New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 568114 - NYC: 223167

FINDINGS OF FACT AND DECISION

Case Number: 223167

Student's Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested By: Parent

Date of Hearing: 05/05/2022

05/11/2022 Pendency Hearing

06/02/2022

Hearing Officer: Daniel Ajello Esq.

Actual Record Close Date: 06/02/2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/05/2022

(All present by video or telephone)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED ON 05/11/2022

(All present by video or telephone)

For the Student: NONE

For the Department of Education: NONE

NAMES AND TITLES OF PERSONS WHO APPEARED ON 06/02/2022

(All present by video or telephone)

For the Student: [REDACTED], ESQ., Attorney

For the Department of Education: [REDACTED], District Representative

DOCUMENTATION ENTERED INTO THE RECORD

PARENT

Entered 05/05/2022

• • Due Process Complaint (DPC), 12/27/2021, 6 pages
• • Individualized Education Services Program (IESP), 12/13/2021, 11 pages
• • Ten Day Notice (TDN), 12/27/2021, 2 pages
• • Parent Affidavit, 05/04/2022, 2 pages

DEPARTMENT OF EDUCATION

NONE

IMPARTIAL HEARING OFFICER

Entered 05/05/2022

I Notice of Appointment, 04/25/2022, 3 pages

ENTERED 05/11/2022

II Pendency Agreement, 05/09/2022, 2 pages

INTRODUCTION

On 04/25/2022, I was appointed the Impartial Hearing Officer (“IHO”) by the Department of Education’s Impartial Hearing Office to conduct an impartial hearing pursuant to the provisions of the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §1415(f) and Article 89 of the Education Law of the State of New York.

Parent requested a determination of the Student’s Pendency during the proceedings. (Ex A 2)

Hearing to determine Student Pendency was held on 05/11/2022.

At the time of the Pendency hearing the DOE had signed the Pendency Agreement, which was identified, and entered into the Record as IHO Ex II.

Appended to the record are lists of persons in attendance and the documents received in evidence.

BACKGROUND

This matter was instituted by the impartial hearing request, of 12/27/2021. (Ex A)

Parent sets forth Student uncontroverted educational history, and allegations, which led to the filing of the DPC:

Student is known to the DOE since entering the Committee of Special Education (CSE), classified with a Learning Disability, placed in a private religious school for the 21-22 school year. (Ex A 1)

Parent is concerned regarding implementation of the 12/13/2021 IESP. (Ex B)

Parent contends an inability to locate Special Education Teacher Support Service (SETSS) provider on their own accord and the District has failed to implement their own recommendations. Without supports, the parental mainstream placement is untenable, and the failure to either implement the services or provide a placement is a denial of a Free Appropriate Public Education (FAPE). (Ex A 2)

“Parent utilized DOE’s online resources to locate SETSS providers, but the providers they contacted were unable to service their child, either due to the low standard rate offered by the DOE, or due to the general dearth of providers in this neighborhood. Parent has located appropriate services providers independently for the 2021-2022 school year at their prevailing rate.” (Ex A 2-3)

Parent seeks, in light of the alleged DOE failure, to continue services as last established, and as currently continue under Pendency Order. Parent also seeks Compensatory Services for any missed services for the 21-22- school year. (Ex A 3)

POSITION OF THE PARTIES

Hearing commenced, on 05/05/2022, the date set to allow the DOE an opportunity to defend against the allegations contained in the DPC.

The DOE Representative appeared and stated that the issue, from the DOE perspective, was that the DOE objected to the Parent obtained SETSS provider Rate. (T 4-5)

Beyond the DOE statement, it presented no evidence. (T 5)

Hearing concluded, on 06/02/2022.

The DOE Representative noted there is no objection to the services demanded by the Parent, the issue relates solely to the rate sought.

Parent Attorney relies upon Documentary Evidence, which supports the Parent’s case, and is reviewed below.

