New York City Department of Education, Impartial Hearing Decision

FINDINGS OF FACT AND DECISION

Case Number: 226196

Student’s Name: [REDACTED]

Date of Birth: [REDACTED]

District: [REDACTED]

Hearing Requested by: [REDACTED], Parent

Date of Hearing: 7/20/22

9/13/22

11/4/2022

11/21/2022

12/22/23

1/20/23

2/15/23

3/13/23

Record Close: 9/28/23

Hearing Officer: ANNETTE HICKS GILL, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

JULY 20, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

SEPTEMBER 13, 2022 *

For the Student:

[REDACTED], J.D., Law Clerk

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 4, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

NOVEMBER 21, 2022 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

DECEMBER 22, 2022 *

For the Student:

NONE

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 20, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 15, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

For the Department of Education:

[REDACTED], ESQ., District Representative

NAMES AND TITLES OF PERSONS WHO APPEARED

MARCH 13, 2023 *

For the Student:

[REDACTED], ESQ., Attorney

[REDACTED], Parent Student

For the Department of Education:

[REDACTED], ESQ., District Representative

* All appearances were by video conference.

This case was brought before the undersigned Impartial Hearing Officer pursuant to appointment by the New York City Department of Education (DOE) under the Individual with Disabilities Education Act (IDEA), 20 United States Code §1415(f)(1). [REDACTED] (Student) is a [REDACTED]-year-old student whose parent [REDACTED] (Parent) brought the instant action, arguing that the DOE had failed to provide their child with a free appropriate public education (FAPE) for the 2019-20 and 2020-21school years.

The Impartial hearings were conducted on November 4, 2022, November 21, 2022, January 20, 2023, February 15, 2023, and March 13, 2023. Appropriate extensions were granted, and the record was closed on September 28, 2023.

DISTRICT AND PARENT POSITIONS

Parent’s Position [REDACTED] has been identified by the Committee on Special Education (“CSE”) as a student with a disability and is classified with a Speech or Language Impairment. For the 2021/2022 school year, [REDACTED] is parentally placed in [REDACTED] which is a private religious school and provides mainstream classes in a 25:1 setting.

His Parents are concerned regarding DOE’s failure to implement the 11/28/2016 IEP for the 2019-20 and 2020-21 school years. Parent has been unable to locate SETSS and related services providers 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 FAPE. As a result of DOE’s failure to implement the IEP, [REDACTED] was unable to utilize the SETSS and related services to which they were mandated.

Parent’s Affidavit (Exhibit C) [REDACTED], Parent declares:

That his son [REDACTED] struggles in many academic and social/emotional areas and requires a lot of extra assistance. He believes that without the extra assistance he will not be able to maintain his mainstream placement. Pursuant to his IESP dated 11/28/2016, [REDACTED] was mandated on a weekly basis for the following: SETSS, Direct Service, Group Service, Yiddish, 5 periods per week; and Speech-Language Therapy, Individual Service, Yiddish, 2x30 minutes per week. Despite his best efforts, he was unable to locate a SETSS or Speech-Language Therapy provider for [REDACTED]. He made many phone calls to independent providers on the list that is published on the DOE website, and none of them were available to service my child. The DOE did not make available any SETSS or Speech-Language Therapy provider. [REDACTED] did not receive SETSS or Speech-Language Therapy from the NYCDOE from 9/1/2019 until 6/30/2020 and from 9/1/2020 until 6/30/2021.

He requests that [REDACTED] receive a bank of 400 periods of SETSS and 80 hours of Speech-Language Therapy corresponding to the 80 weeks during which the District failed to implement its own recommendations. District’s Position As stated by the District at the March, 13, 2023 Hearing, the Board of Education, of course, must offer a free and appropriate public education to each student with a disability residing in the School District, who requires special education services or programs, under the IDEA in New York State Education Law. However, the IDEA confers no individual entitlement to special education or related services for students who are enrolled by their parents in nonpublic schools. That's codified in 34 CFR 300.137(a). Now, although districts are required by the IDEA to participate in a consultation process for making special education services available to students who are enrolled in private schools or nonpublic schools, those students are not individually entitled under the IDEA to receive some or all the same special education and related services they would receive if enrolled in a public school. Under State law, however, as we know, parents of a student with a disability who are privately enrolled in a private school may seek to obtain educational services for their child, known as equitable services, by filing a request for those services in the district of location where the nonpublic school is located, and they're required to make that request on or before the first day of June preceding the school year, in which the request for services -- in which the services are being sought, and that's under Education Law Section 3602-c(2).

I want to point out that here, Parent hasn't supplied any evidence of having made any requests for services in either of these two school years prior to the start of the school years. Instead, Parent turned around, after the school years were over, and then alleged that they weren't provided services for those years. And it's important to consider that in considering the equities of this case, and compliance with the regulations.

