE STANDARDS

IDEA Generally The IDEA (20 U.S.C. §§1400-1482) was enacted primarily (1) to ensure that students with disabilities have available to them a free appropriate public education which is designed to meet their individual needs and prepare them for further education, employment, and independent living; and (2) to protect the rights of students with disabilities and the parents of such students. (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. v. Rowley, 458 U.S. 176, 206-207 (1982)). A FAPE consists of special education and related services designed to meet a student’s unique needs which are provided in conformity with a written individualized education program. (See 20 U.S.C. § 1401(9)). 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 or the IEP is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” (See Rowley, at 192 and Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017)). In Endrew F., the Supreme Court recently clarified the substantive standard for determining whether a child’s IEP offered a FAPE. The Court held that “[t]o meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances.” Id. at 1001. The Court emphasized the text of the IDEA itself and stated:

A focus on the particular child is at the core of the IDEA. The instruction offered must be “specially designed” to meet a child’s “unique needs” though an “[i]ndividualized education program” §§1401(29), (14) (emphasis added). An IEP is not a form document. It is constructed only after careful consideration of the child’s present level of achievement, disability and potential for growth. (Endrew F. at 999).

The Court continued “[A child’s] IEP need not aim for grade-level advancement. But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.” (Endrew F. at 1000).

An appropriate IEP must include: (a) a statement of the child’s present level of academic achievement and functional performance and how the child’s disability affects the child’s involvement and progress in the general education curriculum; (b) a statement of measurable annual academic and functional goals; (c) how a child’s progress towards those goals will be measured; (d) a statement of the special education and related services to be provided to the child; (e) an explanation of the extent to which the child will participate with nondisabled students in school; and (f) the projected date for the start of services and the duration. (34 CFR § 300.320(a); 8 NYCRR 200.4(d)(2)). An IEP must be developed collaboratively, by a team that includes the child’s parents, specific teachers, a school district representative and someone who can interpret evaluations. (34 CFR § 300.321, Educ. Law §4402(a)). The “core of the statute... is the cooperative process that [IDEA] establishes between parents and schools.” (Schaffer v. Weast, 546 U.S. 49, 53 (2005)). The Second Circuit has stated that a district “must produce, in writing, an [IEP] that ‘describes the specially designed instruction and services that will enable the child to meet’ stated educational objectives and is reasonably calculated to give educational benefits to the child.” (M.W. ex rel S.W. v. NYC Dept. of Educ., 775 F.3d 131, 135 (2d Cir. 2013) (Quoting R.E. v. NYC Dept. of Ed., 694 F.3d 167 (2d Cir. 2012)).

“The importance Congress attached to the procedural safeguards [in IDEA] cannot be gainsaid.” (See R.E. at 189-190). A procedural violation of the IDEA entitles a parent to relief only if it: “(I) impeded the child’s right to a [FAPE]; (II) significantly impeded the parents’ opportunity to participate in the decision-making process regarding the provision of a [FAPE] to the parents’ child; or (III) caused a deprivation of educational benefits.” (20 U.S.C. § 1415(f)(3)(E)(ii); see P. v. West Hartford Bd of Educ., 885 F.3d 735, 748-749 (2d Cir. 2018); citing A.M. v. N.Y. City Dep't of Educ., 845 F.3d 523, 535 (2d Cir. 2017). “Multiple 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.

It is important to note that school districts are not required to "maximize" the potential of students with disabilities. (Rowley, 458 U.S. at 199; Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 381 (2d Cir. 2003)). The IDEA ensures an "appropriate" education, "not one that provides everything that might be thought desirable by loving parents." (Walczak, 142 F.3d at 132 (quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)). In addition, a child with a disability is entitled to a FAPE in the least restrictive environment (“LRE”). (20 U.S.C. §1401(9) and 34 CFR §300.17. See Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)).