• • Due Process Complaint (DPC), 12/27/2021, 6 pages Parent allegations and sought after relief.
• • Individualized Education Services Program (IESP), 12/13/2021, 11 pages
• • Classifies Student as one with a Learning Disability. (Ex B 1)
• • Recommends Student services including:
• • Special Education Teacher Support Services (SETSS), Direct, Group, [REDACTED], 4 times weekly
• • Ten Day Notice (TDN), 12/27/2021, 2 pages Parent notifies the District of its inability to implement the recommended Student services, requests assistance from the District, and notices that the Parent will implement the services and seek District funding. (Ex C 2)
• • Parent Affidavit, 05/04/2022, 2 pages Parent provides uncontroverted Testimony that includes:
• • Student academic and social emotional struggles require a lot of “extra assistance” (Ex D 1);
• • IESP recommends SETSS services;
• • Despite her efforts DOE providers are not available to deliver the SETSS services
• • (Ex D 1);
• • Parent contacted and retained private Agency to deliver services;
• • Parent signed contract with Agency who is delivering services of 4 weekly SETSS hours;
• • Parent cannot afford to front the costs of these services; and
• • Parent seeks reimbursement at reasonable market rate for SETSS services (Ex D 2)

FINDING OF FACTS AND DECISION

Purposes of the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. §§ 1400-1482) are (1) to ensure that students with disabilities have available to them a 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 (2) to ensure that the rights of students with disabilities and parents of such students are protected (20 U.S.C. § 1400[d][1][A]-[B]; see generally Forest Grove v. T.A., 129 S. Ct. 2484, 2491 [2009]; Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07 [1982]).

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 (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 indicated that "[m]ultiple procedural violations may cumulatively result in the denial of a FAPE even if the violations considered individually do not" (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]).

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 (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" (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" (Walczak, 142 F.3d at 132 [quoting Tucker v. Bay Shore Union Free Sch. Dist., 873 F.2d 563, 567 (2d Cir. 1989)] [citations omitted]; see Grim, 346 F.3d at 379). Additionally, school districts are not required to "maximize" the potential of students with disabilities (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'" (Cerra, 427 F.3d at 195 [quoting Walczak, 142 F.3d at 130] [citations omitted]); see 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" (Mrs. B. v. Milford Bd. of Educ., 103 F.3d 1114, 1120 [2d Cir. 1997]; see Rowley, 458 U.S. at 192).

A board of education must offer a free appropriate public education (FAPE) to each student with a disability residing in the school district who requires special education services or programs (20 U.S.C. § 1412[a][1][A]; Educ. Law § 4402[2][a], [b][2]). However, the IDEA confers no individual entitlement to special education or related services upon students who are enrolled by their parents in nonpublic schools (see 34 CFR 300.137[a]). Although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled privately by their parents in nonpublic schools, such students are not individually entitled under the IDEA to receive some or all of the special education and related services they would receive if enrolled in a public school (see 34 CFR 300.134, 300.137[a], [c], 300.138[b]).

However, under State law, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational "services" for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2]). "Boards 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" (Educ. Law § 3602-c[2][a]). In such circumstances, the district of location's CSE must review the request for services and "develop an [IESP] for the student based on the student's individual needs in the same manner and with the same contents as an [IEP]" (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district (Educ. Law § 3602-c[2]).

Thus, under State law an eligible New York State resident student may be voluntarily enrolled by a parent in a nonpublic school, but at the same time the student is also enrolled in the public school district for the purpose of receiving special education programming under Education Law § 3602-c, services for which a public school district may be held accountable through an impartial hearing.

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 (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir. 2012]).

When a student with a disability is enrolled in a non-public school, New York State Education Law Section 3602-c, the dual enrollment statute, applies. Section 3602-c (2) mirrors the Federal requirement of provision of educational services to students with disabilities at public and private schools into state law. Under section 3602-c (2)(b)(1), the committee on special education must make special education programs and services available to students with disabilities attending non-public schools located within the school district, on an equitable basis, as compared to those provided to students with disabilities attending public schools within the district. Upon request of the parent, a committee on special education must develop an IESP for the student based on the student’s individual needs in the same manner and with the same contents as an individualized education program. Section 3602-c (2)(c) provides for due process complaints relating to compliance of the school district with child find and evaluation requirements.

