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CASE NUMBER: 575780 - NYC: 228507
Case Number: 228507
Student’s Name: Student
Date of Birth: REDACTED
District: REDACTED
Hearing Requested By: Parent
Date(s) of Hearings: August 16, 2022; August 23, 2022; September 19, 2022; September 23, 2022; September 28, 2022; September 30, 2022
Actual Record Close Date: October 12, 2022
Hearing Officer: Virginia Tillyard
FINDINGS OF FACT AND DECISION
INTRODUCTION AND PROCEDURAL HISTORY
Parent filed a due process complaint (the “DPC”, Ex. A) under the Individuals with Disabilities Education Act, 20 U.S.C. section 1400 et seq., (the “IDEA”), Article 89 of the New York State Education Law and Part 200 of the Regulations of the New York State Commissioner on Education (“NYCRR”) on July 6, 2022 (Ex. A), alleging that the DOE denied Student a free appropriate public education (“FAPE”) for the 2022-23 school year.
BACKGROUND AND POSITION OF THE PARTIES
Student is now REDACTED years old and for the 2022-23 school year was unilaterally placed at the Private School, a private special education school in Manhattan, New York. His individualized education programs dated January 20, 2022 (the “January 2022 IEP”) and June 21, 2022 (the “June 2022 IEP”, Ex. J) identified him as a student with a disability classified with Multiple Disabilities. The Parent disagrees with both IEPS, and alleges that the DOE failed to provide Student with a FAPE for the 2022-23 school year. In the DPC, Parent requests as a remedy funding for tuition, related services and a 1:1 paraprofessional at the Private School and special transportation to and from the Private School for the 2022-23 school year. Parent unilaterally placed Student in the Private School for the 2022-23 twelve month school year.
The DOE did not file any due process response, make any pretrial motions, or attempt to introduce any exhibits. However, on the first day of the merits hearing, the DOE’s attorney requested an adjournment in order to prepare arguments and introduce evidence to show that this hearing officer does not have jurisdiction to hear this case because Student “aged out” of IDEA eligibility at the end of the 2021-22 school year. This hearing officer denied the motion for an adjournment and the request to introduce additional evidence due to the late request, the DOE’s lack of preparedness, and because more than five days had already elapsed after the deadline for disclosure of evidence to be used at the hearing.[1] Hearing transcript. Since the DOE raised a jurisdictional issue, however, parties were allowed to submit post hearing briefs to address legal arguments concerning jurisdiction.
The Parent submitted an exhibit packet.[2] All Parent’s exhibits were admitted, one over the DOE’s objection. Parent presented the affidavit testimony of the Private School Witness and the Parent, both of whom appeared for cross examination. Both parties made an opening statement on the record, and both parties submitted a written closing brief (IHO Exs. II and III).
School districts have the burden of proof, including the burden of persuasion and burden of production, in IDEA due process hearings, except that a parent or person in parental relationship seeking tuition reimbursement for a unilateral parental placement has the burden of persuasion and burden of production on the appropriateness of such placement (NYS Educ. Law § 4404(1)(c)). The standard required is a preponderance of the evidence. 20 U.S.C. §1415(i)(2)(C)(iii); see also Walczak v. Florida Union Free Sch. Dist., 142 F.3rd 119 (2nd Cir. 1998).
JURISDICTION
The DOE contends that I do not have authority to hear this case. I agree.[3] I will discuss the jurisdictional arguments in turn below.[4]
(1) The meaning of “extended eligibility”
Parent alleges FAPE denials with respect to the 2022-23 school year, and seeks a finding that the DOE denied Student a FAPE during the 2022-23 school year. Student turned twenty-one on REDACTED. I agree with the DOE that because Student became ineligible for the protections of the IDEA at the end of the 2021-22 school year (on or about June 30, 2022), he has no right to a FAPE for the 2022-23 school year, and no right to bring a due process complaint relating to the same. This involves a discussion of what “extended eligibility” means.
