New York City Department of Education, Impartial Hearing Decision

Case Number: 583230 – NYC: 234959

FINDINGS OF FACT AND DECISION

Student’s Name: REDACTED

School District: REDACTED

Impartial Hearing Officer: Ashley Grant

Date of Filing: 9/8/2022

Hearing Requested by: Parent

Date of Hearing: 12/21/2022

Record Close Date: 1/20/2023

Date of Decision: 2/3/2023

NAMES AND TITLES OF PERSONS WHO APPEARED ON 12/21/22:

For the Student:

REDACTED (“Parent Representative 1”)

REDACTED (“Parent Representative 2”), observing

REDACTED (“Parent”)

For the Department of Education:

REDACTED (DOE Representative)

BACKGROUND AND PROCEDURAL HISTORY

On 9/8/2022, the REDACTED (“Parent”) filed a due process complaint (“DPC”) against the New York City Department of Education (“DOE”) on behalf of REDACTED (“Student”), under Case No. 234959, 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 convene a Committee on Special Education (“CSE”) meeting, failed to create an IEP or IESP, and failed to offer viable providers to implement the Student’s last agreed upon services. The Parent seeks a compensatory education award requiring the DOE to fund three hours per week of 1:1 bilingual Yiddish Special Education Teacher Support Services (“SETSS”) from a private provider. Tr. 14:18-21. The Parent also seeks pendency. Ex. A, tr. 11.

On 10/14/2022, I was appointed the impartial hearing officer (“IHO”) for this case. At the request of the parties, I granted extensions of the timeline on 11/7/2022 and 12/21/2022. I scheduled the case for a combined pendency and due process hearing on 12/21/2022.

The DOE did not seek to introduce any exhibits or witnesses and made a brief opening statement indicating that “the District [would] not be putting on a case for the 2022/2023 school year and rests at this time.” Tr. 6:3-5.

In advance of the hearing, Parent Representative disclosed proposed exhibits A through I electronically, copying me. I admitted the Parent’s exhibits without objection. Tr. 6-7. These exhibits included an unsworn affidavit from Parent and a sworn affidavit from REDACTED, Education Director (“Provider”) of the REDACTED (“Service Agency”). Ex. G, H. DOE Representative indicated she did not plan to cross-examine either affiant witness. Tr. 7:18-24.

Parent Representative waived opening statement and declined to call additional witnesses. Tr. 8:2-7. I swore Parent in on the record and she testified to the truth of the statements in her unsworn affidavit, Exhibit H. Tr. 9-10. DOE Representative again declined to cross-examine Parent. Tr. 10:9-11.

Parent Representative made a closing statement. Tr. 11-14. DOE Representative stated the DOE’s position on Pendency (tr. 11:13-15) but did not make a closing statement.

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

The record in this matter closed on 1/20/2023.

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., 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 Student and Parent reside in New York City and that Student is attending REDACTED (“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. It is also undisputed that, although the DOE’s Committee on Special Education (“CSE”) has previously classified Student as a student with a speech or language impairment (“SLI”), the DOE failed to create an IEP or IESP in advance of the 2022-2023 school year and failed to implement any services for the 2022-2023 school year. Ex. A, tr. 12-13.

Parent alleges, and the DOE does not dispute, that the 9/12/2017 IESP (“2017 IESP”) is the most recently agreed-upon program for this student. Ex. A, H-1, tr. 9. The 2017 IESP recommends SEIT services three hours per week (“3x60”) and Speech-Language Therapy (“SLT”) for two thirty-minute sessions per week (“2x30”). Ex. B-1, B-19. Although the DPC indicates (ex. A-2) and Parent testified that the 2017 IESP mandated SEIT services with a 1:1 ratio, Parent’s Exhibit B shows that the 2017 IESP recommends SEIT services in a group of two. Ex. B-1, B-18. As the Parent did not address this discrepancy in her testimony, I do not credit her testimony regarding the ratio and instead credit as accurate the SEIT recommendation listed on the IESP. Ex. B. Parent also testified that the 2017 IESP recommended “Speech-language Therapy (2x30, 1:1, Yiddish Instruction).” Ex. H-1. I find this testimony to be similarly incredible as it conflicts with the 2017 IESP in evidence, which indicates that SLT was recommended in a 2:1 ratio. Ex. B-18; Tr. 11:2-5. Parent’s name and signature appear on the 2017 IESP (ex. B-3) and Parent testified that she agreed with the recommendations made by the CPSE at the September 2017 review. Ex. H-1. Without any testimony to explain these discrepancies as to the service ratios, I find that, at the time of the 2017 IESP, Student was mandated to receive both SEIT and SLT in groups of two. Ex. B. Prior to the 2022-2023 school year, and as of the date of the hearing, the Parent had not been contacted by the CSE to review Student’s services for the 2022-2023 school year, nor had the CSE developed an IEP or IESP for the present school year. Ex. H-2. The Parent contracted with Service Agency at a rate of $197 per hour to provide Student with three hours per week of 1:1 SETSS services. Id. The Parent’s contract with the Service Provider is in evidence. Ex. F. Service Provider began providing Student with SETSS services on or about 9/8/2022. Ex. G. SETSS Teacher, a NYSED-certified special education teacher for students with disabilities, provides these services. Ex. G. SETSS Techer uses a variety of multisensory instructional programs and utilizes assessments, observations, and daily session notes to measure Student’s credit. Id. With these supports, Student has made progress in reading, writing, social/emotional, and math skills. Id. Student requires the continuation of three hour of SETSS services on a 1:1 basis because she is performing below grade level in all content areas, struggles to focus, is easily distracted, and requires individualized instruction. Id. The cost of these services is $197 per hour, which is within the general market rate for SEIT/SETSS services in the greater New York City area. Id. Parent has noted improvement in Student’s academic and social skills with these services. Ex.H2.

