New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 579473 - NYC: 231480

FINDINGS OF FACT AND DECISION

Student’s Name ^[1]: [REDACTED] (“Student”)

Date of Birth: [REDACTED]

School District: [REDACTED]

Hearing Requested by: [REDACTED] (“Parent”)

Request Date/Date Complaint Filed: September 6, 2022

Date(s) of Hearing: October 19, 2022

January 5, 2023

January 18, 2023

February 14, 2023

Actual Record Closed Date: February 25, 2023

Date of Decision: March 10, 2023

Date of Distribution if Different than Decision Date: n/a Hearing Officer: Rachel Gibbons, Esq.

NAMES AND TITLES OF PERSONS WHO APPEARED

OCTOBER 19, 2022

For the Student:

[REDACTED] Attorney (Via videoconference platform)

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 5, 2023

For the Student:

[REDACTED] Attorney (Via videoconference platform)

Parent Parent (Via videoconference platform)

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

JANUARY 18, 2023

For the Student:

None

For the Department of Education:

None

NAMES AND TITLES OF PERSONS WHO APPEARED

FEBRUARY 14, 2023

For the Student:

[REDACTED] Attorney (Via videoconference platform)

For the Department of Education:

None

INTRODUCTION AND PROCEDURAL HISTORY

This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed against the New York City Department of Education (“DOE” or “District”) on or about September 6, 2022. (P-Ex. A).^[2] The DPC alleged, inter alia, that the District failed to implement the Student’s most recent Individualized Education Services Program (“IESP”) for the 2022-2023 school year. (Id.)

This IHO was appointed on September 13, 2022. A prehearing conference was held on October 12, 2022, a pendency hearing on October 19, 2023. An interim order of pendency was issued on October 19, 2022. Status conferences were held on November 14, 2022 and November 28, 2022. A closed hearing on the merits took place on January 5, 2023, January 18, 2023 and February 14, 2023. The Parent was represented by [REDACTED] who submitted affidavits in lieu of direct testimony for three witnesses: the parent herself; [REDACTED], a supervisor (“Supervisor”) at [REDACTED], the agency (“Agency”) which provided unilaterally obtained Special Education Teacher Support Services (“SETSS”) for the Student during the 2022-2023 school year; [REDACTED], the financial director of the Agency (“Director”); and [REDACTED], the Student’s father. (See P-Exs. D, E, F and J). The Parent also testified at hearing. The Parent entered into evidence ten exhibits. (P-Exs. A-K).^[3] The District did not appear at any time in this matter. The District presented no witnesses and submitted no evidence. A closing brief was submitted by the Parent on February 24, 2023 and has been entered into evidence as IHO-Ex. I. The compliance date was extended four times to allow for settlement discussions, witness availability, and receipt of the closing brief. The final date of compliance date is March 20, 2023. The record was closed on February 25, 2023.

JURISDICTION

The due process hearing was held, and a decision in this matter is being rendered pursuant to the Individuals with Disabilities Education Act (hereinafter, “IDEA”), 20 U.S.C. § 1400 et seq. and its implementing regulations, 34 C.F.R. § 300 et seq.; the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.; Article 89 of the New York State Education Law; and §3602-c.

BACKGROUND

The Student is [REDACTED] years old and attends a private religious school in Brooklyn. (P-Ex. A p. 1). On February 11, 2022, the District’s Committee on Special Education (“CSE”) convened and developed an IESP which recommended, inter alia, three periods of groups SETSS per week and the related service of counseling. (P-Ex. B p. 10). During the 2022-2023 school year, the Student has received SETSS from a provider furnished by the Agency. (P-Ex. E p. 2).

ISSUES

The DPC alleged that the District failed to implement the recommendations of the 2022 IESP by failing to provide SETSS and the related service of counseling. (P-Ex. A p. 2). The Parent requests, as relief, a finding that the district’s failure to furnish providers is a denial of a free appropriate public education (“FAPE”); direct funding of the SETSS provided by the Agency during the 2022-2023 school year, at the Agency’s prevailing rate; compensatory education for SETSS and related services; and payment of the Parent’s attorney’s fees. (P-Ex. A).

FINDINGS OF FACT

1. The Student’s February 11, 2022 IESP has a disability classification of Learning Disability and recommended, inter alia, SETSS, in a group, three periods per week; counseling, individual service, one 30-minute session per week; and counseling, group service, one 30-minute session per week. (P-Ex. B p. 10). The IESP reflected that the Student had difficulty with decoding, writing, and social skills, (Id. pp. 3-4).