The IDEA requires states to make a FAPE available to children with disabilities between the ages of 3 and 21 inclusive. 20 U.S.C. § 1412 (a)(1)(A). New York law specifically provides IDEA eligibility to children through the end of the school year in which they turn 21. N.Y. Educ. Law § 4402(5).[5] See also N.Y. Educ. Law § 4401(1); 8 NYCRR 200.1(zz). In general, under the IDEA, "a [child with a disability] does not have a right to demand a public education beyond the age of twenty-one". Mrs. C. v. Wheaton, 916 F. 2d 69 (2d Cir. 1990). Once a student ages out of the IDEA, he or she is "no longer entitled to the protections and benefits of the [IDEA]". Honig v. Doe, 484 U.S. 305, 318 (1988); see Cosgrove v. Bd. of Educ., 175 F. Supp. 2D 375 (N.D.N.Y. 2001). The IDEA’s protections and benefits include, of course, the right to a FAPE and an annual IEP.
However, it is well settled, both in New York and in other jurisdictions, that where a gross violation resulting in a denial of FAPE took place before a student ages out, a court or hearing officer may award equitable relief in the form of compensatory education that may be used over a period of time (sometimes several years) after the age of IDEA eligibility. See, e.g. Burr v. Ambach, 441 IDELR 314 (2d Cir. 1988); Doe v. East Lyme Bd. Of Educ. et al., 65 IDELR 255 (2d Cir. 2015) French v. New York State Dep’t of Educ., et al., 57 IDELR 241 (2d Cir. 2011); Somoza v. N.Y.C. Dep't of Educ., 538 F.3d 106 (2d Cir. 2008); P. v. Newington Bd. of Ed., 546 F.3d 111, 123 (2d Cir. 2008). In discussions about “extended eligibility”, courts distinguish between statutory rights created by the IDEA, and equitable relief. Equitable relief may include specified services as part of an award of compensatory education, but only so far as necessary to remedy denials of a FAPE during the period of eligibility. See, e.g. M.W v. New York City Dep’t of Educ., et al., 15cv5029, 66 IDELR 71 (S.D.N.Y. 2015) and Ferren C. v. Sch. Dist. of Phila., 595 F. Supp. 2d 566 (E.D. Pa. 2009), both of which considered an award of compensatory education for FAPE violations that occurred during the period of eligibility, and granted equitable relief including (in the case of Ferren) a requirement that a district follow the procedures of the IDEA and develop IEPs for a student.[6] Both courts made a clear distinction between potential compensatory relief, and the students’ statutory right to a FAPE.[7]
However, I cannot find any authority in any jurisdiction concluding that “extended eligibility” includes a right to file a due process complaint pursuant to the IDEA or New York State law where the alleged violations of the right to a FAPE relate to a school year after the student’s right to statutory protections has ended. [8] I agree with court and SRO decisions finding that compensatory education is not an extension of the IDEA itself and agree that “[T]his logic would appear to apply further to preclude the parent's access to the due process protections of the IDEA to challenge IEPs developed by a CSE during the extension of eligibility…. As such, the parent would not be allowed to return to the due process hearing system to allege new faults by the district during the period of the student's extended eligibility.” SRO 21-098.
Here, the 2021-22 school year, the year in which Student turned 21, ended on June 30, 2022. The DPC was filed on July 6, 2022. The DPC alleges FAPE violations only with respect to the 2022-23 school year, which began on July 1, 2022. The DPC does not seek compensatory education. The relief sought is principally tuition reimbursement and special transportation.
Student was already awarded compensatory education for FAPE denials during the 2018-19, 2019-20 and 2020-21 school years in an earlier proceeding. A findings of fact and decision in case no. 196955, issued on July 19, 2021, (the “2021 FOFD”, Ex. E) ordered as follows, among other things:
1. ORDERED that, STUDENT shall have and Independent Educational Evaluation conducted by a professional of the Parent's choosing to determine what if any changes must be made to the Student's IEP as well as the extent of Compensatory Education he is to receive to be paid for by the Respondent;
2. IT IS FURTHER ORDERED that, STUDENT is to receive Compensatory Education in an amount to be determined by an Independent Educational Evaluation but not to exceed three (3) school years and such education is to extend past the age of twenty-one (21) if necessary;….
Ex. E-10.