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).

It is undisputed that the DOE has identified Student as a student with a disability (ex. A,

B) and the DOE has provided no explanation for why it created neither an IEP nor IESP for the 2022-2023 school year. Parent alleges and credibly testified that the DOE failed to create an updated IEP or IESP and failed to implement the last IESP, requiring the Parent to locate a provider independently. Ex. A, H. Provider credibly testified that the rate of $197 per hour for SETSS is within market rates. Ex. G. Although I do not credit the Parent’s testimony that the 2017 IESP recommended 1:1 services, the DOE has offered no evidence as to what services are appropriate for Student. In light of Students needs in the area of reading, writing and math, and testimony that Student has made progress with the SETSS services Parent requests (ex. E, G, H),

I find that the 1:1 SETSS that Provider recommends (ex. H), and Parent requests are reasonable.

The creation and 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.

By failing to create an IESP or IEP in advance of the 2022-2023 school year, and by failing to implement any previously agreed-upon services, 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 and failed to sustain its burden under the Education Law to demonstrate that it provided Student with a FAPE for the 2022-2023 school year.

In addition, 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 Parent asserts that the 2017 IESP describes Student’s last agreed-upon placement for the purposes of pendency (ex. A-3, tr. 11) and the DOE does not contest this fact, nor object to this request. Tr. 11:13-15. The DOE has not provided a cogent explanation as to why, in the absence of any dispute as to Pendency, it did not simply implement these services. However, as Parent asserts that DOE has failed to do so, I find that the 2017 IESP constitutes Student’s pendency placement.

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 Service Agency for 1:1 SETSS services at the rate of $197.00 per hour retroactive to the date of the filing of the due process complaint. Ex. A, Tr. 14.

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 the DOE did not create an IEP nor an IESP in advance of the 2022-2023 school year, that she received no communication from the DOE regarding a qualified SETSS provider and that, as a result, she identified a provider on her own. Ex. H. The provider Parent located charges $197.00 per hour for 1:1 SETSS. Ex. E. I find that Student requires three hours per week of individual SETSS services for the remainder of the 2022-23 school year. Given that Student is classified as SLI (ex. A) and 2017 IESP recommended SLT (ex. B), but neither party introduced evidence regarding Student’s current speech-language needs, I am ordering comprehensive evaluations, including a speech-language assessment, to determine what, if any, SLT Student requires going forward.

ORDER

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

1. ORDERED, that the DOE shall fund 1:1 SETSS services in Yiddish, by a provider of the Parent’s choosing at a rate of up to $197.00 per hour for three hours 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 and daily session notes for services rendered; it is further

2. ORDERED, that within 60 days of this order, the DOE shall seek the Parent’s consent to conduct comprehensive evaluations, including a speech and language evaluation; it is further

3. ORDERED, that within 30 days of the completion of the above-referenced evaluations, but no later than June 15, 2023, the DOE shall convene a CSE meeting to create an IEP and/or IESP for Student; it is further

4. 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

9/12/2017.

SO ORDERED.

DATED: February 3, 2023

/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

None

PARENT EVIDENCE

A. Impartial Hearing Request 09/08/2022 3 pages

B. Individualized Education Program (“IEP”)- 09/12/2017 21 pages

Pendency

C Letter from Parent to CSE Chairperson 6/2022 1 D Affidavit of Services Costs 11/30/2022 1 E SETSS Progress Report 11/23/2022 6 F Enrollment Contract 09/05/2022 3 G Affidavit of Testimony of PROVIDER 12/14/2022 4 H Affidavit of Testimony of PARENT Undated 2 I Letter on Behalf of Parent to CSE Chairperson 5/31/2022 1

IHO EXHIBITS