NYSED redacts decisions, and its source files vary in quality. Gaps and text errors are original to the NYSED documents.
CASE NUMBER: 581432 - NYC: 233295
FINDINGS OF FACT AND DECISION
Case Number: 233295
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 14, 2022
November 14, 2022
Actual Record Closed Date: December 19, 2022
Date of Decision: December 20, 2022
Hearing Officer: Lisa S. Rusk, Esq.
NAMES AND TITLES OF PERSONS WHO APPEARED ON OCTOBER 14, 2022
For the Student:
[REDACTED], Attorney
For the Department of Education:
[REDACTED], Attorney
NAMES AND TITLES OF PERSONS WHO APPEARED ON NOVEMBER 14, 2022
For the Student:
[REDACTED], Attorney
[REDACTED], Parent
[REDACTED], Agency Representative
For the Department of Education:
[REDACTED], Attorney
INTRODUCTION AND PROCEDURAL HISTORY
This matter comes before the undersigned Impartial Hearing Officer (“IHO”) on Parent’s Due Process Complaint (“DPC") filed on or about September 6, 2022 (Ex. P-A)[2]. The undersigned impartial hearing officer (IHO) was assigned on September 28, 2022. There is no record of a District response to the DPC. A prehearing conference was held following the resolution period on October 14, 2022. At the request of the Parent, a pendency hearing was held on October 14, 2022. The Parent was represented by [REDACTED]. The District was represented by [REDACTED]. The District did not enter any evidence or testimony into the record. The Parent entered Exhibits A-C into the record. A pendency order was issued, dated October 14, 2022, retroactive to the date of filing of the DPC.
The hearing was continued on November 14, 2022. The Parent was represented by [REDACTED], and the District was represented by [REDACTED]. The District did not admit any testimony or exhibits into evidence (T:15). The District stated as its opening statement that “[the] District is not presenting a case. As such, we have not offered anything into evidence and are not offering any witness testimony. At this time, the District is prepared to rest.” (T:16). The Parent entered into evidence exhibits D-F.[3] The IHO asked that the contract between the Parent and provider be submitted for evidence. The IHO received the document on December 16, 2022 and inquired from the District if they had any objection to its introduction into evidence. The District advised via email that it had no objection, and the document was entered into evidence on December 19, 2022 as Parent Exhibit G. An order of extension was issued on November 14, 2022. The parties did not submit closing arguments or briefs.
The record was closed on December 19, 2022.
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., and the New York State Education Law, Educ. Law § 4404 et seq., and its implementing regulations, 8 NYCRR § 200.5 et seq.
BACKGROUND
The Student is a REDACTED year-old girl classified as a student with a speech or language impairment. The Committee on Special Education (CSE) met on November 4, 2021, and developed an individualized Education Services Program (IESP) for the Student. The IESP recommended individual speech and language therapy two times per week for 30 minutes in Yiddish and individual occupational therapy two times per week for 30 minutes in English. During the 2022-23 school year the Student was privately placed by the Parent at [REDACTED].
ISSUES
The DPC alleges that the District failed to implement the Student’s IESP for the 2022-23 school year. The Parent was unable to locate a provider from the District’s list of related service providers and independently arranged for the provision of service providers at their prevailing rate. The Parent seeks a finding that the District failed to implement its recommendations, an order that the District fund the providers located by the Parent at their prevailing rate and an order that the District fund a bank of compensatory related services for any services not provided for the 2022-23 school year. The District has not disputed the Parent’s claims.
FINDINGS OF FACT
As stated above, the District did not present a case. On September 6, 2022, the Parent emailed a notice to the District that she was in agreement with all services recommended in the November 4, 2021, IESP, but that she had been unable to locate providers at the District’s standard rate. She wrote that she had no alternative but to implement the IESP on her own and seek reimbursement or direct payment from the District. She asked if there were any alternatives to advise her ASAP (Ex. P-C). The District did not respond (T:26-27). The District’s CSE did not meet and develop an IESP subsequent to the November 4, 2021, meeting (T:24).