Any obligation that the DOE has to provide educational services to Student as compensatory education during the 2022-23 school year originates only from the 2021 FOFD, not the IDEA. The 2021 FOFD also ordered tuition reimbursement at the Private School for the 2020-21 school year. Another findings of fact and decision, dated February 8, 2022, awarded tuition reimbursement at the Private School for the 2021-22 school year (the “2022 FOFD”, Ex. C). The due process complaint in that case sought principally tuition reimbursement and did not seek any compensatory education. Ex. C-2.[9]
In some cases, a hearing officer may order tuition payment as part of a compensatory remedy, either alone or together with other compensatory relief. That cannot be the case here, since Student has already sought and been compensated for past denials of a FAPE related to the 2018-19, 2019-20, 2020-21 and 2021-22 school years.
Based on the foregoing, I conclude that I have no authority to grant the relief requested on the basis of “extended eligibility”.
(2) New York signed Senate Bill S7866A
Parent argues that SB S7866A provides an “automatic extension of eligibility”. I do not agree. SB S7866A permits an extension of eligibility until 23 in certain situations where a student who has aged out has not received adequate educational services during the COVID pandemic. Its stated purpose is as follows:
To ensure that those students with disabilities who "age out" during the 2021-22 school year receive instruction and other services required by their individual education programs to compensate for the ongoing negative impacts of Covid-19, including remote instruction and inability to provide transition services.
See NY State Senate Bill S7866A (nysenate.gov)
The legislation itself reads as follows:
Section 1. Notwithstanding any provision of law, rule or regulation to the contrary, a school district may provide educational services in the 2022-23 and 2023-24 school years to a student who turned twenty-one years old during the 2021-22 school year and was enrolled in the school district and receiving special education services pursuant to an individualized education program. Such student may continue to receive such educational services until the student completes the services pursuant to the individualized education program or turns twenty-three years old, whichever is sooner.
§ 2. This act shall take effect immediately and shall expire and be deemed repealed June 30, 2024.
The legislation became effective as Chapter 223 of the Laws of 2022 on June 13, 2022. The meeting for the June 2022 IEP was on June 21, 2022, after the law became effective. Although at first glance Student appears to qualify under S7866A for educational services in the 2022-23 school year, S7866A does not mandate that the DOE provide those services. Rather, it gives the DOE the option to provide the services (“a school district may…” (emphasis added). Here, there is nothing in the record to show that the CSE was exercising that option (i.e. there is nothing to show that the DOE intended to use S7866A as the basis for the services recommended in the June 2022 IEP).
Second, as the DOE points out, Student does not qualify under the plain language of S7866A because he was not enrolled in the school district during the 2021-22 school year or receiving special education services pursuant to an IEP. He was placed at the Private School for the 2021-22 school year. The 2022 FOFD found that placement appropriate, and the DOE was ordered to pay for it.
Third, S7866A’s purpose is to compensate “for ongoing negative impacts of COVID-19”. The 2021 FOFD (which covered the 2018-19, 2019-20 and 2020-21 school years) explicitly discusses compensation for FAPE denials related to the COVID-19 pandemic, mentions the pandemic several times, and notes that the Parent was seeking three years of compensatory education in her due process complaint for that proceeding. Ex. E-3, E-7.[10] Parent also sought and has been awarded tuition reimbursement at the Private School for both the 2020-21 and 2021-22 school years in earlier proceedings. Exs. C and E. Since Parent had to prove the appropriateness of Student’s unilateral placement at the Private School in order to be awarded tuition reimbursement in both of those proceedings, she cannot now claim compensation for any alleged deficiencies in Student’s education program during those years. As discussed above, the DPC in this case does not seek any compensatory remedy. Nothing elsewhere in the record indicates that Student has been suffering any “ongoing negative impacts” from COVID-19.
Based on the foregoing, I conclude that S7866A does not provide a basis for me to order relief in this case.
(3) The June 2022 IEP The Parent argues that the CSE “agreed” that Student was eligible for special education services until the age of 25. However, the June 2022 IEP cannot be interpreted as creating statutory rights, such as making Student eligible for a FAPE for the 2022-23 school year.
The June 2022 IEP also refers to the 2021 FOFD as follows:
The school and parent were in agreement with the findings of the Assistive Technology Evaluation; his mother requested clarity on the implementation and delivery of the device. Team reviewed that it was hearing order mandated and will attempt to expedite the request. The team also discussed an understanding that [Student’s] hearing order mandated services until age 25; however, there is a computer issue which autogenerates termination dates in the IEP for 6/30/22 - the DOE team requested clarity on this from CSE leadership and will inform parent/school once new guidance is received.
