New York City Department of Education, Impartial Hearing Decision (No. 582939-20221229-234666-amended)

FINDINGS OF FACT AND DECISION - Amended

Case Number: 234666

Student’s Name: REDACTED

School District: District REDACTED

Impartial Hearing Officer: Ashley Grant

Date of Filing: 9/7/2022

Hearing Requested by: Parent

Date of Hearing: 12/7/2022

Record Close Date: 12/28/2022

Date of Decision: 12/29/2022 (original)

12/30/2022 (amended)

NAMES AND TITLES OF PERSONS WHO APPEARED ON [DATE]:

For the Student:

REDACTED (Parent Representative)

For the Department of Education:

REDACTED (DOE Representative)

BACKGROUND AND PROCEDURAL HISTORY

On 9/7/2022, the Parent filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE”) on behalf of Student, under Case No. 234666, pursuant to the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415(f), and New York State Education Law § 4404(1) and § 3602-c(2)(b)(1). Ex. A. In the Parent’s due process complaint, the Parent alleged that, for the 2022-2023 school year, the DOE failed to implement the Student’s mandated Special Education Teacher Support Services (“SETSS”) and related services with certified providers. The Parent seeks a compensatory education award requiring the DOE to pay private providers to implement the SETSS and related services “at enhanced market rates.” Id. The Parent also seeks pendency. Id.

On 10/12/2022, I was appointed the impartial hearing officer (“IHO”) for this case. A settlement conference with the parties’ representatives was held on 11/10/2022. At the request of the Parent, I granted an extension of the timeline on 11/14/2022. I scheduled the case for a combined pendency and due process hearing on 12/7/2022.

In advance of the hearing, Parent Representative disclosed proposed exhibits A through F electronically, copying me. I admitted the Parent’s exhibits without objection. Tr. 7-8. These exhibits included sworn affidavits from the Parent and from Administrative Director of the Service Agency (“Director”). Ex. D, E. DOE Representative indicated that she did not have any questions for the Parent but did cross-examine the Director. Tr. 13.

DOE Representative did not seek to introduce any exhibits or witnesses and made an opening statement arguing simply that “the evidence presented will demonstrate that the Student is not entitled to the services.” Tr. 8. In response to my inquiry, DOE Representative stated that the DOE agreed with the Parent’s proposed pendency program. Tr. 33:16-24. Both parties made closing statements and I went off the record. Tr. 34-38.

A list of the documentary evidence in this proceeding is appended to this Order.

Upon receipt of the transcript in this matter, I noted that I had erroneously stated the wrong student’s name and case number at the beginning of the hearing. Tr. 4:5-6. On 12/28/2022, I redacted the other student’s name and sent the redacted transcript to the parties noting my mistake. Representatives for both parties confirmed via email that the transcript was, in fact, the hearing of Student. Copies of those emails are appended as IHO Exhibit 1.

The record in this matter closed on 12/28/2022.

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 Art 89 § 4404 et seq., and its implementing regulations, 8 N.Y.C.R.R. Part 200.

FINDINGS OF FACT

After a full review of the record generated at hearing, my findings of fact are as follows:

It is uncontested that the Student and Parent reside in New York City and that the Student is attending the Private School for the 2022-2023 school year. Ex A. It is also uncontested that the Private School is located within the geographic boundaries of the DOE. Ex. A. Parent alleges that the DOE failed to create an IEP in advance of the 2022-2023 school year, and failed to implement the most recent IESP, dated 04/06/2020. Tr 9, Ex. A. Parent did not challenge the content of the 04/06/2020 IESP, merely the DOE’s failure to implement these services. Ex. A, B.