The Parent testified that she made many phone calls but was unable to find an available service provider from the District’s website. The District did not provide either a speech therapist or occupational therapist. (Ex. P-D-1-2; T:24-26). She contacted REDACTED (hereinafter referred to as “the Agency”) to provide the services, and they are providing the Student’s recommended related services for 2022-23. She testified that she signed a contract which obligated her to pay for such services. She stated further that paying for the services up front would pose extreme financial hardship, and she would not be able to pay without outside financial help from friends and family. She requests that the Student’s speech and occupational therapies be reimbursed at a reasonable market rate (Ex. P-D-2).
[REDACTED] asked the Parent one question to clarify if she rejected certain providers because they were not the “right provider”. The Parent clarified that none of the providers on the District’s website were available (T:27-28).
[REDACTED] testified that she is the owner and educational director of the Agency. She testified that the contracted rate for licensed speech-language therapy and occupational therapy providers is $195 per hour. She testified to her knowledge that this rate is less than or equal to the current market rate in the neighborhood. In addition to payment to the provider, the rate includes one-on-one supervision, educational resources and support, team coordination, professional development and materials, employment taxes, administrative costs, and overhead costs (Ex. P-E-2).
The director testified that both of the therapists providing services to the Student this year are licensed.[4] They provide the services in the Student’s mainstream school individually outside of the classroom. In addition to providing direct service, the providers prepare for sessions, create goals, write progress reports and meet with teachers and parents. The Student has shown progress with her providers, and her academic and social delays warrant the need for continued services at the current frequency and duration (Ex. P-E-3-4). The District did not ask the witness any questions on cross-examination (T:34).
The agreement with the Agency does not include a rate for services. It states that the Parent “acknowledges and agrees that it is fully and completely the parents’ responsibility to pay [the Agency] for any hours of services provided to the student for which [the Agency] has not received compensation or reimbursement from [the District]”. (Ex. P-G).
CONCLUSIONS OF LAW
The IDEA provides that children with disabilities are entitled to a Free Appropriate Public Education ("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 IEP (34 C.F.R. § 300.13). 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). In order 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, 137 S.Ct. 988 (2017). If a procedural violation has occurred, relief is warranted only if the procedural violation affected the student's right to a FAPE. 8 NYCRR §200.5[4]; J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir. 2000). School districts are obligated to provide the services listed in a Student’s IEP.
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], [c], 300.138[b]). Under New York State law, however, parents of a student with a disability who have privately enrolled their child in a nonpublic school may seek to obtain educational services for their child by filing a request for such services in the district of location where the nonpublic school is located on or before the first day of June preceding the school year for which the request for services is made (Educ. Law § 3602-c[2). In such circumstances, the district of location's CSE must review the request for services and develop an IESP for the student based on the student's individual needs in the same manner and with the same contents as an IEP (Educ. Law § 3602-c[2][b][1]). The CSE must "assure that special education programs and services are made available to students with disabilities attending nonpublic schools located within the school district on an equitable basis, as compared to special education programs and services provided to other students with disabilities attending public or nonpublic schools located within the school district” (id.). An eligible New York State resident student may, therefore, be voluntarily enrolled by a parent in a nonpublic school, but at the same time “dually enrolled” in the public school district for the purpose of receiving special education programming under Education Law § 3602-c.
In New York State, 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 payment for private educational services has the burden of persuasion and burden of production on the appropriateness of such placement or services (NYS Educ. Law § 4404(1)(c)). (School Committee of the Town of Burlington v. Department of Education, Massachusetts, 471 U.S. 359 [1985]; Florence County School Dist. Four v. Carter, 510 US 7 [1993]).
In order to meet her burden, the Parent must establish, by a preponderance of the evidence, that the unilateral placement or services provided “educational instruction specifically designed to meet the unique needs of the student” (Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 112 [2d. Cir. 2007]. However, the private school placement or services “need not meet the IDEA definition of a free and appropriate public education” or “state education standards or requirements” (Frank G. v. Bd. of Educ., 459 F.3d 356, 364 [2d. Cr. 2006]. The private placement need not provide certified special education teachers or an IEP. Parental placements are not subject to the same mainstreaming requirements as a school district placement. The private school placement or services must be reasonably calculated to enable the child to receive educational benefits, and must be likely to produce progress, not regression.