Burden of Proof The District bears the burden of proof during an impartial hearing, except in a tuition reimbursement case, where the Petitioner bears the burden of proof regarding the appropriateness of a unilateral placement. (Educ. Law §4404(c)(1)). The burden of proof in this matter shall be met upon a fair preponderance of the evidence, which requires that the trier of fact find that the existence of a fact is more probable than its nonexistence.^[1] If the evidence is evenly balanced, the party with the burden of persuasion must lose. ^[2]

Dual Enrollment Under §3602-c

Under the provisions of NYS Education Law § 3602-c, students with disabilities who attend nonpublic schools are entitled to receive special education services on an “equitable basis” as compared with students with disabilities who attend public school or are directly enrolled by the school district in a nonpublic school. State guidance reflects that under §3602-c a students are entitled to receive special education services according to an Individualized Education Services Program (“IESP”) while they receive general education from the nonpublic school where their parents enrolled them.^[3] The State guidance defines the term “equitable basis” as provided “in the same manner,” “based on need” and selected from “the same range of services provided by the district to its public school students must be made available to nonpublic students, taking into account the student’s placement in the nonpublic school program.”^[4] This “dual-enrollment” statute further provides that a parent may request review of the CSE’s recommendations via impartial hearing and state level review provided under Educ. Law § 4404.

Over the past few years, the State Review Officers (“SROs”) have made clear that a school district is responsible to directly provide, via a district-employed provider, the special education services it recommends through its IESPs. (See e.g. Application of a Student with a Disability, Appeal No. 20-087). Most recently, the SROs have determined that the appropriate way to determine the remedy for a denial of equitable special education services under §3602-c followed by the Parent’s subsequent decision to locate a private provider, is to apply the Burlington/Carter analysis which is used to determine tuition reimbursement cases. (See Application of a Student with a Disability, Appeal No. 21-101; Application of a Student with a Disability, Appeal No. 21-068; Application of a Student with a Disability, Appeal No. 21-028).

Tuition Reimbursement In Burlington School Comm v. Dept of Education, 471 U.S. 359 (1985), the Court determined that Congress intended retroactive reimbursement to parents by school officials as an available remedy in a proper case under the IDEA. In cases where the relief sought is tuition reimbursement, the applicable three-prong analysis is contained in Burlington and its progeny. (See Florence County School Dist. Four v. Carter, 510 U.S. 7 (1993)). When applying a Burlington/Carter analysis it is necessary to determine if (1) the school district failed to offer and/or provide a FAPE to the Student; (2) the services selected by the Parents were appropriate; and (3) the equitable considerations support the parents’ claim.

Compensatory Education

Impartial hearing officers have broad discretionary authority to grant such relief as they deem appropriate for violations of FAPE. (20 U.S.C. §1415(i)(2)(c)(iii); See Burlington, 471 U.S. 359 (1985). Forest Grove Sch. Dist. v. T.A., 557 U.S. 230 (2009); Frank G. v. Bd of Educ., 459 F.3d 356, 371 (2d Cir. 2006)). Compensatory education “should aim to place disabled children in the same position they would have occupied but for the school district’s violation of the IDEA.” Reid v. District of Columbia, 402 F.3d 516, 43 IDELR 32 (D.C. Cir. 2005). “Compensatory education involves discretionary, prospective, injunctive relief crafted by a court [and/or hearing officer] to remedy what might be termed an educational deficit created by an educational agency’s failure over a given period of time to provide FAPE to a student.” Id. at 523 citing G. ex rel. RG v. Fort Bragg Dependent Schls, 343 F.3d 295, 309, 40 IDELR 4 (4th Cir. 2003).