2. The Agency Supervisor testified via notarized affidavit. (P-Ex. E). The Agency has provided the Student with SETSS for the 2021-2022 and 2022-2023 school years. (Id. p. 2). The Agency has provided three periods of SETSS per week during the current year. (Id.; P-Ex. D p. 2) The SETSS teacher provides specialized instruction to the Student on a one-to-one basis and the Student has made progress. (Id.)

3. The progress report, dated June 15, 2022, noted that the Student has difficulty with reading, writing and self-regulation and that he had made progress. (P-Ex. H).

4. The Director testified, via notarized affidavit, that the Agency had provided and would continue to provide three hours of weekly SETSS during the 2022-2023 school year at the rate of $195 per hour. (P-Ex. F).

5. The Parent testified via affidavit and at hearing. (Transcript; P-Ex. D). She attended the February 2022 CSE meeting. (P-Ex. B p. 13). The Parent testified that she was unable to locate a SETSS provider using the list on the DOE website. (P-Ex. D p. 2). She submitted a ten-day notice on or about August 25, 2022. (P-Ex. D p. 2; see also P-Ex. C). She contacted the Agency and signed a contract on September 1, 2022 for the provision of three weekly hours of SETSS at the rate of $195 per hour. (P-Exs. D, I).^[4] The Parent acknowledged that she is liable to pay the Agency for the full amount if the District is not directed to pay. (P-Ex. D p. 2).

6. The Student’s father testified via affidavit that paying for the SETSS would present a financial hardship to the family. (P-Ex. J). The Parent submitted portions of their 2021 tax return to document their inability to pay for the SETSS. (P-Ex. K).

CONCLUSIONS OF LAW

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.^[5] 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.”^[6] 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).

IDEA and FAPE

The IDEA 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).

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.” (Endrew F. ex rel. Student F. v. Douglas Cty. Sch. Dist. RE-1, 137 S. Ct. 988, 1001 (2017)). 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 Mr. and Mrs. P. v. Newington Bd. of Educ., 546 F.3d 111, 114 (2d Cir. 2008); Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119 (2d Cir. 1998)). Children with disabilities must be educated with children who do not have disabilities to the maximum appropriate extent. The LRE mandate requires the determination of “whether education in the regular classroom, with the use of supplemental aids and services, can be achieved satisfactorily for a given child, and, if not, then whether the school has mainstreamed the child to the maximum extent possible.” (Mr. and Mrs. P. at 114). 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. If the evidence is evenly balanced, the party with the burden of persuasion must lose. 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.

The first part of the Burlington/Carter analysis considers whether the District has demonstrated that it provided a FAPE. The second prong of Burlington/Carter shifts the burden of proof and persuasion to the Parent, who must demonstrate that their unilateral placement of the Student is appropriate. (Educ. Law. 4404(1)(c)). The private placement selected by the parent does not have to be an approved special education school, (See Carter, 510 US 7 (1993)), nor does it have to meet the strict requirements of a special education placement by a public school district. However, a private placement must be tailored to meet the student’s individual needs. “A unilateral private 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 F3d 105 (2d Cir. 2007); Frank G. v. Board of Education, 459 F3d 356, 365 (2d Cir. 2006) (quoting Rowley, 458 U.S. at 188-89). The final part of the Burlington/Carter analysis determines whether equitable considerations support the award of tuition reimbursement. The IDEA permits a court to limit or deny reimbursement if the parents fail to provide notice of the student's private school enrollment in a timely manner, fail to make the student available for an evaluation, or act unreasonably in the course of the IEP's development. (See 34 CFR 300.148(d)); E.M. v. New York City Dep’t of Educ. 758 F.3d 442, 461 (2d Cir. 2014). In determining whether equitable considerations support a request for reimbursement, the courts will consider whether the parents have cooperated with the school district throughout the process to ensure that their child receives a FAPE. Bettinger v. New York City Bd. Of Educ., 2007 WL 4208560 (S.D.N.Y. November 20, 2007); Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656 (S.D.N.Y. 2005); see also S.W. v. New York City Dept of Educ., 646 F. Supp. 2d 346, 361-63 (S.D.N.Y. 2009). Excessive tuition or frequency of services may underpin a reduction in public reimbursement or payment for unilaterally obtained special education. (E.M. at 461). Direct Payment of Tuition The Parent has requested a remedy of retroactive direct payment in this matter. The Second Circuit has held that 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. (E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 453 (2d Cir. 2014); See also Mr. and Mrs. A. v. New York City Dep't of Educ., 769 F. Supp. 2d 403, 406 (S.D.N.Y. 2011)). E.M. v. Dep’t Educ. states “Indeed, where the equities call for it, direct payment fits comfortably within the Burlington-Carter framework.” (758 F. Supp. 2d at 453). These direct funding cases are often referred to as “Connors” cases after Connors v. Mills, 34 F. Supp. 2d 795 (N.D.N.Y.).