Parent alleges, and the DOE does not dispute, that the 04/06/2020 IESP (“the IESP”) is the most recent program for this student. Ex. A, B, Tr. 9. The IESP mandates SETSS five periods per week in English, without specifying the length of a “period.” Ex. B-9. It also mandates three 30-minute (“3x30”) of individual occupational therapy (“OT”) in English and 2x30 of group counseling services in English. Id. Prior to the 2022-2023 school year, Parent received no communication from the DOE placing the Student with a qualified SETSS provider. Ex. E-1. The Parent, after notifying the DOE on 8/29/2022 of her intent to do (Ex. D, E-2), contracted with a private SETSS provider at a rate of $195 per hour (Ex. E-2, F). The Parent’s contract with the Services Provider is in evidence. Ex. F. Service Provider began providing Student with SETSS services on or about 9/12/2022. SETSS Teacher, a NYSED-certified special education teacher for students with disabilities, provides these services. Ex. E.

Parent testified credibly that Occupational Therapist had been providing Student’s OT services from the beginning of the school year. Ex. E-2. Then, sometime on or around October 31, 2022, Occupational Therapist informed Parent that she would not be available to provide Student services. Id. Parent emailed the District to inquire about implementation of OT services, but, as of November 30, 2022, had neither receive an OT provider nor communication from the DOE. Id. Service Provider has the capacity to provide OT services at a rate of $150 per half-hour session. Id., Ex. F-2. Neither party introduced evidence regarding the DOE’s implementation of counseling services.

LEGAL FRAMEWORK

Burden

Except for 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).

Pendency

The IDEA and the New York State Education Law require that a student remain in his or her then current educational placement, unless the student’s parents and the board of education otherwise agree, during the pendency of any proceedings relating to the identification, evaluation, or placement of the student. 20 U.S.C. § 1415(j); Educ. Law §§ 4404(4), 4410(7)(c); 34 CFR § 300.518(a); 8 NYCRR § 200.5(m); Student X v. New York City Dep’t of Educ., 2008 U.S. Dist. LEXIS 88163, at *58-59 (E.D.N.Y. Oct. 30, 2008); Bd. of Educ. v. O'Shea, 353 F. Supp. 2d 449, 455-56 (S.D.N.Y. 2005); Application of a Student with a Disability, Appeal No. 14-024; Application of the Dep’t of Educ., Appeal No. 08-061.

Pendency has the effect of an automatic injunction, and the party requesting it need not meet the requirements for injunctive relief such as irreparable harm, likelihood of success on the merits, and a balancing of the hardships. Zvi D. v. Ambach, 694 F.2d 904, 906 (2d Cir. 1982); see Wagner v. Bd. of Educ., 335 F.3d 297, 301 (4th Cir. 2003); Drinker v. Colonial Sch. Dist., 78 F.3d 859, 864 (3d Cir. 1996).

Under the IDEA, the pendency inquiry focuses on identifying the student’s then-current educational placement. Mackey v. Bd. of Educ., 386 F.3d 158, 163 (2d Cir. 2004), citing Zvi D., 694 F.2d at 906. Although not defined by statute, the phrase “then-current placement” has been found to mean either: (1) the placement described in the student’s most recently implemented Individualized Education Program (“IEP”); (2) the operative placement actually functioning at the time when the due process proceeding was commenced; or (3) the placement at the time of the previously implemented IEP. Dervishi v. Stamford Bd. of Educ., 653 Fed. App’x 55, 57-58 (2d Cir. June 27, 2016), quoting Mackey, 386 F.3d at 163; see also T.M. v. Cornwall Cent. Sch. Dist., 752 F.3d at 170-71 (holding that the pendency provision “requires a school district to continue funding whatever educational placement was last agreed upon for the child”); see Doe v. E. Lyme Bd. of Educ., 790 F.3d 440, 452 (2d Cir. 2015) (holding that a student's entitlement to stay-put arises when a due process complaint notice is filed); Susquenita Sch. Dist. v. Raelee S., 96 F.3d 78, 83 (3d Cir. 1996); Letter to Baugh, 211 IDELR 481 (OSEP 1987). The term “thencurrent educational placement” in the stay-put provision typically refers to the child’s last agreed-upon educational program before the parent requested a due process hearing to challenge the child’s IEP. DePaulino v. New York City Dep’t of Educ., 959 F.3d 519, 532 (2d Cir. 2020).

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., 137 S.Ct. 988, 999 (2017); see, e.g., 20 U.S.C. § 1412(a)(l)(A); Educ. Law §§ 4402(2)(a), (b)(2).