Ex. J-22, J-63.[11]
As noted above, the order in the 2021 FOFD delegated the specifics of the compensatory education award to an independent education evaluation. [12] The CSE team members do not refer to any independent educational evaluation or specific award of compensatory education, only the “hearing order”. The June 2022 IEP does not explain what services they understood the 2021 FOFD to “mandate”. It is therefore not clear that they fully understood the language of the 2021 FOFD at all.
The independent educational evaluation that the 2021 FOFD orders is not in evidence. However, I do not need it in order to decide whether or not I have jurisdiction to hear the merits of this case. The 2021 FOFD clearly shows that any “extended eligibility” awarded is tied to the potential award of compensatory education. It does not even order the DOE to continue to develop IEPs for Student.[13] Whether the independent educational evaluation recommended some hours of compensatory services, or changes to Student’s IEP, or something else does not make any difference. If the DOE/CSE did not comply with the independent educational evaluation’s recommendations (and hence the 2021 FOFD’s compensatory award), then Parent’s remedy would be to attempt to seek enforcement of the 2021 FOFD.[14] I have not been asked to do that and I would anyway not have the power to do so. It is well settled that a hearing officer does not have the power to enforce an earlier order of an impartial hearing officer. Any request to enforce the 2021 FOFD would not be properly before me.
Secondly, an IEP is not a legally binding contract, and courts do not treat it as such if a breach of contract claim is raised. Van Duyn v. Baker Sch. Dist., 502 F.3d 811 (9th Cir. 2007), citing K. v. City of S. Portland, 407 F. Supp. 2D 290 (D. Maine 2006).[15] On the other hand, where a FAPE denial claim based on failure to implement is asserted, some courts have described an IEP as a “binding commitment” regarding services will be provided and “like a contract in that school district personnel are guaranteeing to provide” certain services. M.C. v. Antelope Valley Union High Sch. Dist. (9th Cir. 2017). An IEP is created by statute, the “centerpiece” of the IDEA system. R.E. v. New York City Dep't of Educ., 694 F.3d 167 (2d Cir. 2012). As a result, parents may refer to “enforcement” of terms of an IEP in connection with a claim that a FAPE was denied. See, e.g. J.F. v. New York City Dep't of Educ., 2013 U.S. Dist. LEXIS 63178 (S.D.N.Y. 2013). In this case, however, Student has no right to a FAPE for the 2022-23 school year. Accordingly, the June 2022 IEP does not provide me with a basis to grant the requested relief.
Based on all of the foregoing, Parent’s claims are not properly before me. Student has no right to a FAPE for the 2022-23 school year and I have no basis on which to order Parent’s requested relief. I am not further considering the DPC’s claims or the merits of the case because I lack authority to do so.
ORDERS
IT IS HEREBY ORDERED that the due process complaint in this matter is dismissed with prejudice.
October 12, 2022
_________________________________
Virginia Tillyard, 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
EXHIBIT LIST
DOE EXHIBITS
None
PARENT EXHIBITS
PARENT EXHIBIT
DATE
DESCRIPTION
NUMBER OF
PAGES
A 07/06/2022 Due Process Complaint IH # 228507 2022 - 2023 School Year 10
B 06/17/2022 Ten Day Notice 2022 - 2023 School Year 2
C 02/08/2022 Findings of Fact and Decision IH# 210993 2021-2022 School Year 16
D
Withdrawn
E 07/19/2021 Findings of Fact and Decision IH# 196955 2020-2021 School Year 13
F 01/07/2022 REDACTED IEP 2022-2023 School Year 71
G 03/07/2022 Prior Written Notice 6
H 06/14/2022 REDACTED Enrollment Contract 2022-2023 School Year 6
I 06/16/2022 Transportation Agreement 2022-2023 School Year 5
J 06/21/2022 DOE IEP 2022-2023 School Year 64
K 07/06/2022 Determination Report 1
L 09/12/2022 Affidavit of REDACTED 4
M 09/12/2022 Affidavit of REDACTED 5 IHO EXHIBITS Exhibit
Date
Description
Number of Pages
I
9/28/2022 – 9/30/2022
Email thread
5
II
10/7/2022
DOE closing brief
15
III
10/7/2022
Parent closing brief
15
Footnotes
[1] The DOE’s attorney referred to those documents during his opening statement. Parent requested that those references be stricken from the record. I am denying that request principally because an opening statement is not evidence. In addition, there is no prejudicial effect since this hearing officer is impartial and no jury is involved.
