New York City Department of Education, Impartial Hearing Decision

CASE NUMBER: 579614 - NYC: 231617

FINDINGS OF FACT AND DECISION

Case Number: 231617

Student’s Name: REDACTED

District of Private

School Location: N.Y.C. Dept. of Ed., District # REDACTED Impartial Hearing Officer: William Yukstas

Date of Filing: 9/6/2022

Hearing Requested by: Parent

Date of Hearing: 12/8/2022

Record Close Date: 12/13/2022

Date of Decision: 12/20/2022

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/8/2022:

For the Student:

REDACTED (Parent’s Attorney)

REDACTED (Educational Director)

REDACTED (Parent)

For the District:

REDACTED (District or DOE’s Attorney)

BACKGROUND

Parent, through counsel, filed a Due Process Complaint (DPC) on or about 9/6/2022. P-A-7.^[1]

Parent alleges that the Department of Education (DOE or District) failed to implement an individualized education service plan (IESP) for the 2022-2023 school year for Student. P-A-2. Parent seeks a compensatory education award consisting of eight (8) hours per week of Special Education Teacher Support Services (SETSS), three (3) thirty (30) minute sessions of Speech-Language Therapy (SLT) per week, and one (1) hour of Occupational Therapy (OT) per week for the twelve (12) month school year at Provider’s^[2] prevailing rate. P-A-2; P-A-3.^[3]

In light of the foregoing and as more fully discussed below, I find that the DOE failed to implement the IESP, thereby denying Student a free appropriate public education (FAPE) on an equitable basis for the 2022-2023 school year, and that the relief Parent seeks is appropriate compensatory relief, subject to modification.

PROCEDURAL HISTORY

I was appointed on 9/14/2022. A prehearing conference was held virtually on 10/7/2022.

On 12/8/2022, both parties appeared virtually for a hearing. The DOE did not seek to introduce witness testimony nor any other evidence. The DOE conceded it had failed to implement an IESP for Student during the 2022-2023 school year. T:70(1-3).^[4]

Six exhibits presented by the Parent were accepted into the record. Included in Parent’s evidence were two (2) affidavits – one from Parent and one from the Educational Director for the Provider. Both affidavits were accepted into the record with no objection. The DOE cross-examined the affiants. Both parties made oral closing arguments. T:66(7) – 70(6).

FINDINGS OF FACT AND DECISION

After a full review of the record generated at hearing, I make the following findings of fact and determinations.

It is uncontested that the Student and Parent reside in New York City and the Student attended the Private School during the 2022-2023 school year. P-A-1. Furthermore, it is uncontested that the Private School is located within the geographic boundaries of the DOE. P-A-1. Similarly, it was uncontested that the Student is entitled to receive special education services this year. T:69(9-12).

Burden

Except 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); C.F. v. New York City Dep’t of Educ., 746 F.3d 68, 76 (2d Cir. 2014).

FAPE

The IDEA provides that children with disabilities are entitled to a FAPE. 20 U.S.C. § 1400 (d)(1)(A). A FAPE consists of specialized education and related services designed to meet a student’s unique needs, provided in conformity with a comprehensive written Individualized Education Program (IEP). 20 U.S.C. § 1401(9). A school district has offered a student a FAPE when (a) the board of education complies with the procedural requirements set forth in the IDEA; and (b) the IEP is developed through the IDEA's procedures and is reasonably calculated to enable the student to receive educational benefits. Bd. of Educ. of the Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206-07 (1982). To meet its substantive FAPE obligations, a district must offer a student an IEP that is “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.” Endrew F. v. Douglas County Sch. Dist. RE-1, 580 U.S. 386, 399 (2017).

Dual Enrollment

A board of education must offer a 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)(l)(A); Educ. Law § 4402(2)(a), (b)(2). 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). Under State law, however, parents who have privately enrolled their child in a nonpublic school may seek educational "services" for their child with a disability by filing a request in the district 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).^[5] Then, the district of location's Committee on Special Education (CSE) must review the request and "develop an [Individualized Education Services Program (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)(l).

Level of Service

As noted, in this case, there is no dispute that Student is entitled to services pursuant to an IESP. T:69(9-12). Also, there is no dispute that the DOE did not generate an IESP for the Student for the 2022-2023 school year. P-A-2.

There were two issues in dispute. First, the parties disagreed regarding the number of hours of SETSS services Student should receive each week. Second, the parties disagreed about whether the Provider’s rate for SETSS, SLT, and OT was excessive.

The DOE argued that Student was entitled to services pursuant to an IESP dated 5/15/2019. T:69(13-17); P-E. In the 5/15/2019 IESP, Student was scheduled to receive five (5) hours of SETSS, one and a half (1.5) hours of SLT, and one (1) hour of OT each week. P-E-10.