State guidance explains that providing services on an "equitable basis" means that "special education services are provided to parentally placed nonpublic school students with disabilities in the same manner as compared to other students with disabilities attending public or nonpublic schools located within the school district" ("Chapter 378 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,", VESID Mem. [Sept. 2007], available at http://www.p12.nysed.gov/specialed/publications/policy/nonpublic907.pdf). The guidance document further provides that "parentally placed nonpublic students must be provided services based on need and the same range of services provided by the district of location to its public school students must be made available to nonpublic students, taking into account the student's placement in the nonpublic school program" (id.).

The district "'need not make FAPE available'" to a student who has been parentally placed in a private school in the district of location and who has been evaluated and provided with an IESP by the district of location.

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 district insofar as "boards 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" (Educ. Law § 3602-c[2][a]). See, Application of Student with a Disability, SRO Appeal

16-008.

The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district.

Id.

Additionally, unlike the provisions of the IDEA, section 3602-c provides that a parent may seek review of the recommendation of the CSE pursuant to the impartial hearing and State-level review procedures pursuant to Education Law § 4404. Id. Except for in circumstances not applicable here, the burden of proof is on the school district during an impartial hearing (Educ. Law § 4404[1][c]; see R.E. v. New York City Dep't of Educ., 694 F.3d 167, 184-85 [2d Cir.

2012]; M.P.G. v. New York City Dep't of Educ., 2010 WL 3398256, at *7 [S.D.N.Y. Aug. 27,

2010]).

While it may very well be permissible for a 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 Student with a Disability, SRO Appeal 17-034.

In this matter the DOE presents no evidence defending against the allegations contained in the DPC.

Evidence supports continuing Student services, as already being delivered via Pendency. (IHO Ex II, Ex B)

The DOE does not offer any evidence to contest the Student need for the sought after services.

The DOE presents no evidence that it endeavored to locate a provider for the mandated services.

In this case, at no point during the impartial hearing did the District offer any evidence that it attempted to select or assigned a service provider to deliver the services required by the student's IEP during the 2021-2022 school year.

DOE was aware of the particular issue, since at least the time of filing of the DPC, back in December of 2021. (Ex A)

The district does not challenge that the parent is authorized to select a provider of her choosing.

The district does not explain why it did not simply schedule the mandated services as envisioned under the IEP and, in essence, inform the parent where and when the SETSS would be available, and at which time the parent would have the responsibility to produce the student in order to receive the services.

A district cannot be absolved of its statutory obligation to implement services for the student simply by being inactive in implementing the mandated services. The district had the obligation to provide services to the student in conformity with her IEP, or IESP (Educ. Law § 3602-c[2][a], [b][1]; see 20 U.S.C. § 1401[9][D]; 34 CFR 300.17[d]; see also 20 U.S.C. § 1414[d]; 34 CFR 300.320).

I find that the DOE failed to facilitate the mandated IESP services, for the Student, for the 21-22 school year. (Ex B)

This failure results in a denial of FAPE.

I find the evidence outlined above supports the necessity of the sought after Student services via District funding.

Parent provides uncontroverted Testimony of an inability to pay for contracted services. (Ex D)

COMPENSATORY SERVICES

Compensatory education is an equitable remedy that is tailored to meet the unique circumstances of each case (Wenger v. Canastota, 979 F. Supp. 147 [N.D.N.Y. 1997]). In New York State, a student who is otherwise eligible as a student with a disability, may continue to obtain services under the IDEA until he or she receives either a local or Regents high school diploma (34 CFR 300.102[a][3][i]; 8 NYCRR 100.5[b][7][iii]; Application of the Bd. of Educ., Appeal No. 05-084; Application of the Bd. of Educ., Appeal No. 05-037), or until the conclusion of the ten-month school year in which he or she turns age 21 (Educ. Law §§ 3202[1], 4401[1], 4402[5][b]; 8 NYCRR 100.9[e], 200.1[zz]; see 34 CFR 300.102[a][1], [a][3][ii]; Application of a Child with a Disability, Appeal No. 04-100).