Dual Enrollment

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 C.F.R. § 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). Then, the district of location’s CSE must review the request 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)(l).

The District argues that the Student is not entitled to services because Parent did not request IESP services prior to June 1st, as required by 3602-c(a). Tr. 34-35. However, it is undisputed that the DOE has identified Student as a student with a disability (ex. B) and the DOE has provided no explanation for why, in the absence of June 1 notice, it did not create an IEP for the 2022-2023 school year, as is its obligation under 8 NYCRR 200.4(e)(1)(ii). In fact, the District concedes that if the IHO were to award services, such services should be based on the 2020 IESP. Tr. 6. Parent alleges and credibly testified that the DOE failed to implement the Student’s SETSS, which required the Parent to locate a provider independently. Ex. A, E. Director credibly testified that the rate of $195 per hour for SETSS and $150 per 30-minute session of OT are within market rates. Ex. F, Tr. 31, 32. The DOE provided no evidence to the contrary. As such, I find that the SETSS and OT services Parent requests are reasonable.

Regarding counseling services, Parent alleges broadly that the DOE did not implement the Student’s 2020 IESP (ex. A, D) and DOE has introduced no evidence, nor made any claim that these services have been implemented. As such, I find that the DOE failed to meet its burden of proving that it implemented counseling services.

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, section 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 to implement services for the student simply by being inactive in implementing the mandated services. The DOE had the obligation to create a new IEP and/or IESP, or to provide services to the Student in conformity with the IESP. Educ. Law § 3602-c(2)(a), (b)(l). By failing to provide the Student with the Student’s mandated SETSS, OT and counseling, the DOE failed to provide the Student with services on an equitable basis as compared to other students with disabilities attending public or nonpublic schools located within the school district and failed to sustain its burden under the Education Law to demonstrate that it provided the Student with a FAPE for the 2022-2023 school year.

In addition, the Student is entitled to pendency. The purpose of the IDEA’s pendency provision is “to provide stability and consistency in the education of a student with a disability.” Application of a Student with a Disability, No. 20-198 (citing Honig v. Doe, 484 U.S. 305, 323 (1987) (further citations omitted). The central inquiry in pendency is identifying a student’s thencurrent educational placement; here the parties agree that the IESP dated 04/06/2020, describes Student’s last agreed-upon placement for the purposes of pendency. Ex. B, Tr. 5:20-6:15.

Requested Relief

The relief requested by the Parent is equitable in nature, as the Parent is asking me to devise an appropriate remedy to address the DOE’s failure to provide the Student with a FAPE on an equitable basis for the 2022-2023 school year. Specifically, the Parent has requested that the IHO order the DOE to pay the Service Provider for SETSS services at the rate of $195.00 per hour retroactive to the date of the filing of the due process complaint on 9/07/2022. Ex. E, Tr. 37. The Parent also seeks “makeup” OT services for any sessions missed from 11/1/2022 through the end of the 2022-2023 school year (tr. 37), and a bank of counseling services to compensate for any such services not implemented.

The Supreme Court has emphasized that relief under the IDEA depends, in part, on “equitable considerations.” Sch. Comm. of Town of Burlington, Mass., v. Dep’t of Educ. of Mass., 471 U.S.359, 374 (1985); Carter, 510 U.S. at 15-16. As previously discussed, “when a school district denies a child a FAPE, the courts have ‘broad discretion’ to fashion an appropriate remedy.” Boose v. District of Columbia, 786 F.3d 1054, 1056 (D.C. Cir. 2015) (citing Carter, 510 U.S. at 15-16). In actions brought under the IDEA alleging a denial of FAPE, “the court shall 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, 790 F.3d at 454.