Parent stated that the 5/15/2019 IESP was inappropriate and was the subject of a previous DPC. P-A-2. Parent presented a 12/22/2016 IESP and argued that it represented the appropriate level of service for Student. T:66(7-14). The only difference between the two IESPs is the number of hours of SETSS services provided each week. The 12/22/2016 IESP recommends eight (8) hours of SETSS per week. P-D-16. The 5/15/2019 IESP, as noted, recommends five (5) hours of SETSS. P-E-10.

To start, the DOE failed to offer any evidence to support its argument. By not holding an IESP meeting for this year, the DOE has no up-to-date information to support its contention that the services contained in the 5/15/2019 IESP are appropriate.

Indeed, the DOE established that five (5) hours of SETSS would not be appropriate for Student via its cross-examination of the only two witnesses that testified – Parent and the Educational Director for the Provider, the agency that is contracted to provider SETSS, SLT, and OT services to Student.

The Educational Director for the Provider provided general information about the programming offered by the Provider and how Student is monitored. The Educational Director has never directly worked with Student. T:20(23-25). However, in her role as Educational Director, she had reviewed Student’s progress. T:20(20-22). In testimony that was amplified and echoed by Parent, the Educational Director noted that Student has significant delays in reading, math, and writing. T:29(9-21). Specifically, the Educational Director noted that Student’s “reading and comprehension levels are still far behind grade level.” T:29(13-14). Further, the Educational Director noted that Student is performing below a second-grade level in reading despite being in fifth grade. T:36(4-14).

Parent’s testimony regarding Student’s academic performance closely mirrored that of the Educational Director. Parent stated “my son … requires very intense therapy” to address his academic needs. T:45(16-20). Parent explained Student’s difficulty in more detail than the Educational Director noting, “reading comprehension is one area, he – translates into different subject areas, he has a hard time making meaning when he reads, specifically in reading it comes up with math as well as word problems…. He has an issue with words retrieval, so even if he’s getting more information and processing it, when he’s asked a question he has a hard time expressing himself or thinking of the right term.” T:51(1-9). Parent also testified that she believed that eight (8) hours of SETSS was necessary for Student. T:48(10-14). Overall, Parent amplified the Educational Director’s testimony with her first-hand, uncontradicted observations that Student had significant academic deficits and that it was possible even eight (8) hours of SETSS instruction may not be sufficient.

Accordingly, I credit the Parent and Educational Director’s affidavits and testimony to establish that Student is performing significantly below grade-level in all academic areas, particularly in reading comprehension, and needs an intensive level of academic support.

Given that the DOE presented no evidence to show why five (5) hours of SETSS would be appropriate and the Parent’s explanation of why eight (8) hours of SETSS would be better suited to serve Student, my order is to effectuate the services sought by the Parent.

Parent solely is seeking the implementation of the service plan outlined in the 12/22/2016 IESP. P-A-2.

Given the lack of an IESP for the 2022-2023 school year, I am ordering the DOE to convene to formulate an appropriate IESP for Student within thirty (30) days. Student’s performance is concerning, and the CSE must meet to review Student’s present levels of performance and craft a service plan to effectively meet his needs.

Parent alleges and credibly testified that the DOE failed to implement SETSS, SLT, or OT for the Student, and the DOE, which bears the burden of proof, has failed to introduce any evidence to the contrary. T:52(1-16).

The implementation of IESP services falls on the district of location 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). 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)(b)(1). Additionally, § 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.

A district cannot be absolved of its statutory obligation simply by being inactive in implementing the mandated services. The DOE had the obligation to provide services to Student in conformity with the IESP, at the level described above. Educ. Law § 3602-c(2)(a), (b)(l). In failing to do so, the DOE failed to provide Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district.

Compensatory Relief The remedy for a school district’s failure to provide appropriate equitable services required under Education Law § 3602-c is similar to the remedy for a school district’s failure to provide appropriate services under the IDEA. See Application of a Student with a Disability, Appeal No. 20-023, citing Doe v. E. Lyme Bd. of Educ., 262 F. Supp. 3d 11, 27 (D.Conn. 2017). Under the IDEA, courts can “grant such relief as the court determines is appropriate,” limited only by the restriction that “the relief is to be appropriate in light of the purpose of the Act.” Doe v. East Lyme Bd. Of Educ., 790 F.3d 440, 454 (2d Cir. 2015) (citation omitted). Equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in crafting an equitable award. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993). A “reimbursement award … must be supported by equitable considerations.” Application of a Student with a Disability, SRO No. 21-101. Although an award of damages is not available under the IDEA (see Polera v. Bd. of Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 486 (2d Cir. 2002)), “a court may award various forms of retroactive and prospective equitable relief, including reimbursement of tuition, compensatory education, and other declaratory and injunctive remedies.” Doe v. East Lyme, 790 F.3d at 454.