The nature and extent of compensatory education services that courts have recognized varies according to the facts and circumstances of a given case; however, as a remedy that arises out of the equitable jurisdiction of 20 U.S.C. §1415, courts will craft compensatory education relief that “should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA.” Reid, 401 F.3d, at 516; Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008)(same); see, e.g., G. ex rel. RG v. Fort Bragg Dependent Sch., 343 F.3d 295 (4th Cir. 2003) (“Compensatory education involves discretionary, prospective, injunctive relief crafted by a court to remedy what might be termed an educational deficit created by an educational agency's failure over a given period of time to provide a FAPE to a student.”); see also Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1497 (9th Cir. 1994)(Noting that “it may be a rare case when compensatory education is not appropriate” to remedy an IDEA violation.).

In determining a compensatory award, most courts seek to ascertain the child’s needs at the time the relief is sought.10 Reid, 401 F.3d 516; see, e.g., Streck, 2010 WL 4847481, at *2 (Court awarded compensatory education relief that required the school district to “open and maintain for 3 years, an escrow account,” which will be used to pay for student’s reading instruction at Landmark College and assistive technology supports.); Woods v. Northport Pub. Sch., 487 Fed. Appx. 968, 2012 WL 2612776, at *978-79 (6th Cir. July 5, 2012) (upholding IHO award of 768 hours of compensatory tutoring as “reasonable recover” for a lengthy denial of FAPE; given the student’s age, the “window of opportunity to become usefully literate ha[d] begun to close.”).

If Student is found to be entitled to compensatory education under applicable law; compensatory education is an equitable remedy that arises out of the jurisdiction of 20 U.S.C. § 1415; equitable factors do not bar relief here and no inequitable conduct was established on the part of the parents. N.R. ex rel. T.R. v.

Dep’t of Educ. of City Sch. Dist. of City, No. 07 Cv. 9648 (BSJ), 2009 WL 874061 (S.D.N.Y. Mar. 31, 2009) (Reversing the SRO and upholding the award; Court found that it is well established that, in the absence of evidence demonstrating that the parents failed to cooperate with the CSE, or otherwise engaged in conduct that precluded the development of an appropriate IEP, equitable considerations generally support a claim for tuition.); Wolfe v. Taconic Hills Cent. Sch. Dist., 167 21 F.Supp.2d 530 (N.D.N.Y. 2001)( the equities—requires a balancing of both parties’ conduct and interest—not merely the actions of the parent).

In this case the Student is found to be entitled to an SETSS services, for the 21-22 school year.

In light of the District failure to facilitate the services, or even respond to the Parent concerns, then if the Student was unable to obtain services they should not be lost, and instead the ability to recoup lost services is appropriate.

There are no facts established here that show that the parent failed to cooperate or acted inequitably to interfere with the DOE’s ability provide Student services.

I find the Student is entitled to any missed 21-22 sessions, as Ordered below.

ORDER

• • The Department of Education failed to offer the Student a FAPE for the 21-22 school year, by failing to facilitate the required, mandated, Student services, for the 21-22 School Year.
• • The DOE shall fund Student services, for the entire 21-22 school year, as follows:

• Special Education Teacher Support Services (SETSS), Direct, Group, [REDACTED], 4 times weekly.

Services to be directly funded, by the District, at reasonable market rate.

3. Student shall be authorized to utilize any missed sessions, as Ordered above, for the 21-22 school year, through 12/31/2022.

4. This decision is subject to appeal and review by the State Review Officer.

DATED: June 2, 2022

DANIEL AJELLO

DANIEL AJELLO

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.

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