Parent is, apparently, seeking a large bank hours of compensatory education for services that were allegedly missed during this period of time. I would argue that there's no entitlement to compensatory education under the Education Law when it comes to an IESP. That's something that relates to a FAPE and an IEP. But apart from that, parent didn't make this request until well after the school years were over, and the student currently has an IEP in place, a recent one. There was an IEP developed in the Spring of 2022, which, I think, actually, was March 29th, 2022, which has been in place for this current school year.

The IESP has already taken into account the student's needs, and what they are at that point in time, and they've offered services. And to go back and offer a huge bank of compensatory hours and services isn't really appropriate when the student already has an IESP in place, currently, that's attuned to his needs, and that's not being challenged in this case. And that reflects his current needs, and what he needs to make educational progress in his private school, and to assist him in doing so, and reflects that, it doesn't make sense to award a giant bank of hours.

The Parent's claims for the 2019/2020 and 2020/2021 school years are time-barred because the parent didn't actually request services that year. The DOE did send a prior written notice to parent in advance of that school year, and that is in evidence. According to the DOE's records, the student was placed in a nonpublic school, and if they want services for next year, they should send back the form, and notify the DOE. And the parent was on notice, at that point, that what they needed to do if they wanted services, and they didn't follow those instructions and regulations bars any entitlement to make-up services.

FINDINGS OF FACT

This matter involves a request for a due process hearing, filed on May 3rd, 2022, by the Parents of Student [REDACTED]which alleged that the Department of Education failed to provide equitable services for two different school years, the 2019/'20 school year and the 2020 to '21 school year. And Parent asserts that the services should have been provided in accordance with a 2016 IEP, specifically from November 28, 2016.

11/28/2016 IEP Meeting:

The CSE convened on 11/28/2016 to conduct an IEP meeting and subsequently recommended the following: 1. SETSS, Direct Service, Group Service, Yiddish, 5 periods per week; and 2. Speech-Language Therapy, Individual Service, Yiddish, 2x30 minutes per week. Motion for Partial Summary Judgment On November 4, 2022, a motion for Partial Summary Judgement was brought before the Impartial Hearing Officer (IHO) on the Due Process Complaint seeking remedies for the 2019-2020 and 2020-2021 school years on or about November 4, 2022. District moved under the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1415(f)(3)(c); N.Y. Educ. Law § 4404(1)(a) or for judgment on the complaint arguing that the claim pertaining to the 2019-2020 school year must be dismissed with prejudice because it is time-barred under the two-year statute of limitations. By decision dated March 7, 2023 the IHO denied the District’s motion for partial summary judgment. The District asserts that the Parent’s claim is outside of the Statute of Limitations even taking the tolling period into consideration. District alleges that the accrual began at the beginning of the school year. The IHO found that the District fails to point to any case law holding where the District’s failure to implement its IEP is effectively a refusal to do so for the entire year. Its position further asserts that the Parent knew or should have known that.

In denying the motion, the IHO found that this case presents too many variables and assumptions that aren’t based on anything that is concrete, or even reasonable. Granting the motion would render the Parent’s claim inadequate as a matter of law. Additionally, such a decision is not well-suited to this stage of litigation. Choosing the first day of the 2019-2020 year is arbitrary and presumptuous. IHO agrees that there is no way the Parent knew or should have known at the beginning of the year that the District would fail to implement its own recommendations for the duration of the year. Hearings Impartial hearings were conducted on November 4, 2022, November 21, 2022, January 20, 2023 and March 13, 2023. The 11/4/2022, 11/21/2022 and 1/20/2023 hearings heard arguments for and against the partial motion for summary judgment. At the March 13, 2023 Hearing [REDACTED], ESQ and [REDACTED], Parent appeared for the Petitioner/Student. [REDACTED]appeared for the District. At the Hearing Counsel for the student argued the FAPE was denied and rejected the District's contention that the child is not entitled to the outlined services. The child is duly enrolled. Pursuant to 3602-c and 8 4404, we believe that the child's entitled to receive these services as a matter of right. The District failed to implement these services, and so we contends that the child is entitled to compensation. Counsel further argued, with regard to the District's arguments related to June 1st, we believe that those arguments should be barred because the District has waived their Timing Defenses. Timing Defenses have to be made timely, and the District is bringing that up for the first time at the actual hearing, as opposed to objecting to it in a motion to dismiss, or some other venue. Further than that, disagrees with the District‘s contention that that the June 1st clause of 3602-c 24 would bar the Parents from receiving these services. The Parents are entitled to compensation for those services to bring the student up to par. With regards to an updated IESP, its not relevant to the issue with regards to compensation of these services. The student requests the IHO make a finding that there has been a denial of FAPE, and issue an order implementing the program and compensating the Parents for the 19 '19/'20 and the '20/'21 school years.