• • FINDINGS OF FACT
• • During the 2021-2022 school year the Student attended a private parochial school in Brooklyn. (Par. Ex. A p. 1; Par. Ex. G p. 3 ¶ 20). A “turning five” IESP was developed for the Student for the ten-month 2020-2021 school year pursuant to a CSE meeting held on May 20, 2020 (“2020 IESP”). (Pendency Ex. B; Par. Ex. D p. 2 ¶ 4)^[5]. The 2020 IESP recommended no special education teacher support and reduced related services as compared to the prior CPSE IEP dated June 13, 2018 (“2018 IEP”). No IESP or IEP was developed for the 2021-2022 school year. (Par. Ex. D p. 2 ¶ 6). The Parent testified that the Student received no physical therapy for the 2021-2022 school year. (Par. Ex. D p. 3 ¶ 13). The Parent claims that the 2020 IESP is not appropriate for the Student. (Par. Ex. A).
• • The 2018 CPSE IEP, developed when the Student was three-years-old, recommended: special education itinerant teacher services (“SEIT”), REDACTED, in a group of two, five hours per week; speech-language therapy (“SLT”), in a group of two, REDACTED, twice weekly for 30-minute sessions; physical therapy (“PT”), in a group of two, twice weekly for 30-minute sessions; and occupational therapy (“OT”), in a group of two, twice weekly for 30-minute sessions. (Par. Ex. B p. 12, Ex. D p. 1 ¶ 3). The 2020 IESP recommended only the related services of OT, individual service, twice weekly for 30-minute sessions and SLT, group service, REDACTED, for three weekly 30-minute sessions. (Pendency Ex. B; Ex. D p. 2 ¶ 4). On September 13, 2021 the Parent sent a ten-day notice informing the DOE that the Parent intended to implement the program contained in the 2018 IEP and seek DOE funding. (Par. Ex. C; Ex D p. 2 ¶ 7). The Parent entered into an agreement with the Agency to provide the Student with special education support, SLT and OT for the 2021-2022 school year. (Par. Ex. D pp. 2-3 ¶¶ 9-11). The Parent testified that she is unable to pay for the services. (Par. Ex. D p. 3 ¶ 11).

The Director testified via affidavit that the Student received five hours per week of SEIT services for the 2021-2022 school year, for which the Agency charges $160 per hour. (Par. Ex. G p. 2 ¶¶ 8, 13). The Agency has also provided the Student with both OT and SLT for the 2021-2022 school year, twice weekly for 30-minute sessions. (Id. p. 2 ¶¶ 14-15). The Agency charges $185 per hour for these services. (Par. Ex. G p. 2 ¶ 8). The Agency providers are certified and/or licensed in their respective areas. (Par. Ex. H). The Director stated that the Student has made progress but her “academic and social delays warrant the need for continued services.” (Par. Ex. G p. 3 ¶ 24). The Director testified that the Student required the continuation 1:1 SEIT for five hours per week and both SLT and OT on a 1:1 basis, twice weekly for 30-minute sessions. (Id. pp. 3-4 ¶¶ 25-27). The Parent submitted a progress report (“Progress Report”) dated March 20, 2022 that reflects the Student’s academic and social-emotional goals as well as the progress she has made. (Par. Ex. I). An OT progress report describes the Student’s sensory, attention and motor challenges and progress. (Par. Ex. J).

The District’s Provision of FAPE The threshold issue in this case is whether or not the District provided or offered a FAPE for this student during for the 2021-2022 school year. The DOE failed to appear for the pendency hearing and the due process hearing. The District presented no witnesses nor evidence. The District failed to develop an IESP or IEP for the 2021-2022 school year and has failed to implement services for the Student for this school year. The District has thus failed to satisfy its burden that it provided or offered a FAPE to the Student for the 2021-2022 school year. The Parent has prevailed on Prong I of the Burlington/Carter analysis.

Appropriateness of the unilaterally obtained SEIT services

This Parent also prevails on the question of the appropriateness of the unilaterally obtained SEIT instruction and related services, as she submitted testimony and progress reports that demonstrated that the services were tailored to the Student and were calculated to enable her to make progress. (Par. Ex. G, I, J; see also Finding of Fact, supra). The unilaterally obtained SEIT and related services were appropriate according to a Burlington/Carter analysis. Prong II has been satisfied.