ANALYSIS

The threshold issue in this case is whether or not the District provided “equitable” special education services to the Student for the 2022-2023 school year. The Parent’s closing brief maintains that the Student is entitled to FAPE because “The fact that 3602-c incorporates 4404 by reference establishes that non-publicly placed students are entitled to a FAPE.” (IHO-Ex. I p. 2). This IHO disagrees. Under the IDEA, students in the United States are entitled to a free appropriate public education. This Student attends a private school. The IDEA confers no individual entitlement to special education or related services to students who are parentally placed in private schools. (See 34 C.F.R. 300.137[a]). The text of § 3602-c makes clear that in New York State parentally placed students are entitled to special education on an “equitable basis” as students who attend public schools. An “equitable” standard shall be applied.

The District failed to appear at conferences and at hearing, and has thus failed to carry its burden of proof and persuasion that it provided equitable services to the Student. The Parent has satisfied Prong I of the Burlington/Carter analysis. The record reflects that the unilaterally obtained SETSS services were appropriate. The Agency provided specialized instruction to the Student on a 1:1 basis and he made progress. (P-Exs. E, H). The Parent satisfied Prong II of Burlington/Carter. The equitable considerations support the Parent, as she attended the February 2022 IESP meeting and issued a ten-day notice prior to the start of the school year. (P-Ex. B p. 13; P-Ex. C). The District has not made any other assertions nor presented any evidence that the Parent acted in manner that would undercut the equitable considerations in her favor. The Parent prevails on Prong III of Burlington/Carter.

As relief, the Parent in the instant matter requests that the District pay the Agency directly. The father signed a contract that reflects he is responsible to pay for the SETSS if the District is not ordered to pay. (P-Ex. I). The Parent does not have the means to pay for the SETSS “up front” and has submitted a portion of their family tax return to establish their financial hardship. (P-Ex. K).

There is no need to address compensatory education in this decision as the Parent did not allege that the Student missed any SETSS or counseling due to the District’s failure to implement the 2022 IESP.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:

1. The District failed to provide special education services on an equitable basis to this Student for the 2022-2023 school year;

2. The District shall directly pay the Agency for three hours of SETSS per week for the ten-month 2022-2023 school year, at the rate of $195 per hour, upon receipt of signed invoices from the provider, with documentation of dates of service and a description of service rendered to the Student;

3. The District shall directly fund the related service of counseling, individual service, one 30-minute session per week and counseling, group service, one 30-minute session per week, for the 2022-2023 ten-month school year, at a reasonable market rate, to be provided by a State certified or licensed school psychologist, social worker, or counselor, upon receipt of signed invoices from the provider, with documentation of dates of service and a description of service rendered to the Student.

SO ORDERED.

DATED: March 10, 2023

Rachel Gibbons

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.

APPENDIX B – DOCUMENTATION ENTERED INTO THE RECORD

PARENT EXHIBITS

A. Due process complaint 9/02/22 6 pages

B. IESP 2/11/22 13 pages

C. Ten-day notice 8/25/22 2 pages

D. Affidavit of Parent 1/31/23 3 pages

E. Affidavit of [REDACTED] 1/04/23 3 pages

F. Affidavit re: Rate 1/25/23 1 page

G. Progress report 6/15/22 3 pages

H. Contract 9/01/22 1 page

I. n/a

J. Affidavit of [REDACTED] 2/22/23 2 pages

K. Tax return 2021 3 pages

IHO’S EXHIBITS

I. Closing brief 2/24/23 3 pages

Footnotes

[1] Personally identifiable information is attached as Appendix A, “Redaction Identification Page,” to this decision and must be removed prior to public distribution.

[2] Exhibits shall be referred to as follows: “P” for Parents’ Exhibit; “D” for District’s or Department’s Exhibits; and “IHO” for Impartial Hearing Officer’s Exhibits. Exhibits will be followed by the exhibit number and page numbers as needed and appropriate. Citation to the findings of fact contained infra will be referred to as “Findings” followed by the paragraph number.

[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered into the Record,” to this decision. There is no Parent exhibit “I.”

[4] This IHO notes that the actual contract was apparently signed by the Student’s father. (P-Ex. I).

[5] (“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).

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