The District closed by stating that the Parent's testimony doesn't really support that she took the required action to request services in the years in question. And if anything, her recollection is very hazy.

CONCLUSIONS OF LAW

The decision in this case rests on a determination of the three-pronged test set forth by the United States Supreme Court in the Burlington case, which provided that a board of education may be required to pay for educational services obtained for a child by the child’s parents, if the services offered by the board of education were inadequate or inappropriate, the services selected by the parents were appropriate, and equitable considerations support the parents’ claim. School Committee of the Town of Burlington v. Dept. of Educ., Massachusetts, 471 U.S. 359 (1985); Florence County Sch. Dist. Four v. Carter, 510 US 7 (1993). ISSUE 1 - Appropriateness of School District Program

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 CFR §300.320(a)(1); 8 NYCRR §200.4(d)(2)(i); see also Tarlowe v. New York City Bd. Of Educ., 2008 WL 2736027 (SDNY July 3, 2008), noting that a CSE must consider, among other things, the “results of the initial evaluation or most recent evaluation” of the student, as well as the academic, developmental, and functional needs of the student. The IEP must accurately reflect the results of evaluations to identify the student's needs, establish annual goals related to those needs, and provides for the use of appropriate special education services. 34 CFR §300.320(a)(2); 34 CFR §300.320(a)(4); 8 NYCRR §200.4(d)(2)(iii); 8 NYCRR §200.4(d)(2)(v); see Application of the Board of Education, Appeal No. 14-104; Application of the New York City Department of Education, Appeal No. 13-121.

In this case, sufficient supporting documentary evidence and witness testimony supports the position that the child was not provided with a FAPE for the 2019-2020 and 2021-2022 school years and the DOE did not provide any evidence to the contrary. The District failed to present any testimonial evidence, nor did they submit any documentary evidence to prove that the IEP created in 2016 provided [REDACTED] with a free and appropriate public education.

Additionally, the District failed to present any testimonial or documentary evidence to support that the recommended program, could provide [REDACTED] with appropriate services or implement the 2016 IEP. The Department of Education also failed to present any documentary or testimonial evidence to prove that it considered adequate evaluative material.

Further, the District did not present any issues concerning equity in this matter.

For the reasons noted, I find the district failed to provide a FAPE for the student. ISSUE 2 – Appropriateness of Parent Placement

Analysis turns to the second prong of Burlington, under which the parents bear the burden of proving the appropriateness of the services obtained for the student. M.S. v. Board of Education of the City of Yonkers, 231 F.3d 96, 104 (2d Cir. 2000); Application of a Child with a Disability, Appeal No. 99-51; Application of a Child with a Disability, Appeal No. 94-29; Application of a Child with a Disability, Appeal No. 95-57. In order to meet that burden, the parents must show that the JCSE offered an educational program designed to meet student’s special education needs. School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 (1985). A unilateral placement is only appropriate if it provides education instruction specifically designed to meet the unique needs of a handicapped child. Gagliardo v. Arlington Central School District, 489 F.3d 105 (2d Cir. 2007).

In this regard, I find that the parents have sustained their burden of demonstrating the appropriateness of the requested bank of compensatory periods of SETSS and related services for the entire 2019-20 and 2020-21 school years. ISSUE 3 – Equities

The third prong of the Burlington decision requires a balancing of the equities in determining whether reimbursement should be awarded. The Individuals with Disabilities Education Act (IDEA) provides that an award of tuition reimbursement may be reduced or denied if notwithstanding their being advised that they should do so, parents neither inform the CSE of their disagreement with its proposed placement and their intent to place their child in a private school at public expense at the most recent CSE meeting prior to their removal of the child from public school, nor provide the school district with written notice of such information ten business days before such removal. 20 U.S.C. §1412(a)(10)(C)(iii). In this case, the Parent did inform the District of their disagreement with the proposed placement their intentions to place their child in a private school at the public school’s expense within the appropriate timeframe.

Factors relevant to equitable considerations include whether the withdrawal of the student from public school was justified. The statutory provision serves the important purpose of giving the school system an opportunity, before the child is removed, to assemble a team, evaluate the child, devise an appropriate plan, and determine whether a FAPE can be provided in the public schools. Greenland Sch. Dist. v. Amy N., 358 F.3d 150, 160 (1st Cir. 2004); see also Frank G., 459 F.3d 356 (2nd Cir. 2006).

In terms of equities, there is no evidence offered to support a claim that the Parent failed to raise an issue with the District’s evaluation. Under the circumstances, analysis of equities would not prevent an award of the compensatory periods of SETSS and related services for the entire 2019-20 and 2020-21 school years.