[2] Parent’s exhibit packet did not include Exhibit D, which had been withdrawn.
[3] The DOE did not raise any jurisdictional issues until the first day of the merits hearing, but that does not constitute a waiver. Courts may address jurisdictional defects sua sponte. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000) (“[F]ailure of subject matter jurisdiction is not waivable and may be raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking, the action must be dismissed.”). Jurisdictional rules govern “a court’s adjudicatory authority”. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160 (2010) (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004). Jurisdictional questions may even be raised on appeal. See Capron v. Van Noorden, 6 U.S. (2 Cranch) 126, 127 (1804) (judgment of the circuit court reversed, because the circuit court did not have jurisdiction).
[4] Parent’s closing brief allegation (see IHO Ex. III) regarding the DOE’s supposed failure to provide the Parent with notice that Student was “aging out” does not go to jurisdiction and is not fact.
[5] Section 4402(5) provides: “a child with a handicapping condition who reaches the age of twenty-one during... (b) the period commencing on the first day of September and ending on the thirtieth day of June shall be entitled to continue in such program until the thirtieth day of June or until the termination of the school year, whichever shall first occur”.
[6] The court in M.W. ordered injunctive relief as a form of equitable relief for the pendency of the claim, including that the student would remain eligible for special education services, high school credit-bearing instruction and to earn a high school diploma; 1:1 instruction in credit bearing classes, preparation for the Regents Exams and the opportunity to sit for the Regents Exams.
[7] The Ferren court carefully discussed the meaning of “extended eligibility” and reiterated emphatically “we agree that Ferren no longer has a statutory right to FAPE (and as an extension, to an IEP). That ended when Ferren turned twenty-one.”
[8] See, e.g. SRO 04-100; SRO 21-032 (cited by the DOE); SRO 19-090, 21-049 and 21-198. SRO 21-098, for example, says: This type of relief, if interpreted broadly to include an extension of the procedural due process entitlements set forth in the IDEA, including pendency, could result in many more years of eligibility than intended.... However, there is a difference between basing relief "on considerations enunciated under a legislated obligation and actually invoking the statutory provision" (Cosgrove, 175 F Supp 2d at 389). Thus, compensatory education is not a full extension of the IDEA itself and does not, for example, continue a student's stay-put rights (id. at 390). This logic would appear to apply further to preclude the parent's access to the due process protections of the IDEA to challenge IEPs developed by a CSE during the extension of eligibility. Otherwise, the extension of eligibility could result in potentially perpetual challenges to IEPs developed during the period of extension and additional awards of compensatory education. In other words, the extension of the student's eligibility must be viewed as an election of remedies by the parent as to the student's educational placement, subject only to further modification in judicial review, and the parent must be viewed as having assumed the risk that unforeseen future events could render the relief undesirable. As such, the parent would not be allowed to return to the due process hearing system to allege new faults by the district during the period of the student's extended eligibility. [citations and footnotes omitted]
[9] Neither the 2021 FOFD nor the 2022 FOFD attempted to extend Student’s statutory right to a FAPE beyond the age of eligibility, which would have been impermissible in any event.
[10] The 2021 FOFD summarizes the contents of the due process complaint in that case as seeking “extended eligibility for special education services” and “Compensatory Education for three (3) years to makeup for the Department of Education’s alleged lapses”. Ex. E-3.
[11] The June 2022 IEP contemplates an annual review meeting on June 21, 2023 (Ex. J-1). That cannot be interpreted as a guarantee. The annual review meeting date is simply required by the IEP form.
[12] That the 2021 FOFD delegates details of the compensatory education award to a third, non-judicial party is a separate issue. I am not addressing it since it is not necessary to this decision.
[13] Parent is simply misrepresenting the language of the 2021 FOFD when she claims that the 2021 FOFD finds that Student is “entitled to three years of compensatory education at REDACTED”. See IHO Ex. III-14.
[14] Parent mentions several times that the 2021 FOFD was not appealed and argues that it is therefore a prior finding and “res judicata”. See IHO Ex. III. If anything, that confirms the fact that the Parent’s remedy is to seek enforcement of the 2021 FOFD.
[15] See also J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119 (2d Cir. 2002).