The standard to apply is whether "[the] unilateral private placement... provides educational instruction specifically designed to meet the unique needs of a handicapped child" Gagliardo, 489 F.3d at 115):
No one factor is necessarily dispositive in determining whether parents' unilateral placement is reasonably calculated to enable the child to receive educational benefits. Grades, test scores, and regular advancement may constitute evidence that a child is receiving educational benefit, but courts assessing the propriety of a unilateral placement consider the totality of the circumstances in determining whether that placement reasonably serves a child's individual needs. To qualify for reimbursement under the IDEA, parents need not show that a private placement furnishes every special service necessary to maximize their child's potential. They need only demonstrate that the placement provides educational instruction specially designed to meet the unique needs of a handicapped child, supported by such services as are necessary to permit the child to benefit from instruction. Gagliardo. 489 F.3d at 112 (quoting Frank G, 459 F.3d at 364-65).
Where parents “lack the financial resources to ‘front’ the costs of private school tuition, and in the rare instances where a private school is willing to enroll the student and take the risk that the parents will not be able to pay tuition costs – or will take years to do so- parents who satisfy Burlington factors have a right to retroactive direct tuition payment relief” (Mr. and Mrs. A. v. New York City Dept. of Educ., 769 F.Supp. 2d 403,428 [SDNY 2011].
ANALYSIS
It is clear that the District has failed to demonstrate that it either arranged for or delivered the agreed-to related services to the Student. There is no dispute that the Student was entitled to the related services as written on her IESP, and the District’s obligation to provide such services is non-delegable. The issue therefore, under a Burlington/Carter analysis is whether the related services delivered to the Student by the Agency constituted an appropriate unilateral placement and whether the cost of the services are reimbursable to the Parent or in this case whether they should be paid directly by the District to the provider upon proof that the Parent is legally obligated to pay but does not have adequate funds to do so and the equities support such payment.
The Student is entitled to individual speech language therapy and occupational therapy services 2 times per week for 30 minutes. According to the uncontroverted testimony, the Agency is providing those services utilizing licensed therapists, and the Student has shown progress. The District did not challenge the quality of the services, the rate charged by the Agency or the Parent’s ability to pay for the services. As the related services are the type and frequency which the District agrees it was required to provide, the Parent need not establish that the related services were specially designed to meet the Student’s needs (see Application of a Student with a Disability, SRO Appeal No. 21-096). As such, I find that the Parent is entitled to the payment of the services directly for the 2022-23 school year until such time that the District arranges for and pays for service providers of its own. I find further that the District has failed to raise any equitable issues that would prohibit the funding of the services by the District. Since there was no evidence that the Student has missed any related services, the request to award a bank of compensatory services is denied.
ORDER
Based upon the above Findings of Fact and Conclusions of Law, it is hereby ordered:
- • That the District shall pay the Agency directly for the speech language therapy and occupational therapy provided to the Student during the 2022-23 school year in accordance with the November 4, 2021 IESP unless or until it is superseded by a subsequent IESP or the District arranges for and funds its own related service providers.
SO ORDERED.
DATED: December 20, 2022
Impartial Hearing Officer
Lisa S. Rusk
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
PARENT DISCLOSURE
Letter
Date
Name of Document
Number of Pages
A 9/6/2022 Due Process Complaint 6
B 11/4/2021 IESP 11
C 9/6/2022 Ten Day’s Notice 2
D 11/13/2022 Affidavit of Parent 3
E 11/11/2022 Affidavit of [REDACTED] 4
F Provider Credentials 2
G
8/31/2022
Parent Contract
1
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 Parent’s 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.
[3] A more detailed list of the admitted exhibits is attached as Appendix B, “Documentation Entered Into the Record,” to this decision.
[4] The providers’ licenses are in evidence as Ex. P-F.