A hearing officer may award compensatory education relief in the form of supplemental special education or related services when there has been a denial of a FAPE. See P. v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). An award of compensatory services may be appropriate if a student has been denied appropriate services for an extended period, and if such deprivation of instruction can be remedied through the provision of additional services before the student becomes ineligible for instruction by reason of age or graduation. An award of additional services should aim to place a student in the position he or she would have been in had the district complied with its obligations under the IDEA. P. v. Newington, 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education can serve as a “replacement of educational services the child should have received in the first place," and any award "should aim to place disabled children in the same position they would have occupied but for the school district's violations of IDEA[.]" Reid v. Dist. of Columbia, 401 F.3d 516, 518 (D.C. Cir. 2005); see also Draper v. Atlanta Indep. Sch. Sys., 518 F.3d 1275, 1289 (11th Cir. 2008) (holding that "[c]ompensatory awards should place children in the position they would have been in but for the violation of the Act").

Compensatory education awards may include payment for out-of-pocket educational expenses incurred by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of a FAPE and the services are an appropriate remedy. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed App’x 874, 878-79 (7th Cir. 2015) (citing cases). Furthermore, under the IDEA, compensatory education awards can provide for direct payment to private providers. Indep. Sch. Dist. No. 283 v. E.M.D.H., 2022 WL 1607292, at *3 (D. Minn. 2022), citing Indep. Sch. Dist. No. 283 v. E.M.D.H., 960 F.3d 1073, 1084-85 (8th Cir. 2019).

The DOE is required under the due process procedures set forth in New York State law to address its burdens by describing its views, based on a fact-specific inquiry set forth in an evidentiary record, regarding an appropriate compensatory education remedy that would most reasonably and efficiently place the student in the position that he would have been but for the denial of a FAPE. The DOE had an opportunity during the impartial hearing to set forth its position regarding the appropriate compensatory education remedy. The DOE did not introduce any evidence regarding appropriate relief.

The Parent testified credibly that although the DOE offered vouchers for the mandated IESP services, the Parent was not able to identify any providers willing to accept the DOE’s rate. T:52(9-16). 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 to the parent. The DOE does not explain why it did not simply schedule the special education services as mandated by the IESP and, in essence, inform the Parent where and when the services would be available, and at which time the Parent would have the responsibility to produce the student to receive the services.

Parent’s DPC seeks funding for Provider at “Provider’s prevailing rate.” P-A-3. The Educational Director’s affidavit stated that the Provider charges $175 per hour for SETSS and $300 per hour for SLT and OT. The DOE cross-examined the Educational Director regarding rate, and, in summation, argued, generally, that the rates sought were excessive. T:68(8-16).

I am ordering the Provider to be funded at the prevailing rate testified to by the Educational Director for SETSS and OT. However, I am ordering that the rate for SLT be reduced to $250 per hour. The credentials presented by Parent for SLT at Provider show that the credentials of the therapist expired on 8/31/2022. P-I-2. The DOE did not inquire regarding the qualifications of the Provider or make any argument regarding the credentials.

The role of the Provider for related services like SLT is to provide oversight, not training, according to the Educational Director. T:39(16-24) (“[T]he related service … [providers] come with a lot of training. So, we’re not providing training to them as much, and supervising them as much. We’re relying more on their own expertise and knowledge.”). Here, it appears that the Agency failed to do even minimal oversight of the therapist assigned to provide Student with SLT by accepting a non-credentialed therapist. Therefore, I am reducing the funding by the amount of overhead charged by the Provider. Further, I am ordering that funding for SLT only be paid by District upon the submission of either updated credentials for the current SLT provider or submission of credentials of a properly certified therapist.

Parent’s Attorney submitted an SRO decision, In the Application of a Student with a Disability, SRO No. 21-101, to support the Parent’s contention that without an affirmative showing by the DOE or evidence about the inappropriateness of the market rate that the IHO must grant the rate sought by the Parent. T:67(17-25).^[6] As noted, equitable considerations are relevant in fashioning relief, and the court enjoys broad discretion in crafting an equitable award. Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 16 (1993).

I have considered both parties’ positions and find that the Student should have received instruction under the 12/22/2016 IESP from 9/8/2022 (the first school day following the date which the DOE was required to implement its recommendations) to 6/27/2023, the last day of school for the 2022-2023 school year.^[7] I find the recommendations of the 12/22/2016 IESP to be appropriate: this same number of sessions are appropriate to put the Student in the position they would have been in but for the DOE’s failure to implement the IESP.