Equitable Considerations The Parent cooperated with the District. The Parent testified that although she was in contact with the CSE prior to the IEP meeting on March 20, 2020 she did not receive notice of the meeting and was therefore unable to attend. (Par. Ex. D, p. 2 ¶ 5). She sent a ten day notice. (Par. Ex. C). The District has provided no evidence to suggest that the Parent has refused to cooperate or otherwise acted in bad faith, thus there are no equitable considerations that would undercut the Parent’s request for relief, therefore she has satisfied Prong III.

Direct Funding The Parent signed an agreement with the Agency that reflects a legal obligation of the Parent to pay for the Agency’s services if the DOE ultimately does not pay. (Par. Ex. E). The Parent requests relief in the form of direct payment by the DOE to the Agency for SEIT and related services for the 2021-2022 school year. After a full Burlington/Carter analysis is satisfied, a district may be required to pay a private placement or service provider directly. In some cases, an IHO, SRO or court may order a school district to directly pay retroactive tuition when the parent has signed a contract and is legally obligated to pay the private tuition but is unable to do so due to lack of financial resources. (Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011) See E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014)). The Parent lacks the financial resources to pay for the services for the Student. (Par. Ex. F).

During the pendency of this matter, the Student received all of her special education and related services with the exception of physical therapy. (See supra Findings of Fact). The Student shall receive a compensatory bank of physical therapy to make up for the sessions she missed during this period of time.

ORDER

NOW THEREFORE BASED ON THE FOREGOING, it is

ORDERED that the DOE failed to provide a FAPE to the Student for the 2021-2022 ten-month school year; and it is further;

ORDERED that the District will continue to directly fund, at a reasonable market rate, the Student’s special education program as recommended by the June 13, 2018 IEP, including:

• • Special education itinerant teacher services (“SEIT”), REDACTED, in a group of two, five hours per week.
• • Speech-language therapy, in a group of two, REDACTED, twice weekly for 30-minute sessions.
• • Physical therapy, in a group of two, twice weekly for 30-minute sessions.
• • Occupational therapy, in a group of two, twice weekly for 30-minute sessions; and it is further;

ORDERED that that the District shall establish for the Student a compensatory bank of 30 hours of 2:1 physical therapy to be provided at the Student’s school by a licensed provider of the Parent’s choosing, at a reasonable market rate, to be paid by the District upon receipt of invoices from the provider, with documentation of the dates of service to the Student, and such hours will not expire until September 30, 2022, and it is further;

ORDERED that all relief not specifically granted herein is DENIED.

Dated: March 31, 2022

Rachel Gibbons

Rachel Gibbons, Esq.

Impartial Hearing Officer

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

A. DPC 9/13/21 6

B. CPSE IEP 6/13/18 17

Pendency B. IESP 5/20/20 12

C. Ten day notice 9/13/21 3

D. Affidavit of Parent 3/15/22 3

E. Parent Contract 8/23/21 2

F. Parent tax return 2020 2

G. Affidavit of REDACTED 3/15/22 4

H. Provider credentials undated 3

I. SETSS progress report 3/20/22 5

J. OT progress report 3/19/22 1

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.

Footnotes

[1] See Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602, 622 (1993).

[2] Director, Office of Worker’s Compensation Programs v. Greenwich Colliers, 512 U.S. 267, 281 (1994).

[3] (“Chapter 78 of the Laws of 2007 – Guidance on Parentally Placed Nonpublic Elementary and Secondary School Students with Disabilities Pursuant to the Individuals with Disabilities Education Act (IDEA) 2004 and New York State (NYS) Education Law Section 3602-c,” Attachment 1, preface, VESID Memo Sept. 2007).

[4] (Id., Attachment 1 p. 11).

[5] The Parent submitted the CPSE IEP dated June 13, 2018 as Parent Ex. B at the due process hearing on March 21, 2022. The IESP dated May 20, 2020 was submitted as Parent Ex. B during the pendency hearing on March 9, 2022. To distinguish between the two exhibits, the May 20, 2020 IESP will be called Pendency Ex. B, and the June 13, 2018 CPSE IEP will be designated Par. Ex. B)