REIMBURSEMENT

A hearing officer is empowered to grant relief he, she or the court determines to be appropriate. 34 C.F.R. §300.516(c)(3). Once such remedy is reimbursement of tuition and related expenses. Florence Cunty Sch. Dist. Four v. Carter, 510 U.S. 7, IDELR 532 (1993); Sch. Comm. of Burlington v. Dep’t of Educ., 471 U.S.359, 103 LRP 37667(1985). A local education agency (LEA”) may be required to reimburse parents for their tuition payment to a private school for the services obtained for the student by his or her parents if the services offered by the LEA were inadequate or inappropriate, the services selected by the parents were appropriate under the Act, and equitable considerations support the parents’ claim for reimbursement. Id. In Burlington, the Court found that Congress intended retroactive reimbursement to parents by a Lea as an available remedy in a proper case. Burlington, 471 U.S.at 370-71. “Reimbursement merely requires [an LEA] to belatedly pay expenses that it should have paid all along and would have borne in the first instance had it developed a proper [IEP] Id. The mere fact that the private school placement does not bar the parents from reimbursement. Florence County Schl. Dist. Four v. Carter, 510 US. 7 (1993).

The initial inquiry is whether the student’s IEP and/or placement is/are “proper or “appropriate.” School Comm. Of Burlington, 471 U.S. at 369 and 374. However, this initial inquiry may go beyond the appropriateness of the IEP and/or placement, See, e.g., Forest Grove v. T.A., 57 U.S. 230 (2009) (child find); P.C. v. Oceanside Union Free Sch. Dist., 818 F. Supp. 2d 516 (E.E.N.Y. 2011) (eligibility) Mr. N.C. v. Bedford Cent. School. Dist., 300 F. App’s 11(2d Cir. 2008) inappropriate evaluation).

In this case, it was established that the placement was no longer able to meet the student’s needs as demonstrated by the testimony of the Director and the affidavit of the Parent.

Should the hearing officer determine that the school district did not offer a FAPE to the student, the next inquiry is whether the parent’s unilateral placement is appropriate” or “proper”. School Comm. Of Burlington, 42 U.S. at 369 and 370; see also Carter 510 U.S. at 15.

I find that the Parent demonstrated through documentary and testimonial evidence that the unilateral placement was appropriate for the student for the 2022-2023 school year.

The final consideration is the balancing of the equities. In this step, the hearing officer must examine the action of the parents and school district, including:

1. Whether the parents failed to provide the school district with timely notice, either at the most recent IEP team meeting or at least 10 business days prior to removal of the student from the public school of their rejection of the proposed public placement, including their concerns and intent to enroll the student in a private school at public expense. 20 U.S.C. § 1412(a)(10)(C)(iii)(I); 34 C.F.R. § 300.148(d)(1).

2. Whether prior to the student’s removal, the school district informed the parents of its intent to evaluate the student, but the parent did not make the student available for the evaluation. 20 U.S.C. §1412(a)(10)(C)(iii)(II), 34 C.F.R. § 300.148(d)(2).

3. Whether the parents’ action was unreasonable. 20 U.S.C. §1412(a)(10)(C)(iii)(III), 34 C.F.R. § 300.148(d)(3).

4. Whether the cost of the private placement is unreasonable. Florence County Sch. Dist. Four v. Carter, 510 U.S. at 16.

5. Whether there was a lack of parental cooperation with the school district.

C.G. v. Five Town Community Sch. Dist., 513 F.3d 279 (1st Cir. 2008)

In this case, the Parent gave timely notice, and the District failed to perform an appropriate evaluation of the Student. I find the Parent’s action and the cost to be reasonable. Lastly, the District failed to demonstrate lack of cooperation on the Parent’s part.

ORDER

1. The DOE failed to implement their recommendations that included SETSS or Speech-Language Therapy and therefore denied the student a FAPE for the 2019-2020 and 2021-2022 school years; and

2. The DOE shall fund a bank of compensatory periods of SETSS and related services for the entire 2019-20 and 2020-21 school years. Specifically, receive a bank of 400 periods of SETSS and^[80] hours of Speech-Language Therapy corresponding to the IT IS SO ORDERED.

Dated: October 9, 2023

Annette HIcks Gill

ANNETTE HICKS GILL

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 proceedings 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.

EXHIBITS

DEPARTMENT OF EDUCATION EXHIBITS

None

PARENT EXHIBITS

A. DPC 05/04/2022 4 pages

B. IESP 11/28/2016 8 pages

C. Affidavit of Parent undated 2 pages

Footnotes

[80] weeks during which the District failed to implement its recommendations.