An appropriate equitable remedy for a denial of FAPE can include an award of compensatory education. E.M. v. New York City Dep’t of Educ., 758 F.3d 442, 451 (2d Cir. 2014). The Second Circuit has stated, “[t]he IDEA allows a hearing officer to fashion an appropriate remedy, and we have held compensatory education is an available option under the Act to make up for denial of a free and appropriate public education.” P. ex rel. Mr. & Mrs. P., v. Newington Bd. of Educ., 546 F.3d 111, 123 (2d Cir. 2008). Compensatory education is “prospective equitable relief” that requires a school district to fund education “as a remedy for any earlier deprivations in the child’s education.” Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 109 N.2 (2d Cir. 2008). Courts “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. Unlike ordinary IEPs “that need only provide ‘some benefit,’ compensatory awards must do more —they must compensate.” Reid v. Dist. of Columbia, 401 F.3d 516, 525 (D.C. Cir. 2005) (emphasis in original). Compensatory education is a “replacement of educational services the child should have received in the first place,” and an award of compensatory education “must be reasonably calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.” Reid, 401 F.3d at 518, 524. Compensatory education awards can be used to remedy a school district’s substantive as well as its procedural violations of FAPE. Doe v. East Lyme, 790 F.3d at 456. Additionally, compensatory education awards may include reimbursement for out-of-pocket educational expenses paid by a parent for services not delivered to a student, provided the school district’s failure to provide those services constitutes a denial of FAPE and the services are an appropriate alternative. Foster v. Bd. of Educ. of the City of Chicago, 611 Fed. App’x 874, 878-79 (7th Cir. 2015); Batchelor v. Rose Tree Media Sch. Dist., 759 F.3d 266, 277-78 (3d Cir. 2014).

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 she received no communication from the DOE regarding a qualified SETSS provider and that she felt she had no choice to identify a provider on her own. Tr. E-1. The provider Parent located charges $195.00 per hour for SETSS and $150.00 per half hour for OT services. Ex. E. 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 district’s 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, at which time the Parent would have the responsibility to produce the Student to receive the services.

I have considered both parties’ positions and find that the Student should have received instruction and should continue to receive instruction under the IESP for the entire 10-month 2022-2023 school year.

The DOE argues in closing that Student is not entitled to services because the Parent did not provide June 1st notice. Tr. 34-35, Ex. D. However, the DOE introduced no evidence in support of this claim, nor any other evidence to indicate that the Parent failed to cooperate with the DOE or interfered in any manner with the DOE’s obligation to provide the Student with either a FAPE via an IEP and/or equitable services for the 2022-2023 school year.

ORDER

Based above the above Findings of Fact, IT IS HEREBY:

1. ORDERED, that the DOE shall fund SETSS services, by a provider of the Parent’s choosing at a rate of up to $195.00 per hour for 5 periods per week for the entire 2022-2023 10-month school year.

a. Such services shall be paid to the provider within 30 days of receipt of invoices for services rendered; it is further

2. ORDERED, that the DOE shall fund OT services, by a duly qualified provider of the Parent’s choosing at a reasonable market rate of up to $150.00 per half hour for 3x30 minutes per week from November 1, 2022 through the end of the 2022-2023 school year.

a. Such services shall be paid to the provider within 30 days of receipt of invoices for services rendered; it is further

3. ORDERED, that the DOE shall fund a bank of counseling services, by a duly qualified provider at a reasonable market rate, for 2x30 minutes per week for the entire 2022-2023 10-month school year.

a. Such services shall be paid to the provider within 30 days of receipt of invoices for services rendered; it is further

4. ORDERED, that within 60 days of this order, the DOE shall seek the Parent’s consent to conduct comprehensive evaluations, and shall convene a CSE meeting to create an IEP and/or IESP for Student; it is further

5. ORDERED that, retroactive to the filing of the DPC, the DOE shall provide during the pendency of this matter, the program and related services described in the IESP dated

4/6/2020.

SO ORDERED.

DATED: December 30, 2022

/Ashley Grant/ (signed electronically)

Impartial Hearing Officer

Ashley Grant

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

PARENT EVIDENCE

A. Impartial Hearing Request 09/07/2022 5 pages

B. CSE IESP 4/6/2020 12 pages

C. Parent Agreement 6/23/2022 2 pages

D. Parent Letter 8/29/2022 1 page

E. Parent Affidavit 11/30/2022 2 pages

F. Agency Affidavit 11/30/2022 2 pages

IHO EXHIBITS