There is no evidence or claim made by the DOE asserting or suggesting that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with a FAPE on an equitable basis for the 2022-23 school year.

ORDER

NOW, THEREFORE, IN LIGHT OF THE ABOVE FINDINGS OF FACT, IT IS HEREBY ORDERED THAT:

• • The DOE shall fund, as compensatory relief, the following services for the 2022-2023 school year:
• • Eight (8) hours of SETSS per week, retroactive to the first day of school, for the duration of the 2022-23 school year, by a provider of the Parent’s choosing at a rate of up to $175 dollars per hour;
• • One and one half (1.5) hours of SLT per week, retroactive to the first day of school, for the duration of the 2022-2023 school year, by a provider of the Parent’s choosing who is properly credentialed to work as a speech-language therapist in the State of New York at the time of the provision of the services, at a rate of up to $250 dollars per hour; and,
• • One (1) hour of OT per week, retroactive to the first day of school, for the duration of the 2022-2023 school year, by a provider of the Parent’s choosing at a rate of up to $300 per hour.
• • The DOE shall reimburse the Parent for the cost of the services described above within thirty (30) days of submission of proof of payment; and,
• • The DOE shall pay to the Providers listed above upon receipt of invoices for services rendered.
• • To the extent such services, as described in Paragraph (1) above, are not provided to the Student by 9/7/2023, any remaining services shall expire.
• • The DOE shall convene a CSE within thirty (30) days to develop an appropriate IESP for the remainder of the 2022-2023 school year and beginning of the 2023-2024 school year.

Dated: 12/20/2022

_____________________

William Yukstas

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.

DISTRICT EVIDENCE

Exhibit

Title

Date

Pages

N/A

PARENT EVIDENCE

Exhibit

Title

Date

Pages

A.

DPC

9/2/2022

7

C.

TDN

9/2/2022

2

D.

CPSE IEP

12/22/2016

20

E.

IESP

5/15/2019

13

F.

Affidavit of Parent

11/1/2022

3

G.

Affidavit of REDACTED

10/31/2022

4

H.

Contract

7/21/2022

1

I.

Provider Credentials

Undated

3

IHO EXHIBITS

Exhibit

Title

Date

Pages

N/A

Footnotes

[1] Exhibits will be cited as P (Parent) – A (Exhibit Letter) – Page Number throughout. Despite being dated 9/2/2022, the DPC was not submitted until 9/6/2022. P-A-7 (submission email dated 9/6/2022).

[2] Provider refers to the agency providing SETSS, SLT, and OT to the Student. The affidavit of the Educational Director for the Provider clarified that the Provider offers SETSS, SLT, and OT to the Student. P-G-3.

[3] The section of the DPC titled “Proposed Resolution” refers to the pendency request, which itself contains a request for the services outlined above.

[4] The transcript for the 12/8/2022 Due Process Hearing will be cited as T:page number (lines) or T:page number (beginning line) – T:page number (ending line) throughout.

[5] There is no record of whether the Parent made such a request in this matter. The District did not raise lack of notice as a defense. In any case, the District effectively waived this defense by acknowledging that Student is entitled to receive services for the 2022-2023 school year. T:69(9-12). Application of the Board of Education of the Lewiston-Porter Central School District, SRO No.18-088 (upholding finding that District waived notice defense because District met, reviewed program, and planned to implement the IESP for the school year in dispute, essentially conceding Student was eligible for services for the school year in dispute).

[6] Parent’s reliance on Application of a Student with a Disability, SRO No. 21-101 is notable because, in that decision, the SRO refused to order direct funding to the Parent because the Parent failed to provide specific financial documents, such as a “recent tax return or evidence regarding the parent’s assets, liabilities, income, or expenses”, outlining the Parent’s inability to pay to the provider. SRO No. 21-101, *20. Here, the Parent stated in her affidavit simply, “[p]aying for these services up front would be an extreme financial hardship for me. I would not be able to afford it without outside financial assistance.” P-F-2. Parent did not submit any of the financial documents suggested by the SRO in the decision Parent relies upon. Despite this failure, I am awarding direct funding since the Parent’s statement is clear, unchallenged by the DOE, and not contradicted by other evidence.

[7] In Parent’s DPC, Parent seeks twelve (12) month services. P-A-2. However, Educ. Law §3602-c(1)(a) defines “services” pursuant to an IESP as “educational for students with disabilities … [and] services related to such instruction provided during the regular school year for pupils enrolled in a nonpublic school.” (emphasis added).